2003 Resources & Environment
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January 8, 2003
January 13, 2003
January 15, 2003
January 17, 2003
January 20, 2003
January 22, 2003
January 24, 2003
January 27, 2003
January 28, 2003 – Public Hearing
January 31, 2003

February 3, 2003
February 5, 2003 – Joint Meeting
February 7, 2003
February 10, 2003
February 12, 2003
February 14, 2003
February 17, 2003
February 19, 2003
February 21, 2003
February 24, 2003
February 26, 2003
February 28, 2003

March 3, 2003
March 5, 2003
March 10, 2003
March 12, 2003
March 17, 2003
March 19, 2003
March 21, 2003
March 24, 2003
March 26, 2003
March 28, 2003
March 31, 2003

April 2, 2003
April 7, 2003
April 9, 2003
April 14, 2003
April 23, 2003
April 28, 2003

May 1, 2003

DATE: January 8, 2003
TIME: 1:30 pm
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Brandt, Burtenshaw,
Cameron, Kennedy, Little, Schroeder, Stennett, and Williams.
MEMBERS
ABSENT/EXCUSED:
None
The meeting was called to order by Chairman Noh at 1:40 p.m.



Chairman Noh welcomed new members of the committee and introduced
committee staff members: Toby Rood from Emmett as Page, and Darby
Harris, Committee Secretary.



Lawrence Wasden, Attorney General, informed the committee his office is
available to provide legal advice to legislators. Upon inquiry from the
committee, Wasden explained the three levels of advice. The first is a
letter of information; second a letter of guidance; and thirdly, a formal
opinion. He noted the formal opinions of the Attorney General’s office are
published each year. Wasden noted the AG’s formal opinion does not
have any court significance. The Attorney General’s office gives the best
advice it can, but the advice has no legal standing.



He then introduced William von Tagen, Deputy Attorney General,
Division Chief, Intergovernmental and Fiscal Law Division.



Von Tagen presented to each member of the committee a copy of the
Idaho Ethics in Government Manual prepared by the Attorney General’s
office. He explained to the committee the Bribery and Corrupt Influence
Act, the Prohibitions Against Contracts with Officers statutes, and the
Ethics in Government Act. Upon inquiry from the committee, Von Tagen
noted that where two or more general statues apply to the same situation,
an attempt should be made to reconcile the statutes. Some acts are not
necessarily prohibited, but do require disclosure. The prohibitions apply
to all public servants, which is defined as any officer or employee of
government, and any juror, advisor, or consultant performing a
governmental function.



Upon further inquiry, Von Tagen stated a conflict of interest is defined as
any official action, decision, or recommendation by a person acting in a
capacity as a public official, which would result in a pecuniary benefit to
the person, a member of the person’s household or business or which the
business is associated, or would benefit more than others in the same
business. Disclosure of the conflict of interest would satisfy the
requirements under the Ethics in Government Act. Von Tagen then
replied in generalities to hypothetical situations proposed by various
members of the committee.



Following his presentation, the committee discussed various topics which
will be addressed this legislative session. Chairman Noh noted an evening
meeting has been scheduled for Tuesday, January 28, in the Gold Room
regarding off road vehicles.



There being no further business to come before the committee, the meeting
was adjourned at 3:10 p.m.






DATE: January 13, 2003
TIME: 1:30 pm
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, and Kennedy
Meeting was called to order by Chairman Noh at 1:45 p.m.



Steve Allred, Director, Department of Environmental Quality, informed
the Committee the department originated about thirty years ago, but
became a state agency July 1, 2001. He noted the department is the
twentieth state agency and the last one as the state constitution provides
for a limit of twenty. The department is guided by a seven member board.
Two members of the board have been reappointed by the Governor and
will be considered by the Senate this session. The department is divided
between two Senate Committees: the Health and Welfare Committee, and
the Resources and Environment Committee.



Allred stated the department budget is performance criteria based under a
cost control process. He proudly noted the department’s overhead is
fifteen percent of its budget. Last year’s departmental backlog of air
quality permits has been addressed and there is not a backlog at this time.
The department is on schedule with the TMDLs. He stated state water
quality has improved substantially because of volunteer citizen efforts for
implementation. Twin Falls Canal Company and North Side Canal
Company are two examples of good voluntary effort. Public health is the
highest priority of the department.



Some specific areas of interest are: Pit 9 at INEEL remains a controversial
issue with the definition of what is to be removed under the formal
agreement to be determined by the courts. Some of the problem at INEEL
is complicated by national security issues. Upon inquiry, Allred noted
there is some plutonium movement, but is infrequent and is barely
traceable. However, it is being monitored and tracked closely.



The Coeur d’Alene Basin is not anticipated to be a controversial issue this
session. Relationship with EPA remains challenging. In relation to
ground water issues, there are twenty-five areas in the state with
significant contaminated drinking water, mostly nitrogen. Two sources of
contamination are septic systems and too much fertilizer applied at the
wrong time of year. The deterioration of the ground water will take
approximately twenty years to turn around. He noted the problem cannot
be solved by regulations alone and changing citizen practices is necessary.



The environmental problems at the FMC plant in Pocatello are
problematic because some of the involved real property is tribal lands
while the remainder is non-tribal. He noted FMC has been cooperative
and has a good commitment to environmental concerns in the ponds on
private lands. The slag piles will be covered and planted with vegetation.



Allred stated there has been a significant improvement in air quality. In
connection with air quality, dairy odor management is a significant issue.
In an effort to avoid duplication of state monitoring, the Department of
Agriculture is the lead agency for dairy odor management. He
complimented the Department of Agriculture for their good working
relationship.



Upon inquiry from the Committee, Allred stated the department’s budget
is a status quo budget. Public health is the first and highest priority of the
department. Within environmental protection a determination is made
whether a budget reduction would affect the TMDL agreement or similar
issues. The next priority group was evaluated for long-term impacts,
trends, and deferment. Additionally, there were some things the
department was not required to do specifically. He noted the department
is doing less monitoring in the TMDL process which will make it more
difficult to delist. The new 303d list will be released this spring.



Upon inquiry from the Committee, Allred noted there is an effort among
state agencies not to duplicate work. The department has memorandum of
understanding agreements with the Department of Agriculture and
Department of Water Resources in an attempt to eliminate duplication. He
noted DEQ does not deal with odors; that has been delegated to the
Department of Agriculture, but maintain full authorities under EPA and
the Clean Air Act.



David Mabe, Administrator, Division of Water Quality, Department of
Environmental Quality, indicated there would be proposed legislation
forthcoming this session to address necessary changes regarding the
TMDL program. A court decision in North Idaho held TMDLs were to be
promulgated as rules. A solution has been reached with involved parties
that TMDL are plans, not rules. He noted one group feels that TMDLs
should be enforceable as rules. The TMDL (plans) would be enforced
through the different agencies and entities for water quality. Additionally,
the director should have the authority be able to develop a TMDL using
downstream state standards such as in the Brownlee/Hells Canyon
complex and the Lower Snake River/Columbia River complex. Those
water bodies are shared with border states under the Clean Water Act and
the State of Idaho will be able to develop a TMDL that will meet that
receiving state water standards. Negotiations are underway with EPA for
the adoption of the TMDLs so the state would not have to promulgate an
alternate state standard. Another issue is the allocation between watershed
advisory groups in regard to upstream nutrients. He noted the Boise River
does not indicate any significant impairment by nutrients, but it does
contribute a significant nutrient load to the Hells Canyon complex. The
department is attempting to clarify the upstream load application through
the appropriate watershed advisory groups. He anticipates the issues will
be resolved to the satisfaction of all parties and proposed legislation will
be brought to the Legislature this session.



Upon inquiry from the Committee, Mabe stated pollution trading is a tool
the department has been working on for the implementation of TMDLs.
This has been done on the Boise River with the establishment of a
management group with a pollution trading process. A market system
should enable workability for the trading process. The final step to be
settled is the permit allowing the permit holder to trade without being
liable for a violation. Mabe stated the first trade should be completed on
the Mid-Snake River this spring. There is a possibility of legislation to
allow the pollution trading plans to be adopted by reference in the rules.



There being no further matters to come before the Committee, the meeting
was adjourned at 3:05 p.m.






DATE: January 15, 2003
TIME: 1:30 pm
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, and Kennedy
The meeting was called to order by Chairman Noh at 1:35 p.m.



Scott Turlington of the Governor’s Office informed the Committee he is
the legislative liaison for environmental issues for the Department of Fish
and Game, Department of Environmental Quality, Office of Species
Conservation, Idaho Public Utilities Commission, Department of Lands,
Department of Parks and Recreation and Department of Agriculture. He
and members of his office will be most happy to assist the legislative in
whatever capacity they may.



She noted in Montana the state management plan is proceeding, but in
Wyoming assistance is needed. The position of Director for Wyoming’s
Fish and Game is vacant which complicates and delays the issue. The ICA
will continue its endeavors and resources to secure full federal funding for
state management.



Caswell further informed the Committee of OSC has a plan towards
delisting with the state management plan becoming the actual guiding
requirements. The draft will be available within the coming weeks which
he will bring to the Committee.



Jim Caswell, Office of Species Conservation, informed the Committee of
activities of his offices since the last legislative session. He noted their
offices are now fully staffed with the addition of Policy Advisor: Jeff Allen
Legal Counsel: David Hensley, and Environmental Liaison: Nate Fisher.
He stated the office’s proposed budget is frugal and he has been able to
pay ahead on fixed costs and utilize available federal funding. The role of
the Office of Species Conservation was to provide a one-stop shopping for
environmental issues and for the coordination with all state departments,
agencies and commissions.



Greg Schildwachter, policy advisor, Office of Species Conservation,
informed the Committee on the status of the wolf reintroduction/delisting
process. He noted the growth of the population has been significant with
an estimation of over 400 wolves in Idaho now. He stated there is
probably thirty actual packs in Idaho now. The state needs the ability to
have control to ensure a balanced ecological system. The effect on big
game herds had not been adequately addressed and discussed. Remedy to
depredation was to relocate a wolf, but this is not always possible. The
long term solution is for state management of wolves through the
Department of Fish and Game. He noted Idaho has a good plan and is
ready for the management task. Delisting will be a long process because
of the status of the state management plans in Montana and Wyoming.
Clarification of funding needs to be addressed; as well as statutory
changes to the Idaho Code to allow the Department of Fish and Game to
be involved in the program.



Sara Braasch, Idaho Cattle Association, reported ranchers throughout the
reintroduction area have the same concerns along with requiring federal
funding for state management. She noted the association has a good
working relationship with OSC and appreciates the exchange of
information. During a telephone conference call today on the issue of
wolves, she senses the ranchers feel the same in connection with wolves
and the problems created. The solution is believed to be state
management. However, states cannot afford to bear the costs of the
management.



Stan Boyd, Idaho Wool Growers Association, reported, as a member of the
committee drafting the state wolf management plan, there has been no
activity by the committee since the adoption of the plan last legislative
session. He expressed concern about the delay in delisting and the
resultant problems experienced within the state.



