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Trout Unlimited would like to Thank the D r. Ezekiel R.   and   Edna Wattis Dumke Foundation
for p roviding the funding for this re p o rt .




                                                                                   Idaho Water Off i c e
                                                                    151 North Ridge Ave., Suite 120
                                                                              Idaho Falls, ID 83402

w w w. t u . o r g                                               ph 208.552.0891     fax 208.552.0899
Printed on Recycled Paper
 Idaho Cro s s roads:
  The Challenge for Idaho’s Rivers and S treams in t he 21 st Centu ry



                                                  trout unlimited




“...Idaho is in trouble. Our rivers, streams and native and wild fish
  populations are being threatened by various factors including low population

  numbers, decreasing water levels and impaired water quality. Idaho’s native

  t rout and salmon populations in rivers and streams like the Salmon River and

  the South Fork of the Snake are struggling . . .  ”
                                               H e n ry ’s F o r k



Ta b l e o f C o n t e n t s

I n t ro d u c t i o n                                         1
P roblem State ment                                            2
Water use i n Idaho                                            3
Impact s on Idaho R ive rs a nd Fi sh                          4
Challenges to Stream Flow Pro t e c t i o n                    5
O p p o rtunities for Positive Change                          7


The Rivers
The Salmon River Basin                                         13
The Upper Big Wo od River and Silver Cre e k                   16
The Idaho Sinks Drainages                                      17
The Bear River and Bear Lake                                   19
The Boise River                                                20
The Upper Snake River Basin                                    20
Conclusion                                                     24
Introduction
Few places in the United States possess the beauty and richness of Idaho. The Idaho
landscape includes stunning mountain peaks, pastoral valleys, fertile soils, and a wide
spectrum of fish and wildlife. So too, Idaho has a proud, diverse economic history, the cornerstones of
which are farming and ranching and recreational pursuits. It is not by mere coincidence that the state’s license
plates read “scenic Idaho” and “famous potatoes.”

Upon closer examination, however, Idaho is in trouble. Our rivers, streams and native and wild fish populations
are being threatened by various factors including low population numbers, decreasing water levels and impaired
water quality. Idaho’s native trout and salmon populations in rivers and streams such as the Salmon River and the
South Fork of the Snake are struggling. Multiple drought years have caused tensions to increase among farmers,
ranchers, outfitters and guides, and other businesses that depend on water for their livelihood, thus affecting the
state’s rich social fabric and the Idaho tradition of working together to address that which confronts us.

It is because of these difficult challenges that Trout Unlimited releases Idaho Crossroads: The Challenge for Idaho’s
Rivers and Streams in the 21st Century. The report is designed to take a non-confrontational look at an issue that
will not go away—water scarcity and the relationship between the way we currently use and regulate water and the
health of Idaho’s rivers, streams, fish and wildlife. The purpose of the report is not to lay blame. Doing that would
only further divide. Rather, it examines the competing uses for water and the existing laws and regulations that
often limit the ability of Idahoans—including those in the agricultural community and property owners—to protect
and restore stream flows. Trout Unlimited understands that fears in the Idaho agricultural industry—legal, social,
and economic—must be addressed in order to design and implement long-term solutions.

Idaho Crossroads is also about optimism. It searches out common ground among the ranching, farming, and fisheries
communities in central and southeast Idaho—all of whom are tied to the limiting factor of living in a semi-arid
state. It explores creative ways to provide greater flexibility for landowners and water right holders to protect stream
flows as part of their long-term operating plans. Further, the report includes descriptions of rivers and streams that
have low flows, and where local stakeholders are actively involved in developing creative strategies to protect and
restore stream flows, and also maintain farming and ranching operations.
                                                                                                                                    1
With this report, Trout Unlimited hopes that Idahoans will recognize not only the challenges that lie before us, but
also the opportunities. We also hope this report will spark a constructive, long-term collaborative dialogue between
non-traditional partners in the agricultural
and conservation communities. Most of all,
we hope it will help Idaho residents recognize
the crossroads we stand at today and our ability
to positively affect the state’s future as it relates
to water.




Scott Ya t e s
D i re c t o r—T U Idah o Water Of f i c e
                                                     F a r m a n d r a n c h l a n d i n t h e B i g L o s t R i v e r Va l l e y
    D ry s e c t i o n o f t h e B i g L o s t R i v e r n e a r M o o r e , I d a h o




    Problem Statement
    Across Idaho and across the West, recent droughts have highlighted a problem
    that has been over 150 years in the making; increased competition for essential,
    yet limited, water supplies. This can certainly be seen in its effects on fishery resources in Idaho.
    For example, nearly every tributary in the Upper Salmon River Basin’s Pahsimeroi River drainage—located
    between the Lemhi and Lost River mountain ranges—has historically been captured for irrigation delivery; many
    of these important trout, salmon and steelhead streams have been so devoid of water that the original stream
2   channels are barely discernable. Unfortunately, such examples are not limited to the Pahsimeroi watershed.
    In the Upper Snake River region, important native trout streams such as Rainey Creek are dewatered during
    critical time periods and no longer functionally connect year-round to the South Fork Snake River.

