Recreational Instream Flows in Idaho

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the state's recreational instream flow achievements and examine how, or whether, they will serve us in the next 100 years. Has the state effectively preserved some "singing waters," or will our grandchildren find themselves seated at an empty banquet table? Even before Aldo Leopold expressed his concerns about the protection of "singing waters" for future generations, Idaho was taking the first steps toward ensuring rec- reational waters for its grandsons. `��•'`:i DEVELOPMENT OF IDAHO'S RECREATIONAL INSTREAM FLOW PROGRAM is J� The state of Idaho is endowed with a rich diversity of natural resources, including its mountains, rivers, and lakes. But its economy, like many states of the and West, was traditionally dependent on extractive industries such as timber and mining, and on irrigated agriculture. The state constitution established a prior appropriation system for 4 ; the allocation of water and recognized that the diversion of water for domestic, agri- cultural, mining, manufacturing, and power production purposes constituted beneficial uses of the states water (Idaho Const. art. 15, § 3). Hydropower generation came early to Idaho and took its place in the hierarchy of the prior appropriation doctrine. Thus, Idaho's water development followed a path similar to that of other western states, with early priority dates for large quantities of water for consumptive and hydropower uses. With construction of Milner dam in 1905, the Snake River at Milner was fully appropriated, with flows frequently near zero. The 1976 State Water Plan recognized the existing flow situation and set target flows below Milner at 0 cubic feet per second (cfs). As early as 1925, however, the Idaho legislature recognized the importance of natural waters to the health and welfare of its citizens. In that year, the legislature directed the governor to "appropriate in trust for the people of the state of Idaho all the unappro -. priated water of Big Payette Lake, or so much thereof as may be necessary to preserve said lake in its present condition. The preservation of said water in said lake for scenic beauty, health and recreation purposes necessary and desirable for all the inhabitants of the state is hereby declared to be a beneficial use of such water" (Idaho Code § 67- 4301). In 1927 the legislature enacted similar legislation to preserve the waters of Priest Lake, Lake Pend d'Oreille, and Lake Coeur d'Alene (Idaho Code § 67- 4304). These enactments were unusual for their time in two respects: first, they declared water, in place, for recreation and aesthetics a beneficial use; and second, they directed an "ap- propriation" without a diversion. These enactments certainly raised constitutional ques- tions, but those questions remained unanswered until 1974. Instream appropriations for recreational and aesthetic purposes did not become an issue again until 1971. In that year, the legislature passed a bill that directed the state park board (now the Idaho Park and Recreation Board) to appropriate in trust for the public the flows of several springs located along the Snake River in an area commonly referred to as the Thousand Springs. The appropriations were to include waters from Niagara Springs and Box Canyon Springs, spring flows arising in Malad Canyon, Big Springs (Blue Heart Springs), and, when electrical generation ceases, Thousand Springs. Once again, the legislature declared that use of the water for its scenic beauty and recreational opportunities constituted a beneficial use of the water (Idaho Code §§ 67- 4307- 4311) The legislature went on to state that future appropriations from the de -` scribed waters "shall not involve any diversion that shall detract from or interfere with the geological interpretive value, historical significance, or the scenic attraction for t public use . . ." (Idaho Code § 67- 4312). Idaho Code § 67 -4307 et seq. became effective 1 July 1971. Later that month, pursuant to the legislative directive, the Idaho Department of Parks, now the Idaho Department of Parks and Recreation (Parks), filed its application for permit to appropriate the unappropriated waters of Malad Canyon. The application was protested by the Idaho Water Users Association and several canal companies (collec- tively, water users). In July 1972, the Department of Water Administration, now the Idaho Department of Water Resources, issued a decision that held that a state agency 'N- 308 Rivers • Volume 1, Number 4 October 1990