Upon inquiry from the Committee, Schildwachter stated the three state ten
pack each is not a rule or a federal regulation, but could be the basis for
litigation because it is in the federal recovery. One of the confusing areas
of the Endangered Species Act is there is no section in the law that
specifically sets out recovery and getting species off the list. The recovery
plans are written but with the knowledge they might not have the force and
effect of federal regulation. When the plan was written in 1987 it sets
forth the 10-10-10 in three states as the recovery goal. As the technical
understanding of wolves has developed, the recovery goal was changed to
reflect thirty within the three states. Today there are ten or more official
packs in each of the three states. OSC intends to have as many of the
possible issues resolved before litigation to minimize the legal delay. The
object is to meet all the possible scenarios proposed by the environmental
groups in the delisting process. He informed the Committee the last
original wolf to be reintroduced in the Yellowstone project has been killed
by the other wolves, probably his own offspring. Some people in the
environmental industry realize the overall benefit, for the credibility of
ESA and the effectiveness of wolf conservation, that delisting must take
place. Commitment delays by the National Fish and Wildlife Service and
the Department of Interior to delist is centered on the biological aspects.
They cannot propose delisting until Montana and Wyoming have their
regulatory mechanisms in place. The official proposal to delist was
scheduled for this year, but will be delayed because of the situations in
Montana and Wyoming. The decision on when Idaho would have a
regulated hunting season on wolves will be made based on biological and
professional information. He noted the difficulty will be in counting
wolves. Additionally, there is not a model depicting the interaction
between wolves and ungulates will be so the target harvest will be an
unknown. The decision will be difficult, but will be made the same as
with any other hunted species. Wolf harvest will need to be part of the
equation.



Upon inquiry from the Committee, Sarah Bigger, representating Senator
Mike Crapo, reassured the committee the state has been quite vocal in the
request for management funding because of the fiscal impacts to the states
because of the Endangered Species Act. The wolf appropriation had
proceeded through the Senate and is now awaiting the processing of the
Omnibus Bill. Senator Crapo is chairman of the federal subcommittee on
fisheries, wildlife and water and will endeavor to make changes to ESA.
The economic impact to the rural communities has been significant.



Schildwachter stated the federal request is for $2.4 million. $l.3 million to
the Department of Agriculture for wildlife services and $1.1 million to on
the ground management of wolves in cooperative programs with the
federal government and Idaho, Montana and Wyoming.



Steve Huffaker, Director, Department of Fish and Game, stated the
Wyoming Director of Fish and Game is now the Executive Director of the
International Association of Fish and Wildlife Agencies in Washington,
D.C. He noted an interim director has been appointed during the national
search. The search has been completed, but there is now a change in
Governors and there will be two new Fish and Game Commissioners.
Additionally, Wyoming Legislature would have an affect on this scenario.



He stated the Commission and Department are very concerned about the
impact of wolves on big game. Some of the outfitters have reported the
situation is better than in previous years. Biologically the wolves are
preying predominately on calf elk. National wolf experts report that
wolves are naturally lazy and will take the easiest animal to catch. Winter
conditions also affect what animals are taken by the wolves. The orderly
transition to state management is necessary to assure the management of
wolves in the back country. The intent of the reintroduction program was
game in the wilderness were there to provide forage for the reintroduced
wolf population.



Schildwachter reported the Governor has issued an invitation to Chairman
Penney of the Nez Perce Tribe to facilitate the transition to state
management of the wolves and what significant role would be the Tribe’s.
The Tribe is currently under contract with the federal government and
have hired staff, acquired equipment and knowledge. They hope to
continue to participate in the management. Negotiations are in the
preliminary stages.



Chairman Noh inquired of the status of the $300,000 contract for killing
coyotes. Huffaker reported the signed copy of the contract was sent to
John Graham, the successful bidder on the project, on December 18.
Graham now indicates he does not intend to sign the contract. He has
decided the controversy and several technical issues were of concern to
him and would affect the successful completion of the project. The State
Purchasing Division has informed the Commission of subsequent
procedures: awarding the same contract to the second bidder; cancel the
contract; or renegotiate a new contract of a similar nature. The
Commission make its decision shortly.



Upon inquiry from Senator Cameron, Huffaker stated Graham’s list of
concerns was extensive. One item was the disposition of coyotes and
whether the carcasses would need to be hauled into Idaho Falls during
business hours. Huffaker stated they could negotiate minor points such as
the carcass disposal. However, there were a number of other issues
involving the public, news media and department regarding the project.
Graham indicated he did not want to work in that kind of public scrutiny.
Minor points of the contract are negotiable as long as it did not change the
nature of the contract.



Senator Schroeder noted there has been a significant increase in the price
of coyote pelts over the past year.



Senator Cameron inquired about specifics of the contract. Huffaker stated
the contract required bidders to provide the carcasses to the Department
for disposal in facilities provided by the Department. The intent was to
ascertain a body count on number of killed coyotes and the time of year
that they were taken. Additionally, the Department would dispose of them
in an area out of public view. Senator Cameron expressed concern the
requirement would cause more problems than benefit and should be a
better way for the Department to determine how many coyotes were killed
and allow the trapper to maintain the carcass and reduce the price in the
contract and not create a public spectacle. He asked why the Department
chose to follow that line. Huffaker at the time the specifications for the
contract were released, the Department was getting sharp and direct
criticism with a demand for accountability for the expenditure of funds for
killing coyotes, along with environmental, conservation concerns. Once
the specifications for the contract were released, State Purchasing Rules
prohibit changing the contract. Huffaker stated Graham brought his
concerns forward in the final phase of the contract process. Graham was
informed by State Purchasing that the contract could not be changed at
that time. Graham then accepted the contract as had been specified.



Senator Cameron stated a number of the Commissioners intended on
removing turning in the carcasses as a provision of the contract. Huffaker
stated he was not satisfied with the way the whole process has transpired.

Chairman Noh stated the Committee was fortunate that JFAC chose not to
bring the $300,000 major policy issue to the Committee before JFAC
made the decision to go forward with the contract.



Senator Burtenshaw stated his concern the length of time for contract
negotiations. Huffaker stated if the Commission chooses to issue new
specifications it should not take a year, but would be dependent upon those
interested in doing the project. Huffaker stated he did not know about the
provision in the budget until he heard it read in JFAC meeting.
Immediately upon hearing about it, he contact Senator Hawkins. He
informed Senator Hawkins it would be much easier to accomplish this
type of a project if the Department had the ability to hire a trapper and pay
his expenses instead of a contract. He noted the state contracting process
is tedious and specific. Once the decision was made that it had to be a
contract, the Department and Commission did not have much choice.



Senator Burtenshaw stated several Senators have been trying to get that
thing going for five or six years for the Department to do this project and
got called out every time. Huffaker stated he was not aware that was what
was specifically desired. His knowledge of the proposed project started
last February.



Senator Burtenshaw commented the Department had studies on fish and
wildlife, but cannot seem to get this. Around the Idaho Falls area was the
area to prove that this thing could work. Some Senators went up and saw
what Graham does and reported it works. They felt if they could get one
time; one program they could evaluate the program. He stated the
program was important as the wolf program, because the deer population
there has virtually disappeared.



There being no further matters to come before the Committee, the meeting
was adjourned at 2:55 p.m.






DATE: January 17, 2003
TIME: 1:30 pm
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, and Kennedy
The meeting was called to order by Chairman Noh at 1:35 p.m.



Motion by Senator Pearce to approve the minutes of January 8, 2003, and
January 13, 2003; seconded by Senator Schroeder. Motion carried.



Alex Irby, Chairman, Idaho Fish and Game Commission, introduced the
members of the Commission in attendance: John Burns, Dr. Fred Wood,
Marcus Gibbs, Nancy Hadley, John Watts; Director Steve Huffaker, and
Roger Fuhrman.



Marcus Gibbs stated he was proud to be reappointed to the Commission.
He informed the Committee of his personal background and operation of a
seed potato farm with his son, the third generation. Gibbs is appreciative
of his family’s support and assistance in order for him to be active in the
community and state. He stated the Department is in the best shape it has
been in the past three and one-half years. He noted the director’s
knowledge and abilities have improved the Department’s operations and
helped to curtail controversy.



Upon inquiry from the Committee, Gibbs stated he does not favor dam
breaching. There are ways to restore the salmon and still have fish runs
with the dams intact.



Upon further inquiry, Gibbs stated he considered himself an independent
and does not truly belong to any political party. He stated in his area if he
were to run for political office he would register as a Republican in order
to win. He noted he has been approached by the Democratic and
Republican party to run for County Commissioner. His Mother still has a
“Church for Idaho” sign on her mailbox. Politically he supports individuals from both parties.






Upon motion, seconded and carried during the Committee
meeting of Friday, February 7, 2003, the following excerpt
is inserted into the committee minutes.



Verbatim transcript from Senate Resources and
Environment Committee meeting of January 17, 2003,
Room 433.



    Excerpt from testimony of Marcus Gibbs reappointment
    appearance before the Committee for confirmation:



    Senator Williams: I see you are an independent on your
    piece of paper. Is that still intact?



    Chairman Noh: Yes, Chairman, that’s the party affiliation
    or lack thereof.



    Gibbs: Senator Williams, I was asked that question three
    years ago. I am slightly more prepared today to answer
    today than I was three years go. I am probably still and
    independent. I am also a realist and know if I am seeking
    office in Caribou County or in Legislative District 31, I
    would probably run as a republican, if I had to chose. In
    the last general election before I was appointed to this
    position, I was approached by both the Democratic party
    and the Republican party to run for county commissioner.
    And I still have the good fortune of having a Mother who
    lives next door to me and she still has a “Church for Idaho”
    sign on her mailbox. So…. (Laughter.) I will testify to that.
    Politically, I have supported people from both parties.



Senator Schroeder noted in Latah County there are several meat cutters,
who cut the meat from deer and elk carcasses. He expressed concern
whether hunters from other states, especially Washington, would be able
to bring their game into Idaho to be processed by meat cutters. Gibbs
stated the Commission has implemented an information brochure on
chronic wasting disease. The Commission’s recommendation is to leave
as much of the carcass as possible where it is shot. There is a standing ban
on importation of live animals to Idaho. Hunters are allowed to transport
game to and from the neighboring states. He noted it was not an
insurmountable problem as long as the those carcasses are properly
disposed of by meat processors. He noted the regulation is not restrictive
at this time.



Senator Kennedy stated that some of the deer and elk in Elmore County
are being fed in the winter time by the Department and should this be
done? Gibbs responded he supports feeding deer and elk in emergencies.
The Commission has a policy statement which does not support feeding
except in emergency situations. The long term solution is winter habitat
and winter range. One of the problems is the encroachment of housing
developments on winter range. Upon further inquiry, Gibbs stated that
when people move into these areas, they should adjust their lifestyles to
accommodate the game animals as the animals were there before the
encroachment. Gibbs stated winter feeding should be used as a one time
solution. Alternatives would be relocation and harvest. He noted there are
animals traveling over two and three management zones from winter to
summer range so there is not necessarily a direct correlation between range
and wintering. He thinks the policy of the Commission should remain
intact and the Department have the opportunity to feed under extreme
emergency conditions as outlined in the policy. He stated if animals are
fed three consecutive years in a given area, a feed cycle begins and
ongoing feeding would be necessary. Not all districts in the state have a
winter feeding advisory Committee. Upon inquiry, Gibbs stated some
membership on the winter feeding advisory Committee should be local.
Additionally, the Committee should be comprised of people with diverse
interests so there is a broad prospective.