    These issues face numerous rivers and streams that support coldwater fisheries in Idaho. At the same time, creative
    strategies to address these issues are taking hold in various river basins throughout the state. These often involve
    diverse stakeholders including traditional ranch and farming operations, state and federal resource agencies, and
    conservation interests. However, many of the solutions that appear to meet a variety of diverse needs are often
    unobtainable or unreasonably delayed because Idaho water law is not flexible enough to nurture locally-developed
    alternatives.

    The bottom line is that because of laws that have not been updated and extreme polarization between most
    conservation and agricultural interests, Idaho has yet to make modest adjustments to add flexibility to water
    management that would benefit water users, the fish and the rivers, and the Idaho economy. As a result, many
    fisheries continue to decline while controversy increases. Stepping out of this cycle is the challenge facing
    Idaho in the 21st century.
Water Use in Idaho
Irrigated Agriculture
Irrigated agriculture began in Idaho in the 1840s, with the diversion of water from
the Boise River. By the end of the 19th century, over half a million acres in the state
were irrigated and the direct flows of the Snake River were almost fully appropriated.
In fact, so much water had been drawn from the Snake that a ten-mile stretch of the river near Blackfoot actually
went dry in 1905.

Irrigated agriculture expanded throughout the 20th century, including the development of some of the largest dam
and reservoir storage systems in the West, resulting in greatly increased use of Idaho’s surface and ground water
resources. As one Idaho Department of Water Resources report notes about water use in three of the state’s most
important wild trout strongholds, “even during a normal precipitation year, natural surface flows in the Upper Snake,
Big Lost, and Boise river basins during the peak irrigation season are fully appropriated.” Approximately 21.6 billion
gallons of Idaho’s water is used every day for agricultural purposes; which includes the irrigation of over 4.1 million
acres. This ranks Idaho second only to California as the largest water user in the United States. Because 96% of
Idaho’s water withdrawals and 99% of the consumptive uses of water resources in the state are directed toward
agriculture, this sector will be instrumental in developing meaningful statutory and regulatory changes that will
restore our rivers and protect the long-term vitality of the economies, people, fish, and wildlife that rely on them.


Expanding Populations
Like many semi-arid western states, Idaho is experiencing an exploding population as more and more people are
moving here to take advantage of the diverse recreational opportunities and quality of life. From 1990 to 2000,
Idaho saw its number of inhabitants increase by 28 percent—more than double the percentage population increase
for the United States as a whole during the same period. Urban centers and rural recreational areas alike led the
expansion; with the Boise area growing from 295,345 in 1990 to 432,345 in 2000 and Teton (65%) and Blaine
(34%) counties experiencing dramatic increases.

Needless to say, these changing demographics are causing additional stress on the state’s already-limited water
supplies. More and more groundwater resources are being tapped to meet the escalating demand—groundwater that
directly and indirectly impacts the flows of the state’s rivers and streams. The expanding need for municipal water       3
led the Idaho Department of Water Resources to note recently that, in certain areas of the state, water supplies from
groundwater sources may not meet the increasing demand. They further noted that surface water sources might have
to be tapped to address the needs
of the state’s growing population,
furthering the stress on the state’s
rivers and streams. With projections
that the Idaho population will
expand by at least an additional
one-half million people by 2025,
the difficulty in meeting water
demand will become even more
challenging as will the ability to
address likely impacts to the state’s
natural resources.


                                        L i t t l e L o s t R i v e r b u l l t ro u t
Impacts on Idaho Rivers and Fish
Fishery Im pact s
Idaho has some of the most productive salmon and steelhead habitat in the Pacific
Northwest. Historically, the Salmon River Basin alone produced 40% of the entire
Columbia River Basin run of spring and summer chinook. Further, Idaho still has some of the
strongest populations of bull, cutthroat, and redband trout in the West, most of which are located in the upper
reaches of rivers and streams on protected publicly-owned lands. The state is also known world-wide for important
naturalized trout populations such as the wild rainbow trout in the Henry’s Fork, a river voted by Trout Unlimited
members as the number one trout fishery in America.

