Recreational Instream Flows in Idaho

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the few undeveloped remnants of a larger spring system, necessitating the appropriation -of total flows to preserve the aesthetics of these few remaining examples of the geo- logically rare canyon springs feature. For other aesthetics -based flows, such as flows over scenic waterfalls, Parks has had to rely on opinion testimony from people who have observed the water feature at varying, measurable flows. Although these methodologies have been used successfully by Parks in the past, it is not clear that they will continue to serve as well in the future. As opponents of instream flows become more organized and better prepared, it may be difficult to defend such unscientific methods for determining minimum flows. These methods have their drawbacks as well. Although in some cases they may err on the side of providing more water for the recreational user, it is also possible that the uncertainty may cause agencies petitioning for such instream flows to err on the conservative side in quantifying their requests. If an agency petitions for a minimally acceptable recreational flow, and a permit is granted, the question always arises, "should we have asked for more ?" Just as one never knows if one got more than one should have, one never knows if one sold out too cheaply. WHAT ABOUT THE FUTURE? Although minimum streamflows have been effective so far in protecting recreational and aesthetic values, the question remains whether our grandchildren will have "the chance to set a canoe in singing waters." Idaho's minimum streamflow provisions, for all their value, are hardly a panacea. The statutory language requiring instream flows to be "true minimums" constitutes a substantial obstacle. True minimums do little in the long term to protect the values that are associated with riverine systems, whether those values be fisheries, riparian habitat, aesthetics, or white -water recreation. To say that one has "preserved for rec- reational use" an internationally renowned stretch of white water by capturing a flow that represents the low end of recreational utility rings hollow. Optimal flows create celebrated white water; minimum flows do not. Idaho's minimum streamflow statute requires that instream flows take their natural place in the prior appropriation system. They are always subordinate to senior rights, and, in areas impacted by the Swan Falls agreement, they have been made subordinate to subsequent upstream appropriations. On many streams, and during low flow periods, there may not be water available to satisfy the relatively junior instream flow rights. Thus, Idaho's instream flow statutes work only to protect what is left on the table from those who come late to the banquet. Progress in acquiring instream flows for all purposes, including recreation, may be impeded by rules of the water resource board that preclude members of the public from petitioning the board for instream appropriations. Not only does this procedure appear to conflict with the statute, but it results in substantial public pressure on agencies such as Parks and the Idaho Department of Fish and Game to file such petitions. It has been the practice to date that the burden of making and proving a case for granting an instream flow falls on the petitioning agency, even though it is often the department of water resources that has the resources and expertise to make such a case, and it is the water resource board that will hold the permit or license if the application to appropriate is granted. The instream "rights" that have flowed from proceedings under the minimum stream- flow statute have not had the same legal stature as the rights granted to traditional diverters. When an appropriator seeks a water right for an offstream use such as agri- culture, fish propagation, or domestic use, the licenses, once granted, are subject to divestiture only if the water user does not make beneficial use of the full amount of their appropriation or if the right is forfeited or abandoned. Instream flow rights sought under the minimum streamflow statute, however, have been granted subject to review and /or revision at specified times (10 or 15 years) or at unspecified future dates. Thus, J I 311 Legal Developments J