Senator Kennedy inquired about a monthly publication entitled “Contact.”
Contact is a publication of the Department of Fish and Game. On page
three of the November 15, 2002, issue states: “Fish and Game will also
work towards eliminating the feeding of wild deer and elk because
concentration of animals could cause the spread of undetected chronic
wasting disease. Winter feeding operations tend to draw animals together
from more than one herd area allowing diseases to be carried back into
widely scattered populations that would otherwise rarely mix.” Gibbs
stated the quote is consistent with the policy criteria of the Commission.



Senator Kennedy requested Committee time be set aside to delve into
these matters more specifically.



Upon inquiry from Senator Pearce, Gibbs stated the Commission has a
predator policy developed about one and one-half years ago. The policy
addresses predator-prey relationships. Currently the deer herd in eastern
Idaho is suffering dramatically. The Department and sportsmen are
currently conducting meetings, gathering recommendations. The
commission will review the policy based on the information gathered.



In response to an inquiry, Gibbs stated that he was an independent to
Senator Stennett’s inquiry if there was an attachment to the official oath
requesting a declaration of political affiliation. He supports Democrats
and Republicans, but consider himself an independent.



Upon inquiry of proposed legislation pending in the Idaho House of
Representatives prohibiting landowners from feeding wildlife, Gibbs
stated he had no knowledge of the legislation. He stated one of the
problems faced by the Commission is the unauthorized feeding of game
animals in the winter. Gibbs stated that from a management standpoint, he
is opposed to allowing the feeding of game on private ground, but from an
enforcement standpoint, the issue is private property rights. He noted the
problem is very difficult for the Department to handle.



Upon inquiry from Senator Stennett, Gibbs stated the Department of Fish
and Game does not control private elk ranches; that is under the
jurisdiction of the Idaho Department of Agriculture. Currently the director
of the Department has a policy prohibiting the importation of deer or elk
into Idaho because the chronic waste disease. He noted private deer/elk
ranches in Idaho are monitored for the disease. The Commission does not
currently have a policy statement, regulation or projected costs on chronic
waste disease. He noted Wyoming and Colorado have been addressing
this problem since the early 1960’s and they still have deer hunting
opportunities where the disease has been diagnosed. Those states still sell
all the hunting permits available. Chronic waste disease at this time is a
management problem.



Senator Cameron noted Idaho representatives to the Northwest Power
Planning Council were recently able to negotiate reducing the amount of
water sent down stream. Gibbs stated the Commission has not addressed
this issue, but as a member of the Last Chance Canal Company, he is not
supportive of water leaving the state unless on the basis of willing buyer-willing seller and not adversely affecting the water rights within the state.



Sarah Braasch, Idaho Cattle Association, noted the organization’s support
of Gibbs’ reappointment to the Fish and Game Commission. He brings the
perspective of a landowner to the Commission and understands the
wildlife habitat provided by farmers and ranchers.



Jim Hagedorn, Viola, Idaho, a member of Concerned Sportsmen of Idaho,
urged the Committee’s endorsement of Gibbs because he is very open and
good to communicate with.



John Watts, putting his lobbyist identification badge in his pocket,
informed the Committee of his background. He has a long family history
of hunting and respect for the land, wildlife and hunting ethics. His
biographic statement sets out his membership and activities with many
organizations. He noted the activities have been most informative and
educational. His educational background is set forth in the attached
biographical statement. He has made it a career to be involved in the
public sector on human service, natural resource and education issues. He
noted he is a partner in a private governmental affairs- political consulting,
philanthropic fund raising firm in Boise. One of these areas is lobbying.
He no longer represents the Outfitters and Guides Association because of
the potential for a conflict of interest with his membership on the Fish and
Game Commission. He stated it is a privilege and honor to be asked to
serve on the Commission. He now represents the Idaho School Board
Association and the Library Association and does not anticipate a conflict
of interest.



Chairman Noh noted his conversations with Watts about conflicts of
interest and found Watts to be willing to handle conflicts of interest openly
and responsibly. Watts stated all lobbyists are required to register with the
Secretary of State and must register for each and every one of their clients.
He is registered and has been registered since he began his lobbying
career. He noted a booklet will be available part way through the session
listing all the lobbyists. Additionally, the information is available through
the Secretary of State’s web site.



Upon inquiry from Senator Williams, Watts replied the Commission
policy is for the rivers to remain in their natural state as much as possible.
Each of the rivers are reviewed and assessed on an individual basis. The
Commission relies upon individuals who have the knowledge and
expertise of various aspects of the impacts. More specifically, Watts
stated he supports the Commission’s position and attempts to find ways to
augment the return of fish. Habitat improvement, catch ratios,
transportation alternatives and river flow augmentation. He is open to
alternatives that would keep everyone whole and supports the willing
buyer – willing seller program. The program must take into consideration
the farmers, individual water rights and public rights.



Upon inquiry, Watts reported he had a great deal of respect for Idaho’s
members on the NWPPC, Danielson and Kempton, and appreciates their
flexibility in making their determinations to keep everyone whole. He
supports Idaho’s effort to protect its water. Upon additional inquiry, Watts
expressed concern about access to private and public lands for
hunting/fishing opportunities. He supports a proposal to purchase access.
It is very difficult for farmers to make a living. As the lands disappear or
are closed for hunting or fishing, the Commission needs to be working for
ways to gain access. The Landowner Relationship program is an avenue
to be developed by the Commission. There should be some way to enter
into an agreement with landowners to purchase access opportunities for
the general public. Another problem is the purchase of hunting
opportunities through a private and exclusive arrangement, locking out the
general public. There is more pressure on landowners, especially in this
area, because of the population growth resulting in less land, habitat and
more pressure on the game animals. Watts stated predator control is one
of many tools that must be considered for wildlife. The balance must be
carefully identified, scientifically and responsibly. He noted, as a
passionate bird hunter, that foxes, skunks, coyotes and feral cats are a
problem on game birds, but there are other factors, such as the
diminishment of land, that must be considered.



Butch Olson, Middleton, chairman, winter feeding, urged the Committee
to support the appointment of Watts to the Idaho Fish and Game
Commission.



Kip Bryson, Pheasants Forever, urged the Committee to support the
appointment of Watts to the Idaho Fish and Game Commission.



Herb Meyr, Mountain Home, urged the Committee’s support of Watts’
appointment.



Steve Goddard, Mountain Home, also asked the Committee’s support of
Watts’ appointment.



Jeff Barney, Boise, supports Watts’ appointment to the Commission.



Jane Gorsuch, Intermountain Forest Association, recommends the
confirmation of Watts to the Idaho Fish and Game Commission.



Sarah Braasch, Idaho Cattle Association, supports Watts’ appointment.



Stan Boyd, Idaho Wool Growers Association, supports Watts’
appointment.



Lauren McLean, Idaho Conservation League, recommended the
Committee support Watts’ confirmation to the Idaho Fish and Game
Commission.



Senator Stennett expressed concern regarding the legality of the Oath of
Office signed by members of the Fish and Game Commission meeting the
specifications of the Idaho Code. Additionally, he would like to have a list
of Commission members and their declared political party. This
information will be obtained and provided from the Governor’s office.



There being nothing further to come before the Committee, the meeting
was adjourned at 3:00 p.m.






DATE: January 20, 2003
TIME: 1:30 pm
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Schroeder, Burtenshaw,
Williams, Brandt, Little, Stennett, and Kennedy
MEMBERS
ABSENT:
Senator Cameron absent.
The meeting was called to order by Chairman Noh at 1:35 p.m.



At the request of Senator Stennett unanimous consent for the gubernatorial
appointments of Marcus Gibbs and John Watts will be held until Wednesday’s
meeting in order to obtain political affiliation information of the members of
the Idaho Fish and Game Commission and to correct the Oath of Office by the
pending appointees to include political affiliation as provided in the Idaho
Code.



Jeff Youtz, Supervisor, Budget and Policy Analysis, Legislative Services
Office, provided to the Committee, a general fund comparison information
sheet along with a comparison of all funds. The Committee was provided a
copy of the Legislative Budget Book for the 2003 Session for the Natural
Resources Section. These provide the data on two years of actual
expenditures, the current year appropriations, the 2004 Governor’s
recommendation, and the change in the Governor’s recommendation for
changes in 2003 which sets out what the percent change represents. Overall
the Governor’s general fund budget recommendation is a 2.9 percent increase
over the current year appropriation. There is a temporary hold back, which
has just expired, which will reduce the 2003 appropriation and general fund by
3.5 percent. In 2003, there would be an actual budget reduction for the current
year. In 2004, the Governor has also recommended the 3.5 percent reduction
become a permanent base reduction for 2004 for affected state agencies.
Youtz noted that K-12 and higher education are exempt from the current year
hold back and from the 2004 base reduction.



Youtz explained the Department of Parks and Recreation budget as set forth
on page 4-51 in the Natural Resources Budget book. There are three major
appropriated programs in DPR. There were four, but there was a
reorganization process last year. About twenty-five to thirty percent of
general funds are DPR’s budget. The negative supplemental (the budget
reduction), is $301,800 for DPR. He noted there is some flexibility to allow
for transfers between programs. Vehicle replacement is an ongoing
replacement expenditure. He noted the Department of Fish and Game has a
different situation because of the fleet management system they initiated in
recent years. Upon inquiry, Youtz noted the $400,000 is for the acquisition of
Billingsley Creek State Park along with $80,000 from the University of Idaho,
which is the total bonding cost of $480,000. There is a cooperative
understanding between the University of Idaho and the Department of Parks
and Recreation for this project. After determining the base budget,
inflationary figures are added. This year there is an estimated fourteen percent
inflation for personnel costs, mostly health insurance. The Governor has
recommended covering both the employee and employer portion of the health
insurance increase. The Governor is recommending this in lieu of salary
increases as he does not want state employee salaries to go backwards because
of the increase in health insurance costs. Last year not enough was budgeted
so the benefit package was modified. The fourteen percent increase is only an
estimate. The contract will not be signed with Blue Shield until April.



The inflationary adjustments allowed state agencies to request an inflationary
increase of 2.4 percent. The Governor did not include inflationary amounts
for state agency budgets other Medicaid and higher education budgets.

Replacement items are the reinstatement of equipment needs. DPR has
maintenance projects reflected in replacement items. Youtz noted last year
there were no funds for replacement items. The Governor has recommended
spending authority for DPR’s dedicated funds which contains $2,300,000 for
equipment replacement and park maintenance projects.