However, there are some places where we need to do better to protect these magnificent aquatic resources.
Low flows caused by water being diverted from a stream are a factor for decline for all of the federal Endangered
Species Act (ESA) salmonids—bull trout, spring and summer chinook, and steelhead—in Idaho. Low stream flows
also threaten many populations of sensitive and declining resident trout species such as redband and westslope,
Yellowstone, and Bonneville cutthroat trout. According to the Idaho Department of Environmental Quality, there
are thousands of miles of “water quality limited or impaired” streams in Idaho. This is caused by problems such as
increased sedimentation, heightened temperature, and excessive nutrients, problems that are influenced in many
instances by unnaturally-low flow conditions. There are myriad examples of isolated fish populations—genetic
bottlenecks—that are no longer able to migrate to rivers or other tributaries to fulfill life history needs such as
spawning or rearing because stream reaches are dewatered. Finally, stream flows in some river systems, such as
central Idaho’s Big Lost River drainage, have progressively declined in the last two decades.

Anadromous salmon and steelhead, and resident native and wild trout need sufficient flows during the critical
times of their life cycle—spawning, rearing, and migration—just to survive. Impacts from unnaturally low flows
occur throughout the year depending on the Idaho river system. Where salmon and steelhead or native or wild
trout are present in places like the Lemhi or Weiser river basins, places where ranches and farms depend primarily
on natural river flows during the irrigation season, fish populations can be affected based on water availability
during the summer months. This is especially true during critical egg hatching and juvenile fish development
and survival periods. At the same time, in Idaho river systems where water is impounded and stored, like the
                    Upper Snake and Boise river basins, winter and early spring flows can be tenuous in some normal
                    and dry years interrupting the underlying ecological processes of a river in a manner detrimental
                    to fish survival.


                  Economic Impacts
                  The economic impact of angling and other river recreation in Idaho is difficult to overstate.
                  Anglers flock to the water and also to nearby locally-owned stores, restaurants, and hotels.
                  Anglers from all over the world travel to Idaho to experience our high profile fisheries; such
                  as wild rainbow trout fishing on the Henry’s Fork or the nation’s most inland salmon and steel-
                  head fisheries in the Salmon River drainage. A recent report by the American Sportfishing
                  Association found that sport fishing alone contributes over $680 million dollars annually to
                  Idaho’s economy and is responsible for over 7,500 jobs. Data collected in 1996 established that
                  the total annual value of the Henry’s Fork River wild rainbow trout fishery between Island Park
                  Dam and Hatchery Ford—a mere 10 mile section—was in excess of $5 million dollars.

Idaho itself is home to more than 415,000 anglers, who also contribute to the state’s sport fishing economy.
Many of these anglers are on the forefront of conservation efforts because they understand that there would be
no healthy fisheries if it weren’t for healthy rivers. There is value added for each river system where stream flows
are protected or restored. Think of the economic value of restoring thousands of impaired stream miles, or if salmon
and steelhead runs were increased or more consistent because of improved stream flows. The bottom line is that the
native and wild salmonid fisheries and the Idaho rivers and streams upon which they depend are a renewable and
sustainable resource that must be nourished, protected, and where possible, restored.


Challenges to Stream Flow Protection
I d a h o Wa t e r L a w
Like most western states, the prior appropriation doctrine has governed Idaho’s water
laws for over a century. Adopted in 1890, as part of the original Idaho Constitution,
the doctrine served as an important tool to help encourage the orderly settlement of
the state of Idaho. The essence of the doctrine is commonly described as first in time is first in right, meaning
that the earlier, or senior, user who removes (diverts) water from a stream and puts it to a beneficial use has a right
to that water which must be fully satisfied before any later, or junior, users can divert any water at all. If there are
rights to as much water as is actually available, the river is said to be fully appropriated, and senior users may divert
the entire flow of a river to fulfill their claims, leaving nothing behind for the junior users or the river itself.

Columbia River Basin states Montana, Oregon, and Washington have adopted statutory mechanisms—within
the context of the prior appropriation doctrine—that increase the ability of water right holders and other private
interests to protect and restore stream flows. Depending on the state, this includes explicitly allowing transfers—
both permanent and temporary—from traditional beneficial uses such as agriculture to instream flows, or purchasing
or leasing water to provide aquatic benefits.

Idaho has codified a number of ways to protect and consider stream flows in key agency decision making processes—
such as the minimum stream flow statute, the consideration of local public interest criteria in water appropriation
and transfer proposals, and the development of the state water supply bank and district rental pool system. However,
most of these provisions have either substantive limitations or were not designed to specifically address stream flow
needs especially in fully appropriated river systems.


Barriers to Public Protection                                                                                               5
Originally, only such uses as agriculture, hydropower, mining, and manufacturing were considered beneficial enough
to be provided with a legal water right in Idaho. But 25 years ago the Idaho State Legislature responded to growing
concerns regarding the ecological well-being of the state’s rivers and streams by enacting the Minimum Stream
Flow statute, thus recognizing the importance of healthy flows for fish and wildlife habitat, aquatic life, recreation,
aesthetic beauty, transportation and navigation, and water quality. Unfortunately, the utility of this landmark
legislation is diminished by the statute’s limitations, preventing its widespread application and effectiveness.

