436
Opinion of the Court
Water that is not purchased under either class simply flows through the canal into the Chowchilla River. As the Government points out, that excess may include flood water. However, given the fact that the canal can accommodate a flow of 1,200 cubic feet per second, which amounts to about 2,380 acre-feet per day, it is entirely possible that over the span of a year, several times the amount of Class 1 and Class 2 waters described in the papers submitted by the Government could flow through the canal without causing anything approaching a flood. Nevertheless, according to the Government, because the Madera Canal is available to divert water that might otherwise produce a flood on the San Joaquin and flood control is among the purposes served by the canal, § 702c immunity must attach to all the water that flows through the canal. Under the Government's approach, this would be true even if the water never approached flood stage and the terminus of the canal was parched at the end of the summer. Admittedly, it is possible to read the "related to" portion of the dictum from James to support that result, but neither the language of the statute itself, nor the holding in James, even arguably supports such a strange conclusion. Accordingly, we disavow that portion of James' dicta.
V
This case does raise a difficult issue because the property damage at issue was allegedly caused by continuous or repeated flows occurring over a period of years, rather than by a single, discrete incident. It is relatively easy to determine that a particular release of water that has reached flood stage is "flood water," as in James, or that a release directed by a power company for the commercial purpose of generating electricity is not, as in Henderson v. United States, 965 F. 2d 1488 (CA8 1992). It is, however, not such a simple matter when damage may have been caused over a period of time in part by flood waters and in part by the routine use of the canal when it contained little more than a trickle. The
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