FTP represents full time personnel. Seasonal positions are not reflected in
FTP, unless there are permanent part-time positions which are shown within
the FTP figure. He noted seasonal positions do not show as FTP. Seasonal
positions are shown in the personnel costs amount. There are 158.25 FTP for
DPR. The budget for DPR was reduced five percent in FTPs last year. There
will be an additional 3.5 percent reduction this year, which is reflected by
17,000 seasonal man hours. Collignon noted seasonal employees each work
approximately 500 hours per year. Youtz noted the elderly volunteers are
generally camp ground hosts. Collignon noted generally DPR hires about 300
seasonal employees. The volunteer program contains 3,500 hours.



The Governor does recommend DPR’s line item budget for the Eagle Island
State Park. Negotiations with the City of Eagle for the operation of the park
were unsuccessful because the city did not have the resources. He noted the
Eagle Island budget item is the only general fund enhancement in DPR
budget.



Youtz noted the DPR Board has made a conscious effort that capital
investments be revenue generating. The yurt program and small cabin
program are two successful examples.



Youtz stated JFAC will be looking at further reductions depending upon the
outcome of the Governor’s proposed sales tax increase. Most of the sales tax
proposal replaces the $190,000,000 (one-time general funds) supporting the
budget this year which will not be available for 2004. The proposed effective
date of the sales tax increase is May 1, 2003. It is projected to raise
$18,000,000 for the current fiscal year. Therefore, the budget stabilization
fund would not need to be used. The negative supplemental will be needed
regardless of the sales tax increase. The state is required to have a balanced
budget by the end of the fiscal year.



Ray Houston, Analyst, Budget and Policy Analysis, Legislative Services
Office, explained the Department of Environmental Quality’s budget as
reflected in the attached information. He noted the DEQ’s budget is forty
percent general funds, twenty percent federal funds, and twenty percent
dedicated with five different programs. His oral presentation reflected the
information set out in the Idaho Legislative Budget Book. Non-cognizable
funding is a state statute requiring the funds were not known at the time the
budget was set by the Legislature and the funds are not state funds.



Upon inquiry, Steve Allred, Director, Department of Environmental Quality,
said there are funds in DEQ’s budget for ongoing water pollution control
which comes from $4,500,000 sales tax funds to the water pollution control
fund.



Houston further explained DEQ’s budget noting the Department has been
reorganized and is requesting an additional 2 FTPs for programming. The
new organizational chart is shown on page 4-9. The well-defined details of
the budget are set forth in the attached Legislative Budget Book.



Upon inquiry from the Committee, Allred stated the Department is in a status
quo position and will be able to continue providing its statutory
responsibilities.



There being no further matters to come before the Committee, the meeting
was adjourned at 3:00 P.M.






DATE: January 22, 2003
TIME: 1:30 pm
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, Kennedy
The meeting was called to order by Chairman Noh at 1:35 p.m.
Motion by Senator Burtenshaw to confirm the gubernatorial reappointment
of Marcus Gibbs to the Fish and Game Commission; seconded by Senator
Williams.



Substitute motion by Senator Stennett to not confirm the gubernatorial
reappointment of Marcus Gibbs to the Fish and Game Commission
because of the Idaho Code unique requirement for Fish and Game
Commissioners to declare a political party on their Oath of Office
statement; seconded by Senator Kennedy. He noted Gibbs is doing a fine
job, but he is serving illegally on the Commission. The Secretary of
State’s office reported the political parties in the state of Idaho are:
Republican, Democratic, Constitutional, National Law, and Libertarian.
There is not an independent party recognized in the state of Idaho. There
are now four Republicans sitting on the Commission and three
independents. He stated the independents violate the code requirements.
Committee discussion noted the intention of the initiative establishing the
Commission was not to disenfranchise the majority of the citizens of
Idaho, who don’t belong to any political party, from representing those
interests on the Commission. One way to avoid the problem would be the
drafting of a different oath with different language setting forth
membership in a specific political party or have no party affiliation.
Senator Stennett requested a roll call vote on the substitute motion.



Roll call vote on substitute motion:

Ayes: Kennedy and Stennett

Nays: Brandt, Burtenshaw, Cameron, Little, Pearce, Schroeder, Williams
and Noh

Substitution motion failed.



Roll call vote on original motion:

Ayes: Brandt, Burtenshaw, Cameron, Little, Pearce, Schroeder, Williams
and Noh

Nays: Kennedy and Stennett

Original motion carried.



Motion by Senator Schroeder to approve the gubernatorial appointment of
John Watts to the Fish and Game Commission; seconded by Senator

Stennett. Motion carried on voice vote.



Pro Tem Geddes will be floor sponsor for Gibbs and Senator Little will be
floor sponsor for Watts.



Chairman Noh informed the Committee concerning a letter sent to the
Bureau of Reclamation last spring concerning the relicensing of the Lucky
Peak Reservoir and the establishment of a minimum stream flow on that
reach of the Boise River. The Director of DPR has requested the letter be
officially withdrawn from the record.



Rick Collignon, Director, Department of Parks and Recreation, provided
handouts to the Committee (attached) setting forth an overview of the
status of projects and programs. An additional handout (attached)
provided the Committee with statistics pertaining to the Department’s
various programs along with budget information. He noted the Legislative
Intent for the Department was very broad which has resulted in a wide
variety of projects and programs. The Old Mission State Park, which sets
on Trust Land under management of the Department of Interior along with
the Nez Perce and Coeur d’Alene Tribes. Mesa Falls is a cooperative
project with the U.S. Forest Service. Lucky Peak is a heavily used boating
and recreational park. Hells Gate on the Lower Snake River and Harriman
State Park are two additional parks. The Department is involved in
snowmobile trails, public campsites, trails on public lands, lakes and
rivers, especially boatable waters. The focus of the Department is to
operation a state-wide system of programs which focus on expanding
opportunities for the citizens. He noted the Department is governed by a
six-member Board appointed by the Governor. There are two trusts under
the Department: a trust for outdoor recreation camping, which is an
unfunded trust, but established under Governor Batt’s administration to
enable the Department to work with local, state and federal entities. The
other trust is a park land trust which is comprised of revenues from timber
management, grazing or resource management. These funds are
reinvested in resource management or additional lands. He noted the
Department administers the Safe Boating Act through the counties known
as the State Vessel Registration Account. Additionally, the recreational
vehicle program is under the Department and generates about $3,000,000
annually. The Sawtooth National Recreational Area mountain goat license
plate supports improvements in that recreational area. Last year the
Legislature created a new program, the cut-throat trout license plate,
which addresses a non-motoring program for anglers, which is coordinated
with the Department of Fish and Game. Collignon noted the Park n’Ski
program which provides parking for cross country skiers. The funds are
utilized by county and state highways transportation programs to remove
the snow for parking. He noted the Department is also responsible for the
management of endangered plants. There is proposed legislation this
session for changes in that responsibility. The Department also manages
three federal programs: the Land, Water, Conservation Fund, which brings
several million dollars of federal funds into the state for projects by state
and local governments; the Coast Guard Boating Safety Act is an
reimbursement for federal gas taxes; and the Recreational Trails, a federal
program, with funds also from federal gas taxes.



Collignon noted Idaho, with a tremendous amount of public land, has
many active partners in parks and recreation services and facilities. The
Department attempts to focus on public access for recreational interests.
Some of the trends in Idaho are reflected by the population growth with
interests in the state’s recreational opportunities. The recreational usage
indicates heavy use by families. Additionally, the education of all citizens
on the values and responsible use of the lands is an important program of
the Department. Economic development is vital to the rural economies in
the shifts from resource based economy to recreation and tourism. The
rural area community leaders are seeking assistance from the Department
in their economic development endeavors.



Collignon noted the 27 state parks are managed under partnership
agreements with the Bureau of Reclamation, Bureau of Land Management,
Forest Service, Corps of Engineers, Department of Lands, Department of
Fish and Game, and counties and cities. There are 8,000 public campsites
in the state. This was a record year for use of the state parks. It was a
tough year on the budget, but there was good public use. The registration
of recreational toys is a significant part of the Department’s activities.
One out of every three voters in the state has some kind of recreational
toy. This does not take into account other recreational items that do not
require registration. The general funds to the Department help in
maintaining the base line accountability so the facilities are available for
all citizens. He noted there are nine fund sources: general revenue fund,
parks and recreation fund, recreational fuels fund, parks and recreation
registration fund, public recreation fund, petroleum price violation fund,
park and recreation expendable trust fund, federal grants and indirect cost
recoveries.



Upon inquiry from the Committee, Collignon stated 36 additional camp
cabins will be added, which will generate additional revenue. These
cabins have no restrooms, showers or kitchen facilities, but are sleeping
rooms only. The Department is not going into the resort or hotel/motel
business. There is some competition with private campgrounds, but the
Department takes the economic area into consideration. The yurts are
located in back country areas with the exception of some at Winchester
and Ponderosa. The income from yurt rentals pays for the costs associated
with the cross country ski program. The only concessionaire in the park
system now is jet ski rentals at Spring Shores at Lucky Peak. He noted
there is a proposal for a marina at Lake Cascade, but will not be supported
unless there can be sustained revenue from the investment.



Upon inquiry about ATV’s, Collignon stated there is no difference in the
registration of a motor bike and trail bike which makes tracking difficult.
As of December 1, there is 29,448 ATVs in Idaho, which is a growth of
seventeen percent in the past year. However, the sales tax figures for
ATVs indicate 44,000 sold by dealers in the state. The enforcement in
connection with ATVs has required the Department to re-evaluate its role.
In the past when there has been a concentration of use, more trail heads
were created to disperse the use which enables self-governing actions.
The problem is when there is a concentration of use in one area without
the ability to develop additional areas. Then the solution becomes a
management issue.



Chairman Noh noted there will a joint committee hearing on Tuesday,
January 28, at 6:30 p.m. in the Gold Room on this issue. Invitations have
been sent to all the state and federal agencies involved in this process and
to the known organizations. Chairman Noh asked if there were any others
that should be contacted and encouraged the invitation of others.

Upon inquiry, Collignon stated there is not an state park in eastern Idaho
between Harriman and Bear Lake. Because of the population in that area,
the department is looking for a site. The budget expenditure request is to
set aside some funds for that purpose.



Ray Houston, Analyst, Budget and Policy Analysis, Legislative Services,
continued his review of natural resource budgets, focusing on the
Department of Water Resources. He recapped the information set out in
the 2003 Legislative Budget Book for the Natural Resources Section. A
copy is attached to the minutes of the past three committee meetings. He
noted the department is divided in five major budget programs. The hold
back for the Department includes $118,100 from Planning and Technical
Services, $150,600 from Water Management and $83,400 from the Snake
River Basin Adjudication. $83,400 was transferred to the adjudication
account from the Water Pollution Control fund to free general fund costs.
He noted there is federal funding available for flood plain mapping. The
department is successfully continuing a multi-year project to adjust the
calibration the Eastern Snake Plain Aquifer model because of conjunctive
management issues in surface and ground water. This project is
undertaken in conjunction with the University of Idaho. Water District #1,
and the U.S. Geological Survey Department. Funding is through the state
general fund, as well as U.S. Geological Survey, Bureau of Reclamation,
NASA, and Idaho Power.