First, minimum stream flow water rights are assigned a post-1978 priority date—the year that the statute was enacted.
Since unappropriated water has been a scarce commodity in many Idaho river basins, particularly in southern and
central Idaho, since the early and middle parts of the last century, these junior priority dates limit the utility of the
minimum stream flow water rights. This is why minimum stream flow levels are not frequently met on rivers like the
Henry’s Fork, where a 24-mile section of the river below Island Park Dam is “protected” with a 1981 priority date.
Other examples include drainages such as the Little Wood, Big Wood, and Pahsimeroi, where late priority date
minimum stream flows do not preclude sections of these rivers from being dewatered. The fact that many rivers
and streams are fully appropriated also limits the basic ability of the Idaho Water Resource Board (Board) to apply
                    for a minimum stream flow water right; water must be considered available before the Board can
                    apply for such a right.

                    Second, though the Idaho constitution deems all water in the state as belonging to the public, only
                    the Board may hold a minimum stream flow right. Idaho citizens concerned about the health of their
    rivers may request that the Board apply for such a water right, but the public cannot appeal any denial by the Board
    to do so. Third, even if applied for, extensive studies and analyses are required to support the application and the right
    can only be for the minimum flow level, and specifically not the ideal or most desirable flow level. Finally, this already
    weakened water right must face one more hurdle: legislative scrutiny. Unlike almost all other water right applications,
    a minimum stream flow cannot be established unless the legislature formally approves it or at least takes no action
    to disapprove an application approved by the Idaho Department of Water Resources.

    In theory, Idaho law recognizes that stream flow left in a river or stream to benefit fish and wildlife is a beneficial use
    of water. Yet substantive limitations and a cumbersome process translate in practice to restrictions that have nearly
    stripped this law of its potential benefits. Of the 93,000 waterway miles in Idaho, only a mere 675 miles—or less
    than one percent—have been protected under the minimum stream flow statute.

    The adoption of the minimum stream flow statute in 1978 should be viewed as a landmark in the evolution of
    Idaho water law. It provided an opportunity for the State of Idaho to permanently protect some river systems that
    were not fully appropriated and other waters that were facing possible future uses—such as the diversion of water
    for hydroelectric purposes—that could have adversely affected fisheries and the aquatic environment. However,
    the tangible benefits of the statute for fully appropriated rivers and streams have been minimal. It is time for Idaho
    to take the next step and consider additional options that could make water available for fish and wildlife while
    allowing landowners to meet traditional ranching and farming needs.


    Barri ers to Private Conse rvation
    In addition to the lack of flexibility for state protection of stream
    flows, the owner of a water right in Idaho can neither privately                      Conserved Water
    change that right to provide more water for the stream or river,             Conservation of water through irrigation
                                                                                 efficiency gains—because of legal or policy
    nor even give such a right to the Idaho Water Resource Board for             realities or the interaction between surface
    the purpose of increasing a river’s flows. Ten years ago, the Idaho          and groundwater—does not always lead to
                                                                                 improvements in stream flow or to fishery
6   Legislature rejected a proposal that would have allowed a water              benefits. The issue of whether a specific project
    right holder to grant that right to the Board for increasing flows,          will increase or deplete stream flows is site-
    while allowing the original priority date to be retained. The result         specific, and each proposal must be examined
                                                                                 in light of the hydrologic conditions onsite.
    is that today, Idaho water users who are interested in creative              But identifying more efficient ways to use or
    strategies to leave more water in the stream and obtain additional           deliver water can certainly be part of a larger
                                                                                 flow restoration effort, especially on key tribu-
    financial flexibility are effectively barred from using their private        taries where a small number of water users are
    rights to protect rivers or streams.                                         involved. Further, such projects can be the key
                                                                                 to restoring the migration corridor from larger
                                                                                 mainstem environments to important and
    Private conservation efforts have also been discouraged by the               healthy tributary spawning and rearing habitat.
    “use it or lose it” principle of the prior appropriation doctrine.           This is the primary reasons stakeholders are
                                                                                 moving forward with important projects that
    This requires that if water is not put to the beneficial use for which       have a “conserved water” component in
    it was appropriated for five years, the water right may be forfeited.        places like Garden Creek in the South Fork
    In other words, a water user cannot decrease water consumption by            Snake River watershed and Badger creek in
                                                                                 the Little Lost River drainage.
    adopting conservation measures without the threat of losing his or
    her valuable right to that conserved water. In the 2003 Idaho
    Legislature, lawmakers did amend the state water code and expand the defenses to forfeiture to include water conser-
    vation practices so long as the full beneficial use for which the original water right was granted is maintained. While
such changes will provide some flexibility for water users in small drainages where non-diversion agreements have
some utility to protect stream flows, an Idaho water user still may not explicitly transfer the conserved water to a new
use (such as instream flow), or lease the right to someone else via the state water bank unless lands are taken out of
production.

