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or whether, they
<br />ed some "singing
<br />, ty banquet table?
<br />ction of "singing
<br />and ensuring rec-
<br />V PROGRAM
<br />Sources, including
<br />the and West, was
<br />d mining, and on
<br />priation system for
<br />for domestic, agri-
<br />lstituted beneficial
<br />n the hierarchy of
<br />Lt followed a path
<br />large quantities of
<br />[ilner dam in 1905,
<br />Ztly near zero. The
<br />target flows below
<br />oortance of natural
<br />;lature directed the
<br />to all the unappro-
<br />cessary to preserve
<br />said lake for scenic
<br />all the inhabitants
<br />' (Idaho Code § 67-
<br />the waters of Priest
<br />§ 67- 4304). These
<br />declared water, in
<br />e directed an "ap-
<br />constitutional ques-
<br />did not become an
<br />at directed the state
<br />- iate in trust for the
<br />1 an area commonly
<br />nclude waters from
<br />Malad Canyon, Big
<br />Thousand Springs.
<br />scenic beauty and
<br />(Idaho Code §§ 67-
<br />ations from the de-
<br />3m or interfere with
<br />,cenic attraction for
<br />eq. became effective
<br />) epartment of Parks,
<br />.1 its application for
<br />The application was
<br />1 companies (collec-
<br />inistration, now the
<br />1 that a state agency
<br />could lawfully appropriate waters of the state, and that recreation and aesthetic uses
<br />were beneficial uses of water, but determined that there could be no valid appropriation
<br />of water without a physical diversion. On appeal, the district court ruled that a physical
<br />diversion was not required for a valid appropriation. Finally, in State of Idaho, Department
<br />of Parks v. Idaho Department of Water Administration, 96 Idaho 440, 530 P.2d 924 (1974), a
<br />plurality of the Idaho Supreme Court held that: (1) A state agency may appropriate
<br />water, (2) the legislature's determination that recreation and aesthetics could constitute
<br />beneficial use was constitutional, and (3) no diversion of water from a stream was
<br />necessary in order to effect a valid appropriation.
<br />It was not until 1978 that the legislature passed a comprehensive minimum streamflow
<br />statute (Idaho Code § 42 -1501 et seq.). The legislative purpose of the act provides:
<br />The legislature of the state of Idaho hereby declares that the public health, safety and
<br />welfare require that the streams of this state and their environments be protected against
<br />loss of water supply to preserve the minimum stream flows required for the protection
<br />of fish and wildlife habitat, aquatic life, recreation, aesthetic beauty, transportation and
<br />navigation values, and water quality. The preservation of the water of the streams of
<br />this state for such purposes when made pursuant to this act is necessary and desirable
<br />for all inhabitants of this state, is in the public interest and is hereby declared to be a
<br />beneficial use of such water.
<br />In addition to setting out the purposes for which minimum streamflows could be sought,
<br />the act established an administrative framework for the filing and review of applications
<br />to appropriate instream flows. Idaho Code § 42 -1503 provides that:
<br />Approval of any application must be based upon a finding that such appropriation of
<br />minimum stream flow:
<br />(a) will not interfere with any vested water right, permit, or water right application
<br />with priority of right date earlier than the date of receipt in the office of the director
<br />of a complete application for appropriation of minimum stream flow filed under the
<br />provisions of this act;
<br />(b) is in the public, as opposed to private, interest;
<br />(c) is necessary for the preservation of fish and wildlife habitat, aquatic life, recreation,
<br />aesthetic beauty, navigation, transportation, or water quality of the stream;
<br />(d) is the minimum flow or lake level and not the ideal or most desirable flow or lake
<br />level; and
<br />(e) is capable of being maintained as evidenced by records of stream flows and water
<br />levels and the existing or future establishment of necessary gauging stations and bench
<br />marks.
<br />The minimum streamflow statute in Idaho provides that only the Idaho Water Re-
<br />source Board may hold an instream flow in the public interest, but it provides a method
<br />for the public or another governmental entity to petition the water resource board to
<br />seek an instream appropriation. The water resource board has, by rule, limited the
<br />petition process to governmental entities only.
<br />In 1988, the Idaho state legislature passed a comprehensive rivers planning bill, which,
<br />in part, recognizes the value of instream flows by providing that "minimum stream
<br />flow for aquatic life, recreation and aesthetics and minimization of pollution and the
<br />protection and preservation of waterways in the manner hereafter provided shall be
<br />fostered and encouraged and consideration shall be given to the development and
<br />protection of water recreation facilities" (Idaho Code § 42- 1734A[d]). The act also pro-
<br />vides a system for designation of rivers as "natural" or "recreational" and sets out
<br />procedures for regulating activities on designated rivers (Idaho Code § 42- 1734A[4]-
<br />[ -
<br />PRACTICAL APPLICATION OF THE INSTREAM FLOW STATUTORY SCHEME
<br />Progress in acquiring water rights under the various statutory schemes has not always
<br />been rapid. Since the initial 1971 legislation directing filings on Snake River springs,
<br />October 1990 I Legal Developments 309 ��
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