There are four instream flow water rights yet to be adjudicated in the
SRBA. State general fund support for the SRBA is reduced by $96,500
via a fund shift resulting in a net general fund request of $512,000. The
Governor has recommended $608,500 be funded with Water Pollution
Control Funds rather than state general funds. The organizational chart of
the Department is included in the budget booklet. There are currently no
shared time (group) positions within the Department.



Upon inquiry, Dreher explained the projected costs of the SRBA have
changed significantly since the program was undertaken. The Department
is continuing to pursue legislation in respect to payment of federal claim
fees as a matter of equity.



In regard to the Silver Creek violation, Dreher stated the water users and
the water master, not in his official capacity, but as an agent for the water
users, incorrectly assumed that a permit was no longer needed. Areas
along a leaking dike were filled in which resulted in draining thousands of
acres of wetlands along Silver Creek. Dreher and Clive Strong, Deputy
Attorney General, attempted to intervene in the situation. Negotiations
with the federal attorney, Mark Ryan, for EPA resulted in having the water
users voluntarily resolve by doing the restoration work. The voluntary
restoration work was to be used as leverage for the reduction of the
penalty. However, the voluntary efforts were contingent upon an
agreement that there would be no penalty. EPA could not do that and the
end result was that the water users had to do the work anyway and still
may face a $l40,000 penalty fee.



Dreher noted there was a similar situation in connection with the Great
Feeder, a channel of the South Fork of the Snake River in the upper reach
of the Snake River Basin, used to convey irrigation water. The violation
in that area was by channeling a quarter mile of the river and dumped all
the soil into the wetlands. He noted this was a significant violation.



Both of these violations are tied to budget reductions in connection with
the Stream Channel Protection Act along with cooperative work with the
Corps of Engineers and other wet lands programs.



There are a total of 206 employees within the Department. Twenty-six
employees are temporary part-time employees which are hired on a
seasonal basis to do field work. The 26 are not included in the total.
Additionally, there are two positions on the Governor’s staff, which are
not included in the total count. The 8 Water Resource Board members are
included in the 206 FTPs. He noted the Water Resources Board for DWR
is within the Department budget, but not the governing entity for the
Department. Dreher stated there are 170 positions filled with 11 vacant.



Senator Stennett inquired why the stream channel protection program was
eliminated over the alternative fuel program. Dreher noted the alternative
fuel program is almost totally funded by federal funds that must be used
for energy conservation, alternative fuel efforts or from funds through the
Northwest Energy Alliance, which have to be used for energy
conservation. The stream channel protection program is important, but is
a small part of the work of DWR.



Senator Schroeder inquired as to the status of the Palouse aquifer study of
North Idaho. It was not included in the budget, but it is on the list of
priority aquifer studies. He noted the Palouse and Rathdrum studies are
tied in terms of importance. Dreher stated that applying for a water right
is different from actually obtaining a water right.

There being no further matters to come before the Committee, the meeting
was adjourned at 3:05 p.m.






DATE: January 24, 2003
TIME: 1:30 pm
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Schroeder, Williams,
Little, Stennett, Kennedy
MEMBERS

EXCUSED:

Senators Brandt, Burtenshaw and Cameron excused.
The meeting was called to order by Chairman Noh at 1:40 p.m.



Chairman Noh introduced Dick Smith, Forest Supervisor, Boise National
Forest to the Committee. Smith then introduced to the Committee, the
Deputy Forest Supervisor Suzanne Rainville, who has been Acting
Supervisor until Smith’s arrival last Monday. Smith informed the
Committee of his educational and professional background, noting he
received his master’s in forest ecology from the University of Idaho. He
comes to the Boise National Forest from the Washington, D. C. office for
policy analysis for the U.S. Forest Service.



Due to the decline in timber sales, Senator Larry Craig’s legislation
proposing payment stabilization to counties has provided the counties with
two payment options. He noted Idaho counties have chosen the new
system of payment based on the high three year payment average.



Smith noted the establishment of a fifteen-member advisory committee
composed of five representatives from user groups, five representatives
from political entities, and five representatives from environmental groups.
He noted the Southwest Idaho group is now operating and working
towards a consensus agreements.



The proposed changes in the National Fire Plan will affect all aspects and
all users. Smith said the State of Idaho is faced with the same changes and
affects.



The Boise National Forest Management Plan revision should be completed
in July, as the plan is currently in the consulting process with other federal
regulatory agencies.



Upon Senator Williams inquiry concerning the fuel loads in the forests,
Smith stated management of the fuels needs to be done by all parties. The
challenge is the determination of how, when and where, but there is a
consensus concerning the problem. Senator Williams stated his area of
the state is experiencing more and more problems in regards to the use of
all terrain vehicles on public and private lands. Chairman Noh noted there
will be a hearing by the Senate and House Resource Committees on
Tuesday, January 28, 6:30 p.m. on this issue. Smith stated that two
primary issues in the west are the fuels issue and access to public lands.



Senator Little expressed concern for the loss of 320 jobs in his area
because of lumber mill closures. He noted there is not a sawmill adjacent
to the Boise National Forest. Senator Little inquired if the new forest plan
provides for reasonable allowable cuts to enable a sawmill to open.
Smith stated he had not had an opportunity to review the Boise National
Forest’s new plan. He did note the plan does provide for active
management with timber and grazing components. The levels are not the
same as they were fifteen years ago. He noted only one-third of forest
lands are being cut now compared to l989. The Chief of the Forest
Service states that where it is appropriate, trees should be cut. Senator
Little noted the loggers are gone now and the income production for
schools has decreased. Little inquired about who is representing the
timber industry now that the loggers are gone? Little urged Smith, in his
review of the Boise National Forest plan, to ascertain that timber and
grazing components are carefully considered.



Ray Houston, Analyst, Budget and Policy Analysis, Legislative Services
Office, continued his presentation to the Committee on budgets. He noted
the Department of Lands budget begins on page 4-35 of the Natural
Resources Section. Seventy-two percent of the 2003 appropriation is
dedicated funds; fourteen percent general funds; and fourteen percent
federal funds. In the federal funds for 2003, there is a big increase to
$4,500,000, a $3,000,000 increase, which represents funds provided to the
Department by JFAC for spending authority for federal fire grants.
Additionally, the $23,700,000 is comprised of endowment funds. Six
million, two hundred thousand dollars is fire suppression costs from last
year, and $6,900,000 comes from other dedicated funds. He noted group
Full Time Personnel (FTP) funds of $3,600,000; twenty-one percent of the
personnel costs are group FTPs (seasonal and part-time employees), these
are not included in the Department’s FTP count. In regard to the tussock
moth control items, it is a supplemental which has been approved by
JFAC. He noted there is $600,000 in federal funds for the tussock moth
control in the Moscow Mountain area. The fire suppression supplemental
has also been approved for $5,850,000. $3,800,00 is for the general fund.
These funds were approved as requested. A budget reduction of $166,800
from the general fund represents 3.5 percent of the original appropriation.
The largest part is for fire preparedness.



He noted there are some provisions for pickup trucks, field equipment and
computers, which were recommended by the Governor. In the
nonstandard adjustments, $428,900 is for Attorney General fees. This is
an increase from $162,800 to $598,700. The increase is due to
endangered species issues, environmental, and endowment land issues
which the Department must address. He noted the Department has two
attorneys on staff and are requiring additional assistance from the Attorney
General’s office as well.



Upon inquiry, Houston stated most of the costs for attorney fees is covered
by the endowment fund, as well as some by the general fund. These are
generally endangered species issues and endowment land issues.



Winston Wiggins, Director, Department of Lands, noted the Department
has received notices from environmental groups regarding compliance
with the Endangered Species Act. No litigation has been filed, but there is
a considerable amount of staff time and legal staff time.



Houston further stated the Commercial Leasing Program has an
enhancement for $291,000 which will be from endowment earnings to pay
for property maintenance; as well as $60,000 for commercial property in
Boise and $35,000 for contractual obligations for appraisal of the Priest
Lake cottage sites.



Houston noted the endowment earnings fund includes the public schools,
agricultural college, charitable institutions, normal school, penitentiary,
school of science, mental hospital and the University of Idaho.



The Department’s budget reflects spending authority for cumulative
watershed effects analysis on forested watersheds and in regard to national
fire plan activities. $l,000,000 is included for the national fire plan grants
for the ongoing reduction of hazardous levels of fuel on private lands in
Idaho.



A department reorganization has shifted personnel to field offices so
equipment is needed in order for them to complete their duties. The
hazardous materials division requires funding for contract engineers to
investigate the nature, origin, and extent of potential contaminants on state
endowment lands.



The new organizational chart of the Department is set forth in the Natural
Resources Section of the Legislative Budget Book. A copy of which is
attached.



The budge book also contains graphic illustrations of the funding history
for the Department, as well as endowment contributions and expenditures.



Upon inquiry, Houston noted the Mine Closure Fund has an annual
appropriation of $140,000 with a fund balance of $712,800. Houston
reported the distribution of the mine license tax has been changed in recent
years.



In regard to fires, Houston reported in 2002 there were 308 fires covering
1,670 acres for state lands, but for the entire state 4,600 acres were
effected. The ten year average indicates 400 fire a year with 13,000 acres
burned with over $3,000,000 of general fund expenditures. There are
6,200,000 acres which the state is responsible to protect. This is mixed
ownership land because of agreements with various landowners. Houston
noted the costs are only after the fire started. The pre-fire suppression
costs of $6,800,000 must be included. He noted pending legislation in the
House to increase the property tax for fire suppression from $.45 per acre
to $.60 per acre.



Wiggins further informed the Committee, there were 300 temporary
employees last season with varied times of employment based on
respective projects. The primary employment is in connection with fires,
with the balance of temporary employees preparing timber sales for
auction. He noted the average cost per acre is more efficient on larger
fires than smaller ones. The bigger the fire the higher the total costs but
the costs are lower per acre.



Wiggins noted the Endangered Species Act is a significant issue on state
lands. The Department will attempt to achieve some level of assurance
from the US Fish and Wildlife Service for the state’s endeavors on state
lands. Additionally, Wiggins stated there is a need for investment and
asset planning for the endowments to ensure maximizing revenue. Land
exchange, acquisition and disposal is important because some state lands
that do not contribute adequately to financial returns. Creative ways are
needed to enhance state land ownership to increase the asset value while
increasing the revenues for the endowments.



Upon inquiry, Wiggins stated there has not been a challenge to any of the
grazing leases in the past year. The Sand Noble Springs parcel, which is
habitat for the Columbian spotted frog, was awarded despite a challenge to
classification of the lands. The Court ruled the state should have held a
contested case hearing, which will be held in the near future. This is a
quasi-judicial proceeding with sworn testimony before a hearing officer.
The hearing officer will determine the facts of the case which will be
returned to the Land Board for consideration. Upon further inquiry,
Wiggins noted the grazing lease was not challenged, but there was a
request for reclassification of the land from grazing to conservation. The
other issue pending is a challenge on a lease on the Lewis-Clark Trail. He
noted the land is timber land with grazing as a secondary use. The Land
Board elected to award the lease to the next higher bidder. The highest
bidder challenged the Board’s decision. The Court has ruled that a
contested case hearing should be held. The hearing has been stayed at the
request of the Department because the lessee has not performed in
accordance with the lease terms. The Land Board will hear this issue in
the next couple of months. The Board will either grant the lease to the
highest bidder or continue with the lessee and have a contested case
hearing. He stated grazing land is a very steady income source, despite
not being high.