Despite these disincentives, many farmers in Idaho have been leaders in implementing water use practices that
have resulted in significant water savings as less water is applied to a given portion of land. These actions have been
driven primarily by the need to increase crop yields and quality, as well as to conserve soil, and not necessarily to
increase water use efficiency as an end to itself. But water use efficiency is a byproduct of this long-term operational
trend in places like the Upper Snake River Basin, and there should be better and more explicit ways to benefit
stream flows and aquatic environments—especially where endangered species are present.


Opportunities for Positive Change
No other natural resource issue polarizes stakeholders in the West
like water use. Yet, a number of western states have incorporated a
variety of innovative and low-key approaches to provide better
stream flows and restore the ecological health of important trout
fisheries. While it is important to emphasize that there is no one-size-fits-all approach to
restoring stream flows in the West, the measures described below have worked successfully
in some locations. They are examples of different approaches that could provide additional
flexibility for all of Idaho’s stakeholders, including the irrigation and water user community,
to better protect stream flows and still meet long-term operational needs. Unfortunately,
while many farmers and ranchers want to protect or restore stream flows, they often run                                         L e m hi R i v e r
directly into the limitations of their own water law.


Strengthen the                                                                        The Lemhi River
Minimum Stream Flo w Statute                                                             Approach
                                                                             Legislation in 2001 specifically created a local
The “Minimum Stream Flow” statute should be made more flexible               rental committee to facilitate the operation of
so that stream flows are restored in some river systems where water          a water rental pool designed to market natural
is fully appropriated. Once the statute is changed, the Board, other         flow rights solely in the Lemhi River Basin.                        7
resource agencies, and private groups should apply for more instream         Pursuant to the legislation, the committee has
flow rights. It is important to note that such modifications would           the authority to rent natural flow rights on a
                                                                             willing buyer and seller basis for the purpose
still need to fit within the context of the existing priority system.
                                                                             of satisfying the Idaho State Water Board’s
These changes will allow flexibility for resource agencies,                  minimum stream flow water right for the
landowners, and other stakeholders to react collaboratively to               Lemhi. The Lemhi River is the only drainage
changing circumstances and take advantage of situations where                in Idaho where separate legislation has been
fishery and community needs intersect.                                       enacted to ensure that a state-held minimum
                                                                             stream flow water right—despite a very junior
                                                                             priority date (April 2001)—is obtainable on
Because of the late priority date of state-held minimum stream flow
                                                                             a fully appropriated stream. Again, this is
water rights, the statute should be applied in tandem with additional        because the minimum stream flow concept
statutory or administrative mechanisms that will provide more                has been combined with a local rental pool,
substantive and measurable stream flow benefits, especially in               where early priority water rights are purchased
chronically dewatered and fully appropriated watersheds. Currently,          or leased from willing farmers and ranchers,
a minimum stream flow cannot be established where water is                   and then dedicated to meeting the minimum
                                                                             flow levels established by the Idaho Department
unavailable—a reality for many of Idaho’s rivers and streams.
                                                                             of Fish & Game.
Idaho legislators have already endorsed creative tools to extend
                                     both the benefits of the minimum stream flow statute and the utility of the water supply bank and rental pool
                                     concept for protecting fish and wildlife habitat. A 2001 law directed the Idaho Water Resource Board to appropriate
                                     a minimum stream flow in a particular section of the Lemhi River and then to establish a local rental committee to
                                     facilitate the operation of a water rental pool to ensure—on a willing-owner willing-renter basis—that such minimum
                                     flows are met.

                                     The state could expand the geographic scope of the Lemhi River approach to either specific river basins, or ideally,
                                     statewide and allow local irrigators to take the lead and work with resource agencies and other stakeholders to devel-
                                     op long-term strategies to meet minimum stream flow targets. Legislation introduced in 2002, would have extended
                                     this concept statewide. Under this scenario, the state-established minimum stream flow would serve as the goal, while
                                     the locally-crafted and flexible stream flow restoration strategy would be the means for maintaining better flows,
                                     while still preserving the agricultural operations in the particular area.

                                     This is the type of pro-active approach that creates incentives for landowners to identify strategies to protect habitat
                                     for federally protected fish such as salmon, steelhead, and bull trout and still meet long-term operational goals.
                                     There is no need to limit the breadth of such an approach to areas with Endangered Species Act (ESA) issues;
                                     such strategies could help avoid future fish listings in other parts of Idaho for sensitive species such as cutthroat or
                                     redband trout, as well as enhance other wild trout fisheries in places like the Henry’s Fork and Big Lost rivers.


