concurring and dissenting.
I concur in part I (Facts and Prior Proceedings), part IV (A Provision Defining a Water Right as for “Irrigation Season” Can Be Stated as an Element of a Water Right), part V (Incidental Stock Watering as a General Provision Is Not Necessary to Define a Water Right or for the Efficient Administration of a Water Right), part VI (Use of “Excess Water” Cannot Be Decreed as a Water Right), and part VII (Conclusion) of the Court’s opinion. I respectfully dissent from parts II (Definition of a General Provision) and III (A Provision Regarding Firefighting). In my view, the SRBA district court correctly decided these issues. The portions of the conclusion contained in the SRBA district court’s decision quoted below succinctly express my view of the correct resolution of the issues decided in the parts from which I dissent:
None of the proposed general provisions on firefighting, irrigation use ... constitute statutorily recognized general provisions because none applies [to] all water *417rights recommended in the Director’s Report.
Firefighting cannot be implied as a purpose of use included in irrigation uses. It is not necessary to define irrigation rights nor is it necessary for their administration. SILAK, Justice, concurring and dissenting.
I concur fully in Parts I, II, III, IV, and V of the Court’s opinion. However, I must respectfully dissent in part from Part VI of the Court’s opinion. I agree with the portion of Part VI in which the Court holds that “excess” or “high flow” water is not subject to a water right. However, rather than ruling as a matter of law that “excess” water is not necessary for the efficient administration of water rights, I would remand this portion of the appeal for a factual determination regarding the provision’s necessity. In Part II of this opinion, we hold that “[wjhether a general provision is ‘necessary’ depends upon the specific general provision at issue and involves a question of fact, (defining the proposed general provision and the circumstances of its application), and a question of law, (determining whether the general provision facilitates the definition or efficient administration of water rights in a decree).” In my view, the question of fact has not been resolved. Administration of “excess” water is a long standing practice in Idaho. The parties should have been permitted to adduce proofs on that historic use so that the necessity of including a general provision could be more fully assessed. Thus, I would remand the matter for a factual determination consistent with this opinion.
DRESCHER, J. Pro Tem., concurs in Justice SILAK’s opinion.