The status of the timber export law has been modified as the result of Land
Board action. The application of the Act in different parts of the state has
changed even though the Act has not changed.



Upon inquiry, Chairman Noh informed the Committee will be addressing
the WestRock Project by way of legislation pending in House State
Affairs. The House committee will be the guests of WestRock for viewing
the site and area involved in this project next Saturday. He noted this
committee has always handled this type of legislation so the legislation
will be forthcoming. There are twenty commercial parcels individually
listed in the Idaho Code. The current lease was signed for ten years with
the option to renew four times. The issue is whether the lease should be
extended to a forty-nine year lease.



Upon inquiry from Senator Stennett as to the location of the Southwest
Office, which is listed as Twin Falls, Wiggins noted that is in error; the
office is located in Gooding. He noted the Gooding office staff have been
expanded so new facilities will be needed.



There being no further matters to come before the Committee, the meeting
was adjourned at 3:00 p.m.






DATE: January 27, 2003
TIME: 1:30 pm
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, Kennedy
The meeting was called to order by Chairman Noh at 1:35 p.m.



Winston Wiggins, Director, Department of Lands, explained the
Endowment Fund administered by the Land Board and Department of
Lands. He provided to the Committee a handout providing detailed
information on endowment land status. (A copy is attached.) He noted the
non-forested land designation has not been broken down into grazing and
other uses. The state endowment lands were granted to the state by the
federal government at statehood under the Equal Footing Doctrine. The
purpose of the lands was to provide for the support of public institutions
within the state. There are nine grants with specific on the ground
locations. Article 9, Section 8 of the Constitution of the State of Idaho
provides the basis for the management of the lands to secure the maximum
long term financial return to the institution to which granted. The money
is distributed to the public schools at the same percentages as other monies
for public education is distributed. For the public schools, the state was
granted every 16 and 36 sections in the state. There has been considerable
consolidation over the years. Subsequently there are some blocks of state
land which are very significant for the public schools. Two square miles
out of every thirty-six square miles of the state are devoted to public
schools. The other eight endowments were block grants with acreages as
shown on the handout. The state was allowed to select the acreage up to
and including a specific number of acres. Originally there were 3,600,000
acres of endowment lands which is now reduced to 2,461,181 acres. This
represents 763,985 acres of primary forest land which is actively managed
by the Department to create revenue through growth and sale of timber.
Secondary forest land of 223,114 acres is not capable of producing
significant board feet of timber per acre per year. The non-forested lands
are 1,474,082 acres which have never supported forest growth and are
primarily grazing lands. He noted some of the endowment lands have
productive timber along with grazing. The state endowment lands are not
public lands, but lands managed through a trust. The land is not managed
on a multiple use basis, but on a primary and secondary use basis. The
secondary uses must be compatible with the primary use.



The figures for endowment land revenues and expenditures by asset type
for fiscal year 2002 are set forth in the handout. (Attached.) He noted
$48,155,600 was the total net revenue to the earnings reserve in 2002.
Through the process of changing accounting practices, there were a few
expenses that overlap, but the totals are correct. After the endowment
reform, a Capitol Endowment Fund was established. 7,100 acres is
involved in this fund. The endowment is devoted to maintenance and
upkeep of the state capitol building.



The bulk of the revenues go into the earnings reserve. This fund is used to
pay Department expenses as related to endowment lands. Some of the
money is held in the earnings reserve for a savings against future down
markets. Some of the money is put into the permanent fund. Some of the
money goes directly into the permanent fund, which is real estate and
minerals asset types. The income from minerals goes into the permanent
fund. The permanent fund is invested by the Endowment Investment
Board.



Wiggins reported there are approximately 600 cottage sites involved in the
Payette Lake and Priest Lake sites. The lease provisions provide an
opportunity for lease holders to exchange equivalent value land for their
site.



Upon inquiry from the Committee, Jay Biladeau, Assistant Director,
Department of Lands, stated there have been approximately sixty land
exchanges in connection with the cottage site leases at Payette Lake. He
noted the land exchange is the choice of the lease holder. Wiggins
reported a minor backlog in process land exchange applications.



Timber harvest in the state is based on a five-year inventory. The
inventory rotates throughout the state on a year by year basis. Based on
information provided by the Department through modeling and sound
science, the Land Board is able to make the necessary decisions on timber
sales.



Ray Houston, Analyst, Budget and Policy Analysis, Legislative Services
Office, continued his report on the Department of Lands, specifically
addressing the endowment funds. His handout to the Committee is
attached.



Scott Nichols, Chief, Bureau of Surface and Minerals Resource
Management, brought the Committee up to date on the status of the
Thompson Creek Mine. His handout is attached.



Nichols then explained the status of the Grouse Creek Mine by Hecla
Mining company. His handout is attached.



John Lawson, Department of Environmental Quality, stated the water
quality meets drinking water standards, but does not meet the
qualifications for fisheries because of selenium and ammonia content.



Nick Krema, Deputy Attorney General, Department of Lands, reported the
Blackbird Mine operated briefly the summer of 2002, but operations have
stopped due to funding. Blackbird Mine is a cobalt development project
by Formation Capital. The mine is located approximately forty-five miles
north of Salmon, near the old town of Cobalt.



Chairman Noh stated there would be no formal committee meeting on
Wednesday, January 29, but encouraged attendance at a workshop in the
Gold Room on noxious weeds and pests. Additionally, he reminded the
Committee of the public hearing to be held Tuesday evening at 6:30 p.m.
jointly with the House Resources Committee concerning managing the
expanding use of all terrain vehicles on public and private lands.

There being no further matters to come before the Committee, the meeting
was adjourned at 3:05 p.m.






DATE: January 28, 2003
TIME: 6:30 pm
PLACE: Gold Room
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Schroeder, Burtenshaw,
Williams, Brandt, Little, Stennett, Kennedy
MEMBERS
ABSENT.
Senator Cameron absent.
The public hearing was called to order by Co-Chairman Noh. He noted the
hearing is a follow-up to a hearing conducted by the Senate committee last year
attempting to gain publicity regarding the concerns expressed about serious
conflicts with ATV use, the state. Chairman Noh displayed a copy of the
magazine “Dirt Wheels” containing photographs depicting riders’ misuse of
lands. One picture has the statement “Instant gratification is not soon enough.”
Another picture, depicting numerous riders on a ridge, states “Only those who
will risk going too far can possibly find out how far one can go.”
He noted
these do not represent the attitude of many people engaged in such activities.
On April 22, 2002, the lead story on the front page of the Wall Street Journal,
Off Road Vehicles Now Fly the Waters of SW Texas” noted large four-wheel
drive vehicles, not ATVs, had discovered that the beds of rivers and streams
belong to the public. He noted many dozens were gathering to course up and
down the river beds. Additionally, he noted an article in the Salt Lake City
newspaper about the Mayor of Salt Lake City on a helicopter tour trying to find
errant ATVs who were tearing up the front. The focus of the hearing is to try
and find ways to deal with the problems so that responsible people can
continue to enjoy their outdoor activities and recreation without damage to the
resources and without imposing unnecessarily on the other users of the
resources.



Co-chairman Noh specifically thanked Representative Butch Otter, 1st
Congressional District, and his staff for providing a copy of legislation (H
3808) introduced by Representative Scott McGinnis in the subcommittee on
Forest Health Committee. The proposed legislation endeavors to establish
uniform enforcement and penalty standards for all of the federal agencies
dealing with land management. The status and support of the legislation are
unknown at this time.



Co-chairman Stevenson expressed his concern of the abuses connected with
ATV users which effect the use by responsible ATV users. He noted the need
for better education as to the rules and regulations that apply to the respective
lands. The hearing will allow the agencies and public to express their ideas
and concerns.



Co-Chairman Noh noted the Department of Parks and Recreation and the
Board of Parks and Recreation have been accumulating constructive proposals
and ideas on how to improve this program. The Idaho Fish and Game
Department recently completed a pilot project and experiment in management
in connection with hunting. Additionally, there is representation from the U.
S. Forest Service Ogden Regional Office and Supervisors from National
Forests within the state. He noted the Supervisor for the Boise National Forest
is the liaison with the Legislature for forest issues. Additionally, the Bureau of
Land Management, Idaho office, is represented at the hearing, as well as
representations from state agencies. He noted various organizations and
individual interests are also represented.



Rick Collignon, Director, Department of Parks and Recreation, remarked of the
significant growth in off road vehicle registration and ownerships in Idaho and
the nation. The issue of off road vehicles encompasses the Department in park
and recreation, land management and wildlife, as well as conservation issues.
The issue of off road vehicle use, because of the growth, has overwhelmed
management strategies. Additionally, there is an absence of a clear
understanding of the values of management of off road vehicles. The affected
agencies do not have a clear understanding of the activity and its use. There
are several types of users: hunters, recreationalist, private landowners, and
other multiple use recreational interests.



There are 68,521 registered ATVs and trail bikes in Idaho. In 1992, there were
14,383 registered. Sixty percent of the currently registered machines are ATVs
and forty percent are trail bikes. In 2001, the industry reported the sale of
10,817 ATVs and trail bikes in Idaho. New models of ATVs are too wide for
existing ATV trails and this could lead to pressure for major costs to widen
trails. In 2002, the industry reported 15,804 sold; representing a forty-four
percent increase in the state. Every region of the state has been impacted.
Collignon displayed a chart showing the variance of growth throughout the
state, noting a 121 percent growth in eastern Idaho in the last five years, the
highest region. Another chart displayed by Collignon showed the twenty-nine
year growth in registrations in the state. The land management agencies and
the recreation agencies have been unable to adjust to the growth. There is one
ATV registered for every ten households in the state. He noted there are more
ATVs sold in the United States than highway motorcycles and off highways
motorcycles combined. This is a significant recreational group looking for
opportunities to use these vehicles on public lands.



A survey of hunters conducted in Idaho by the Forest Service, Bureau of Land
Management, Department of Fish and Game, and the Department of Parks and
Recreation, indicated that 53 percent of all hunters own ATVs, 47 percent of
those are actively used in hunting. A similar survey conducted in 1988 showed
figures of 17 percent for deer hunters and 3 percent for elk hunters. Today
those figures are 47 percent of hunters. Another question in the survey asked
hunters, if they encountered an off highway motorized vehicle, was the
hunting experience diminished. Eighty-six percent of deer hunters said yes; 84
percent of elk hunters said yes. The same survey asked about encountering
other hunters, 71 percent of elk hunters said the hunting experience diminished
and 67 percent of deer hunters said their hunting experience was diminished.
In the same survey, 68 percent of all hunters felt that the hunting experience
was compromised when they saw another motorized vehicle on a road or trail.
He noted the population growth has doubled in the past twenty years in the
state. The 46,000,000 acre public land base now has twice as many people
using the same lands. Idaho struggles with a multiple use tolerance of other
users on our public lands.