                                     Wa t e r R i g h t Tr a n s f e r s t o R e s t o r e S t r e a m F l o w s
                                     Water transfers to instream use by private individuals should be explicitly permitted and encouraged to allow farmers,
                                     municipalities and developers to take advantage of the opportunity to leave water in the river. The Idaho Water Law
                                     Handbook, authored by some of the state’s leading water law attorneys, points out that the ability to conduct such
                                     transfers “would benefit not only those interested in protecting habitat, but also farmers (who could gain income and
                                     forestall forfeiture actions), cities and industries (who could buy rights to protect investments in waste discharge permits,
                                     parks, and so on), and developers (who increasingly will be called upon
                                     to mitigate for habitat loss in order to obtain federal permits).”

                                     Oregon, Washington, and Montana allow parties other than the                       Pahsimeroi River Basin
                                     state’s water board or water resource agency to hold instream rights,              Flow Restoration Efforts
                                     thus promoting public participation and spreading river protection             The Pahsimeroi River Basin is a good example
                                     opportunities among all users. Other western state legislatures, such          of where the state water bank can be used to
8                                    as those in Utah and Wyoming, may soon consider amending water
                                                                                                                    enhance an existing minimum stream flow
                                                                                                                    that has been of limited value because of a late
                                     codes to allow such flexibility both for permanent and temporary               priority date. Recent efforts on Falls Creek,
                                     water transfers. The purpose of such measures is to allow farmers              an important bull trout tributary, show that
                                                                                                                    stakeholders are covering new ground regarding
                                     and ranchers to build stream flow restoration into their long-term
                                                                                                                    whether and how flow and habitat restoration
                                     operating plans, both as a year-to-year part of their business and as          can occur under the existing legal and policy
                                      a drought management mechanism. It is important to note that                  framework in Idaho: landowners and agencies
                                     all of these states incorporate the requirement that the holders of            are working together to conserve water, com-
                                                                                                                    bine and screen diversions, and make sure such
                                     junior water rights are not harmed by such transactions.                       activities translate to stream flow and fishery
                                                                                                                    benefits. Through a combination of all these
                                              Wa t e r L e a s i n g t o P r o t e c t                              activities, and the retirement of some non-pro-
                                              or Restore Stream Flows                                               ductive lands, a substantial amount of flow will
                                                                                                                    be placed in the state water bank and used to
                                              Idaho should adopt an explicit water leasing statute geared           meet the minimum flow right for the mainstem
                                                                                                                    Pahsimeroi River. The effort will also ensure
                                              towards restoring stream flows, that facilitates market-based         better tributary flows in Falls Creek and ensure
                                              transactions and provides economic incentive for ranchers             that bull trout are able to migrate to and from
                                              and farmers to leave some water instream. A mechanism for             the mainstem Pahsimeroi during most years.
                                              a state-administered leasing system, the Water Supply Bank,           Finally, landowners will be able to irrigate more
Falls Creek,                                                                                                        efficiently throughout the summer and fall.
P a h s i m e r o i R i v e r B as i n        already exists in Idaho. Established in 1979, the Water
                                                                                  Using Idaho Water
                                                                                  to Augment Lower
                                                                                  Snake River Flows
                                                                          No water issue has captured the imagination of
                                                                          Idaho residents more than the use of water tradi-
                                                                          tionally stored and delivered for irrigation purposes
                                                                          to augment stream flows in the lower Snake River.
Supply Bank acts as a “water exchange market” in which excess
                                                                          The program was originally developed to help miti-
water is placed in the Bank to be leased to other users who do not        gate the impacts of the immense Federal Columbia
have enough water. The Idaho Water Resource Board manages natu-           River Power System (FCRPS), which transformed
ral flow rights held in the water bank, whereas local water districts     the mainstem Snake and Columbia rivers into a
                                                                          huge system of slack water reservoirs. The basic
oversee the leasing of water stored in several reservoir systems across   scientific premise is that flow augmentation
the state—known as rental pools. Traditionally, both the state water      reduces the amount of travel time for juvenile
bank and local rental pools have been used primarily for transactions     salmon and steelhead as they make their seaward
between agricultural water users and with the Idaho Power                 journey from headwater rearing habitat to the
                                                                          ocean. With the amount of water provided during
Company during years when hydroelectric power prices are high.            normal and wet years—between 250 and 427 thou-
                                                                          sand acre-feet—there has been minimal effect on
Idaho enacted special legislation—currently set to expire January 1,      flow levels and water velocity in th lower Snake
                                                                          and Columbia rivers. There is little or no scientific
2005—authorizing the release of water stored in U.S. Bureau of
                                                                          foundation for the flow targets that have been
Reclamation reservoirs that is rented on a willing-seller willing-        established by the federal government for the
buyer basis through the state’s rental pools to help augment river        salmon and steelhead recovery program.
flows during the Snake River juvenile salmon migration. Beyond            The current flow augmentation program—like
the flow augmentation context, storage water is available for             many of the federal attempts to protect ESA-listed
instream flow purposes. Most rental pool districts identify the maxi-     fish in the Columbia River Basin—is geared
                                                                          towards minor changes to the existing system, to
mum beneficial use of irrigation as the highest priority, allowing
                                                                          avoid impacts to historic water storage, power pro-
storage flows to be rented for “other” beneficial uses only when irri-    duction, flood control obligations and other tradi-
gation needs have been satisfied. So while the rental pool concept        tional operational constraints. Irrigators argue that
has the flexibility to provide water for all types of beneficial uses,    flow augmentation benefits are difficult to measure
                                                                          or discern and that the conservation cost/benefit
there are built-in features that act as disincentives for leases geared   ratio for such measures is too high. Most of the
towards stream flow enhancement, and very few examples of it              environmental community believes flow augmenta-
being used for such purposes. The future use of the rental pool sys-      tion is necessary to reduce travel time and increase
tem to enhance stream flows will likely be a product of long-term         smolt survival if the four Lower Snake River
                                                                          dams—Ice Harbor, Lower Monumental, Little
conversations between non-traditional partners in the agricultural
and conservation communities, and collaborative negotiations that
                                                                          Goose, and Lower Granite—are to remain in place.        9
                                                                          Although an important regional concern, the flow
explore market-based “pilot” or “adaptive” projects that are              augmentation issue hangs like a black cloud over
designed to meet both agricultural and fishery needs.                     almost all other discussions regarding stream flow
                                                                          restoration in Idaho. There are countless smaller-
While somewhat ambiguous, the Idaho water code does appear to             scale discussions and solutions regarding stream
                                                                          flow projects and landowner involvement that
allow a surface water right held in the Water Supply Bank to be           should occur outside the flow augmentation con-
leased to meet state-created minimum stream while still retaining         text. There is also a need to reconcile long-term
its original priority date. As long as there is no increase in the con-   flow augmentation efforts for salmon and steelhead
                                                                          with the way water is stored and delivered in the
sumptive use of a right placed in the Bank, and if the lands associ-
                                                                          Upper Snake River Basin. Current collaborative
ated with the water right are taken out of production, junior users       efforts in the Upper Snake River Basin to protect
will not be injured just because the senior water right may be used       two of the nation’s finest native and wild resident
for instream flow rather than some other use. Using the existing          trout fisheries in the South Fork Snake and Henry’s
                                                                          Fork rivers will depend on retaining maximum
state water supply bank system in tandem with the state minimum           flexibility during dry years above Milner Dam.
stream flow statute, both on systems with existing minimum stream         Any long-term flow augmentation program should
flow water rights and currently unprotected rivers and streams holds      be tailored to provide water user flexibility, and
promise for restoring stream flows in fully appropriated systems and      both upstream (resident fish) and downstream
                                                                          (anadromous fish) biological benefits.
connecting important tributaries to mainstem aquatic environments.
                                                    A g r i c u l t u r a l l a n d a b o v e M a c k a y R e s e r v o i r i n t h e B i g L o s t R i v e r Va l l e y



