9353

• UCREFRP Catalog Number: 9353
• Author: Hill, J. R. J.
• Title: Federal Reserved Rights Claims for Instream Flows.
• USFW Year: 1990.
• USFW - Doc Type: Denver.
• Copyright Material: NO

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terms.
a. "Unimpaired" as used in the National Park
Service Act, 16 U.S.C. § 1, or in the
Wilderness Act, 16 U.S.C. § 1131.
b. "Preserved in ... free-flowing condition.
Wild and Scenic Rivers Act, 16 U.S.C. § 1271.
C. The problem of quantification for an instream reserved
right for such areas has at least two dimensions.
1. The first dimension is legal.
a. The amount of water reserved is the amount of
water necessary to fulfill the primary purpose
(or purposes) of the reservation -- no more.
Cappaert v. United States, 426 U.S. 128, 138
(1976). The Supreme Court also used the term
"minimal need." Id. at 141.
b. Queries.
(1) If the purpose of the reservation is to
maintain an area "unimpaired for the
enjoyment of future generations" as in
the case of national parks, how is the
Cappaert "minimally necessary" rule to be
applied?
(2) In the case of a wild and scenic river,
how is the "minimally necessary" rule to
be applied to fulfill the Act's express
purpose of preserving the river in its
"free-flowing" condition where "free-
flowing" is defined as "existing or
flowing in natural condition?"
(3) What did Congress mean when it expressly
reserves water and states that the
designation shall not be construed as a
reservation of quantities "greater than
necessary to accomplish [the Act's]
Purposes?"
2. The second dimension is technical.
a. How do you quantify the amount of water
necessary to keep a national park
"unimpaired?"
b. How do you account for the natural extremes in