The baby boomer generation is the largest portion of the population segment to
approach retirement age. This same group have been active recreationalist
their entire lives and financially comfortable. The recreation time is very
important to this age group. He noted this group also has more knee, neck, and
back surgeries. Because ATVs are considered environmentally friendly and a
method of transportation to continue their outdoor recreation , they are very
popular.



Collignon noted a year ago, BLM, US Forest Service, Department of Fish and
Game and Department of Parks and Recreation, discussed this issue. As a
result of that meeting, the concept of a single state wide management strategy
for off road vehicles on public lands was developed. The four agencies agreed
current ATV restrictions need to be adequately signed and enforced.
Enforcement by these four agencies is limited. Additionally, it was determined
more or newer restrictions needed to be developed through the public hearings.
The hearing process would provide further education and implement
restrictions. Developing trail systems to meet the legitimate user needs of the
growing number of citizens is also basic. There is a state-wide coordinating
work group to bring a uniform approach to the issue. He explained a
demonstration project in Custer, Butte and Lemhi counties to develop a
designated trail system, even in sensitive areas. In beginning their
demonstration project, they found thirteen of the twenty-three most popular
models of ATVs do not even meet the legal definition according to the Idaho
Code. The industry and manufacturing has changed significantly. Discussion
with a manufacturer in Florida centers on pounds per square inch under tires
and turning radius for a new machine designed to carry two riders. The
industry is going to a “friendly” recreation mode. A new definition in the
Idaho Code for ATVs will be in proposed legislation this session. He noted the
many federal and state agencies with some degree of enforcement
responsibilities in regard to ATVs needs to be coordinated for responsible use.



Chairman Noh acknowledged Senator Little for providing a specific area for
ATV usage on his lands.



Ernest Lombard, Chairman, Parks and Recreation Board, stated the good thing
about an ATV is that anyone can ride one and likewise, the bad thing about an
ATV is anyone can ride one. He noted the Paiute ATV trail system brochure
which he provided to the Committee. (Copy attached.) He noted originally the
trail area was in an economically depressed area. Local recreationalist at
Richfield, Utah developed a trail system for ATVs. Through negotiations with
federal, state, county and city entities, they developed trails connecting
communities. There are now eighteen towns connected by the trail system with
services such as gas, motels, and even a private ATV camping site. The initial
system was a 230 mile loop system, which is now 1200 to 1500 miles of trails
that all connect through the use of existing trails and roads. ATVs can be a
problem, but they can also be an opportunity for economic development in
rural areas within the state. He noted the roads and trails are available within
Idaho for such a system. An ATV trail project, attempted in the
Challis/Mackay area, is an excellent example of possible economic projects for
the rural areas of Idaho, as well as meeting the needs of the users.



Steve Huffaker, Director, Department of Fish and Game, stated the Department
and Commission’s interest and support to address the concerns. He stated the
Department would like to address the issue as a hunting issue. ATV usage was
a non-issue in the Department ten years ago, but is today the number one issue
from officers in the field. The jurisdictional questions need to be resolved. As
the frustrations have grown, the Commission has struggled for several years
trying to address the problem. He noted there has been success on the Targee
National Forest with joint patrols by the Forest Service and the Department of
Fish and Game. There has been success working with private landowners
during antler pickup in the spring. At the last Commission meeting, the
restriction was lifted on antler pickup. He noted the Commission has defined
some traditional weapons and prohibited the use of motor vehicles in those
kinds of hunts. The program was well accepted by the traditional weapon
hunters. Last year the Commission designated Unit 47 and prohibited ATV
usage for the entire hunting season. The acceptance by the hunters and private
land owners has been good and is working. He anticipates the Commission
will propose some additional areas with some restrictions on ATV use during
the hunting season.



Lin Hintze, Chairman, Custer County Commissioner, explained the
coordination between the counties of Butte, Custer and Lemhi and the cities
within the counties, along with federal and state agencies, agreeing on the
development of a trail system. He provided a copy of a map of Custer county
depicting the federal, state, county and private landowners. The area
encompasses over 3,000,000 acres with 96 percent owned by the federal
government. Ninety percent of the trail system is already in existence by the
use of mining roads and logging roads. He noted there are ghost towns and old
mill sites along the trail site. There could be significant benefit to the rural
economies through the trail system.



Dick Smith, Supervisor, Boise National Forest, stated he is new to the position
and welcomes the opportunity to listen and learn.



Liz Close, Region 4, U.S. Forest Service, Deputy Regional Director of
Recreation for the Intermountain Region of the Forest Service, stated the
national recreation strategy contains strong wording about the management of
off road vehicle use. The use is a legitimate use of forest lands. The Forest
Service is working with the off road vehicle community to assure quality
motorized opportunities along with quality experiences while minimize
environmental impacts. The Forest Service will designate user trails and areas
on a site by site basis through the forest planning system. A monitoring
process will also be implemented. She compliment the efforts within the state
to address the ATV usage issue. She noted the issue must be worked through
all federal, state, county and city entities to involve and educate the public.
Enforcement issues must be clarified and implemented without boundaries



Jerry Rees, Supervisor, Caribou-Targee National Forest, stated the travel
access and noise were the issues to be clarified. He noted his forests have had
this under consideration for approximately seven years. There are more
complaints about irresponsible off trail, cross county, in meadows, uphill use
by ATVs. The forest has gone to a designated trail system and eliminated the
cross country, off trail use. He noted with a designated trail system there needs
to be enough trails for use. There are 2600 miles of trails in the Targee-Caribou Forest of which 55 percent are for motorized use. A significant
number of trails were not designed for the width required by ATVs. The
defining of an ATV trail system is highly debatable. The forest is working
with users to design a system, but he anticipates a lot of discussion, work and
investment. He noted the grant program in the State through the Department of
Parks and Recreation has helped significantly in this regard.



Rees noted education and enforcement are other issues. He stated common
brochures providing education to the public in proper and responsible use is
very important. He encouraged a statewide program with common standards.
The enforcement through joint patrols by state and counties has been most
effective.



Susan Giannettino, Deputy State Director, Resources and Planning Division,
Bureau of Land Management, stated she was representing K. Lynn Bennett, the
new State Director, who is unable to attend. She stated the growth has
exceeded expectations and they are unable to cope with the growth. She noted
BLM lands are ideal opportunities for ATV recreation, an appropriate
opportunity in proper places and in proper ways. She encourages the
coordinated enforcement that has been taking place. She acknowledged the
leadership provided by the Department of Parks and Recreation in this
program. Using existing roads and trails, a ATV trail system can be
implemented that provides a recreational opportunity for all interests. The
efforts in Custer, Lemhi and Butte counties are an excellent opportunity to
pursue.



Additionally, access information needs to be available to ATV users. She
noted a web based site is under consideration to provide the ongoing changes
in information. Giannettino stated law enforcement issues also need to be
considered. Partnership with the user community and education/information
sharing is critical. She stated another aspect is land management planning.
The older BLM land management plans provide the public the opportunity to
go almost anywhere they want. It will take some time for BLM to bring these
plans up-to-date. BLM has been working with the Department of Fish and
Game to develop strategies regarding ATV usage during the hunting season.
She noted BLM has a new position, an off road vehicle coordinator, which will
coordinate agency participation and efforts. BLM is committed to providing
quality opportunities to off road vehicle users throughout the state. She again
noted that signing and enforcement are the biggest issues.



Wayne Weiner, Island Park/Twin Falls, stated his experiences in the Island
Park area over the past few years. Hikers, bikers, motorcycles and ATVs have
eroded the trails in that area to the point where they are no longer useable in
certain areas. With the speed and reckless use by ATV users, it has become
almost impossible for others to use the trails and area. He noted there is not an
ATV organization in that area to assist in solving this problem. Someone or
some agency needs to take on the responsibility. He suggested the
implementation of a state-wide sticker with the fees going to resolving the
problem. Idaho is a beautiful state and he hates to see it ruined by just a few.



Bill Jones, President, Idaho A.T.V. Association, Boise, speaking in behalf of
the organization, stated that with the increase in off road vehicles, along with
the increasing population within the state, it is inevitable to have irresponsible
and thoughtless riders. The association was established because of that
problem and the possibility of losing the opportunity to ride on open roads and
trails. He seeks to keep the roads and trails open for all to enjoy responsible.
The association has received several grants from DPR for the development of
brochures to provide education and information. Jones noted Senator Little has
allowed an ATV park in the Emmett area on fence land set aside for that
specific purpose. He noted the members of the Association use their own
equipment for the maintenance of roads and trails for ATV use in southern
Idaho. Additionally, trail signs were placed at every intersection on 86 miles
of the Idaho Centennial Trail from the Nevada state line to Glenns Ferry. He
displayed a sample of the sign erected throughout the trail. Volunteers from
several ATV organizations participated in the project. He informed the
Committee of the other volunteer efforts by many ATV organizations in the
southern Idaho area. He noted volunteer effort results in a feeling of ownership
and pride in the project or area. Riders must be better educated on the rules
and regulations. Likewise, they should have input on the enforcement. He
proposes all ATV, trail machine, mountain bike, and snow machines be
assessed an additional $2 per machine per year for a designated fund for law
enforcement and search and rescue for specified areas of the state.



Robert Nelson, Twin Falls, stated his comments are the same as previous
speakers.



Ron Stricklin, Idaho ATV Assn., Past President, related his positive personal
experiences as a result ATV riding. He stated the complaints are caused by a
small number of people as with other sports. He questioned whether new laws
were needed or if better enforcement and better funding was necessary. He
stated cross country travel is not needed. The Mountain Home Ranger District
has created a demonstration project near Anderson Ranch Dam with a trail
system to help control abuses during hunting season. He noted the project is a
good example of what can be accomplished for recreation riders. He would
like to encourage and strive for the positive aspects of the activity.



Steve Gunderson, President, Idaho Trails Council, stated their organization is a
composite of all trail user groups to promote the protection and improvement
of Idaho trails. The council supports efforts to improve the ATV experience as
indicated in the brochures by the Department of Parks and Recreation. He
noted the council supports the proper use of ATVs.



Tom Judge, Idaho Bowhunters, provided a handout to the Committee
containing their recommendations to the outdoor recreation community,
legislative committees, state agencies, law enforcement and the courts and
possible legislation for the imposition of penalties, creation of an off road
vehicle account, funds of the account usage, and law enforcement
responsibilities. (A copy is attached.)



Brent Madron, President, Treasure Valley Trail Machine Association, urged
the development of a state wide trail system on public land. His two wheel off
road vehicle users support ATV usage for recreation, but would urge
consideration of a separate system for two wheel off road vehicles from ATVs.
He complimented the Department of Parks and Recreation for their efforts to
date, noting there is a definite public need for education and good information.



Brett Nelson, Ada County Green Party, urged the Committee to not overlook
the environmental impacts through ATV usage in deliberations of the issues.