     The other option for Idaho is to adopt a private water leasing approach. A number of western states—such as
     Montana, Oregon, and Washington—currently permit private parties to lease water for instream flow purposes
     while retaining the original priority date. In Montana, individuals can either directly transfer their water right to
     increase stream flow or lease it to someone else for instream use. In 1989, the Montana legislature approved a pilot
     water leasing statute, which has since been extended and expanded. Today, private parties or the state may lease
     water for up to 30 years anywhere in Montana, provided that the purpose of the leasing is to benefit a fishery. The
     temporary status of leases has built trust among water users who may feel threatened by a permanent appropriation,
     but who are willing to take smaller, experimental steps towards restoring stream flows.

     While the existing state water bank and rental pool systems could be amended to provide more emphasis and
10   incentives for stream flow protection, Idaho should develop a private leasing program like Montana to comple-
     ment the existing programs that currently focus on transactions between traditional water users. A straight-forward
     water leasing program geared toward restoring stream flows for fish would allow individual landowners to take
     advantage of various funding mechanisms based on their vested right to use water from a particular stream. In
     other words, because a water right is a property right, it allows landowners—where impacts to other water users
     have been evaluated and a determination made that no injury would occur—to profit from such a right. A leasing
     program encourages a free-market approach that promotes efficient use of water and the development of market-
     based incentives that can provide flexibility for the irrigation community, while enhancing stream flows. Such a
              program simply recognizes that fish and wildlife and other outgrowths from healthy stream flows are also
              a “beneficial use” of water—beneficial to the farm and ranching community, to local and area businesses
              and to the state of Idaho as a whole.

              Ta k i n g A d v a n t a g e o f E x i s t i n g A u t h o r i t i e s
              Not all of Idaho’s solutions to water quantity and quality problems need to come from the courtroom or
              legislature. The adoption of more flexibility and concerted effort state-wide to implement existing statu-
              tory mechanisms to protect and restore stream flows may balance the need for change. Parts of the Idaho
Water Code, such as those dealing with water transfers, groundwater mitigation, or minimum stream flows can be
implemented administratively at either the state or local level to make restoring stream flows easier. For some of
these statutory provisions, there is little or no precedent for using them to protect or restore stream flows in Idaho.
At the same time, they should not be ruled out as possible mechanisms to provide additional flexibility in the
existing system. The responsibility is certainly not just on the state or irrigators to take advantage of these types
of existing statutory mechanisms. Groups such as Trout Unlimited and others must work with
regulators and landowners to develop stream flow restoration strategies that test the utility
and flexibility of existing statutes and programs.

The Idaho Department of Water Resources (IDWR) is currently exploring a number of these
alternatives as part of the department’s recently developed “water transactions program.”
The IDWR is implementing and analyzing projects in the Upper Salmon River Basin and
exploring flow enhancement alternatives that use the existing state water bank program,
landowner conservation agreements, non-diversion agreements, transfers and exchanges
including strategic re-location of diversion points, and irrigation scheduling. The program is
                                                                                                                                  N e wl y
part of a larger initiative called the Columbia Basin Water Transactions Program, and is                                          r e c o n s t ru c t e d
funded by the Bonneville Power Administration and National Fish & Wildlife Foundation. The purpose of the                         Garden Creek
                                                                                                                                  s t r e a m c h a nn e l
program is to identify specific tributary stream flow restoration projects so that impacts to ESA-listed salmon and
steelhead are lessened. Currently, IDWR is the only “qualified local entity” in Idaho under the program, and their
activities are limited to areas with anadromous fish. Trout Unlimited and other stakeholders should be able to work
with IDWR in the future to expand successful stream flow restoration models and approaches to other watersheds
throughout the state—whether or not ESA-listed fish are present—where there is a direct correlation between
stream flow levels and fishery impacts.

Based on the often glacial speed at which legal and policy change                Garden Creek Stream
proceeds, it is important for local solutions to be nurtured and                  Flow and Channel
encouraged with or without such changes. Stakeholders should
                                                                                  Reconnect Project
work together at the local level and practice readily available
                                                                            Trout Unlimited is currently working with the
conservation methods and update equipment to make the most
                                                                            Forest Service, National Resource Conservation
efficient use of increasingly scarce water. This also means taking          Service (NRCS), and Conant Valley Ranch to
advantage of various federal Farm Bill and other state and federal          modernize the irrigation system, remove fish bar-
landowner incentive programs to ensure that the infrastructure              riers, and restore the flow and channel of Garden
                                                                            Creek, a South Fork Snake River tributary. The
necessary to increase efficiency is obtained and the overall goals
in terms of water savings and conservation benefit achieved.
                                                                            lower portion of the creek once provided access
                                                                            for large river fish to good national forest spawn-
                                                                                                                                                        11
                                                                            ing and rearing habitat. While the landowner is
Across the West, farmers and ranchers are voluntarily joining               the only water right holder in this small drainage,
                                                                            the project involves multiple components
community efforts to conserve water and better protect rivers,              including converting from flood to center pivot
fish, and wildlife. To balance drought conditions, fully appropriated       irrigation and allowing conserved water to be
surface flows, shrinking aquifers, and changing climate patterns            used instream, channel re-creation, riparian
                                                                            re-vegetation and protection, and the installation
and trends with environmental concerns and agricultural needs,
                                                                            of a new culvert under a major state highway.
Idaho must make critical water management decisions today to                With the facilitation of Trout Unlimited, much
ensure the continuing availability of water tomorrow. The remain-           of the funding for the new irrigation system
der of this report focuses on highlighting some of the rivers and           was obtained via Farm Bill funding and an
                                                                            agreement between the NRCS and landowner.
streams in Idaho where low stream flows threaten fisheries. Most            Trout Unlimited and the landowner have agreed
importantly, however, the report stresses the collaborative attempts        to meet at the start of the irrigation season to
that are being made in many of these areas to address stream flow           discuss annual water use and delivery plans so
issues in ways that meet both landowner and fishery needs.                  that ranch and fishery needs are met.
     Idaho Rivers and Streams at a Cro s s ro a d s



                                   1–Salmon River Basin
                                   2–Lemhi River
                                   3–Pahsimeroi River
                                   4–Big Wood River
                                   5–Silver Creek
                                   6–Boise River Basin
                                   7–Big Lost River
                                   8–Little Lost River
                                   9–Bear River & Bear Lake
                                        St. Charles Creek
                                        Fish Haven Creek
                                        Thomas Fork of the Bear River
                                   10–South Fork of the Snake River
                                   11–Henry’s Fork of the Snake River




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