Jack Fisher, President, Idaho Wildlife Federation, inquired why the issue was
of concern as ninety percent of ATV users are responsible. He noted the ten
percent causing the problems should be handled through enforcement of
existing rules and regulations. He stated his organization supports efforts to
resolve the issue.



Phil Homer, Boise, relinquished his time as his concerns had been spoken to by
previous speakers.



Clark Collins, Blue Ribbon Coalition, Executive Director, Recreation Division,
urged the Committee to keep in mind national funding for off highway vehicle
recreational use. He noted the increased number of registered ATVs and the
number of well organized user groups who are all willing to assist in solving
the problems.



Ted Howard, Shoshone-Paiute Tribe, Idaho Resources Advisory Council,
reminded the Committee people come to Idaho because of what Idaho has to
offer. He urged the Committee to remember any decisions and actions must
consider the environmental impacts and the legacy of the state. He urges
control of ATVs in designated areas and enforcement of rules and regulations
as the resource is not renewable and impacts can be irreversible.



Mike Ihli, Manager, Hewlett Farms, stated the Owyhee area has significant use
by off road vehicles and strict enforcement of rules and regulations is needed.
The damage to the Owyhee front is extensive.



Lauren McLean, Idaho Conservation League, noted their organization supports
the appropriate and responsible use of off road vehicles in designated areas.
She noted the destruction of vegetation and the spread of noxious weeds. She
urged the Committee to not convert single track trails to accommodate ATV
usage. ICL urges enforcement of regulations in the existing designated areas.



Russ Thurow stated he represents himself and other elk and deer hunters and is
concerned that unrestricted off road vehicle usage is destroying hunting. The
usage destroys habitat and drives game animals away from the hunting area.
He urged better management and enforcement of existing laws. He stated there
were too many existing trails affecting hunting.



Jim Juker said he was representing himself. He has been riding ATVs for a
number of years. He said ATV users can be and are the extra eyes and ears, as
responsible citizens, of public land usage. He urged better information on
designated area for usage.



There being no further matters to come before the joint committee; the meeting
was adjourned at 9:30 p.m.






DATE: January 31, 2003
TIME: 1:30 pm
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, Kennedy
The meeting was called to order by Chairman Noh at 1:40 p.m.



Senator Keough introduced eighth grade students, along with their parents,
from the Sandpoint Charter School.



Senator Keough then introduced RS 12451, proposed legislation to reduce
the minimum number of meetings held by the State Board of Scaling
Practices. She noted the proposed legislation would provide for the Board
to meet more often if the need arises.



Motion by Senator Little to send RS 12451 to print; seconded by Senator
Williams. Motion carried.



Marty Peterson, University of Idaho, introduced RS 112441, proposed
legislation to establish the Idaho Geological Survey because of the
reorganization at the University of Idaho. He noted the College of Mines
was merged with other colleges. Earl Bennett is the Dean of the College
of Science, Director of the Idaho Geological Survey, and the state
geologist.



Motion by Senator Schroeder to send RS 12441 to print; seconded by
Senator Brandt. Motion carried.



Karl Dreher, Director, Department of Water Resources, explained RS
12361, proposed legislation to increase the fee for filing of a protest in
regard to an application to appropriate water or against approval of change
to an existing water right. Dreher informed the Committee of the history
of the protest fee explaining the fee was to provide funds for the
Department for personnel to process the backlog of protests. He noted the
fee needs to be adjusted to be equitable with the fee charged for an
application. Upon inquiry from the Committee, Dreher stated the fee
increase is not intended to be a deterrent for filing a protest, but is intended
to be an equitable fee in line with the fee required for filing an application.
He does not anticipate any change in the number of protests filed because
of the fee increase.



Harvey Walker stated to the Committee he felt the fee was unfair to small
operators, especially those representing themselves in the adjudication
which may need to protest many applications, and suggested waiting on
the fee increase until the Snake River Basin Adjudication is completed.



Norm Semanko, Idaho Water Users Association, stated their organizations
supports sending the proposed legislation to print.



Motion by Senator Cameron to send RS 12361 to print; seconded by
Senator Brandt. Motion carried.



Roger Fuhrman, Department of Fish and Game, introduced RS 12395,
which would authorize the Department to enter into reciprocal licensor
agreements with Indian tribes possessing reservation land within the state.



Motion by Senator Stennett to send RS 12395 to print; seconded by
Senator Cameron. Motion carried.



Fuhrman then explained H 4, legislation to fish and game to strike
requirements for the Department’s compilation and disbursement of the
list of fishing and hunting privilege and license revocations to
conservation officers and license vendors.



Motion by Senator Schroeder to send H 4 to the floor with a do pass
recommendation; seconded by Senator Burtenshaw.



After discussion by the Committee concerning the provisions of the
Interstate Compact Agreement with neighboring states, upon the
unanimous consent request by Senator Stennett, H 4 will be held in
Committee for approximately another week to obtain further information.



H 5 providing for the transfer of lifetime licenses of a deceased minor
child was explained by Fuhrman. He stated there had been an situation
where the Department and Commission was asked to allow the transfer of
a fishing license to a sibling of a deceased child. The legislation would
allow the transfer of the same class license of an unused lifetime license of
a deceased minor with specific restrictions within the fourth degree of
consanguinity to include an adopted or step child. The Committee
inquired as to the criteria for a lifetime license.



Motion by Senator Schroeder to send H 5 to the Fourteenth Order;
seconded by Senator Kennedy.



Substitute motion by Senator Cameron to hold H 5 in Committee;
seconded by Senator Burtenshaw. Substitute motion carried on a voice
vote.



H 6, allowing the Department of Fish and Game to issue permits for live
fish transportation without a fee was explained by Fuhrman.



Motion by Senator Brandt to send H 6 to the floor with a do pass
recommendation; seconded by Senator Williams. Motion carried.



There being no further matters to come before the committee the meeting
was adjourned at 2:40 p.m.






DATE: February 3, 2003
TIME: 1:30 pm
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, and Kennedy
MEMBERS

EXCUSED:

Senator Stennett excused.
The meeting was called to order by Chairman Noh at 1:40 p.m.



Senator Pearce, subcommittee chairman of the rules assigned to the
Committee, stated there are only a few rules to be addressed by the whole
Committee. There are two rules of the Outfitters and Guides Board which
the House Resources and Conservation Committee has rejected. These
will come before this Committee through a concurrent resolution. One
rule pertains to the requirement of personal possession of a first aid card.
The other rule addressing the definition of “term.” Another rule to be
considered by the Committee is from the Department of Environmental
Quality concerning underground storage tanks, specifically the
specifications for the leakage valve. The rejected rule concerning
reasonable access pertaining to sewage tanks will be handled by the Health
and Welfare Committee.



Chairman Noh introduced Aaron Miles, representing the Nez Perce Tribe.

Chairman Noh informed the Committee of a joint meeting with the House
Resources and Conservation Committee on Wednesday, February 5, at
1:30 PM in the Gold Room will pertain to the Governor’s strategy for
dealing with the wolf issue by Jim Caswell and Greg Schildwachter,
Office of Species Conservation, and Steve Huffaker, Director, Department
of Fish and Game.



Steve Huffaker, Director, Department of Fish and Game, and Dr. Bob
Hillman, Department of Agriculture, presented information on Chronic
Waste Disease to the Committee. Huffaker explained the disease is caused
by an agent called a prion which is a unique misfolded, small protein.
How the disease is transmitted has not been determined, but it is
transmittable. CWD was first discovered in Colorado/Wyoming about
thirty years ago. CWD was relatively unknown until twenty years ago it
appeared in the upper mid-west in white tail deer in Wisconsin. The
Wisconsin herd was concentrated in a small area with approximately fifty
deer per square mile. They were being fed artificially which is believed to
have contributed to the development of the disease in the herd.

A national strategy was then developed for dealing with CWD in wildlife
and domestic animals. He noted the communication between DPR and
DFG has been excellent in addressing the concerns about CWD. CWD is
not present in Idaho at the present time. Efforts have been exerted to keep
CWD out of the state. DA has done a good job of controlling the situation
in relation to captive cervidae and DFG is responsible for CWD in
wildlife. He noted the attempts to increase awareness and better public
education. The Commission, rather than create regulatory mechanisms, is
providing information to hunters. The disease exists primarily in the brain
tissue and spinal column of infected animals. He noted some states have
permitted transportation across state boundaries of only boned-out meat.
DFG urges hunters in CWD areas to leave the meat in the field where the
animal falls.



Upon inquiry from the Committee, Huffaker stated the disease is
spreading geographically because it is no longer just around the Colorado-Wyoming border. CWD has spread throughout Colorado and is found in
captive cervidae facilities. The only known method of containment is the
eliminate the source. All animals within a designated area are destroyed to
prevent the spread of the disease. He stated the past year, Wisconsin
attempted to kill all the deer in a 300 square mile area because of CWD.
Wisconsin biologist estimate a ten percent kill because it is heavily
wooded farm country. White tail deer are very secretive animals. He
noted it might be possible to have a “scorched earth” policy in specific
areas in the state. He noted the herds in Idaho are very migratory. He
provided to the Committee a copy of the action plan. (Copy attached.)
The main focus is to keep CWD out of the state. He noted there is not a
live animal test available. CWD has an eighteen month incubation. An
animal can be contaminated long before CWD is manifested. It is
suspected that the disease has been around for some time, but has been
manifested in wild game experiencing severe feed and overcrowded
conditions.



Dr. Bob Hillman, Department of Agriculture, informed the Committee that
mad cow disease is not transmittable to deer and elk. The outbreak in the
United Kingdom was from consumption by cattle of material containing
brain and spinal cord. In many foreign countries, those products are
consumed by humans, which is a mode of transmission. The UK imposed
a ban on utilization of those kinds of products intended for human
consumption as a means to stop the spread of the disease in humans. He
noted the material responsible for transmission to cattle was improperly
rendered product. The product was partial rendered, not fully rendered.
Another theory in the UK is that the disease just evolved and has been
around for sometime, but at low levels. Another theory about CWD is that
the disease was transmitted from sheep to wildlife. The exact cause of
CWD is unknown, but the disease has been present since 1967 in wild
game.



Chairman Noh stated in the sheep industry, the central nervous system
tissue has been banned for some time from going into ruminate livestock
feed. Dr. Hillman stated FDA has also banned cervidae material in feed
products. He noted that any animal that is slaughtered undergoes a post-mortem inspection. Any animal showing any evidence of central nervous
system disease is not slaughtered and does not go into the human food
chain. Most of the cervidae are processed at custom plants.



Dr. Hillman stated the Department was not aware of any problems, but is
aware that Food Safety Inspection Service is reviewing procedures used
on cervidae. The sampling in Idaho has not indicated a presence of the
disease. USDA and the Department of Interior are working to establish a
surveillance plan which would sample many thousands of deer and elk
through the coming hunting season. There are a small number of
laboratories that have been approved to do CWD testing. He anticipates it
will take some time for testing results. Additionally, he stated the disease
will probably be found in more areas than anticipated. The risks of the
disease has not been a deterrent for hunters in Colorado and Wyoming.



Senator Schroeder inquired as to the disposition of animal heads after
slaughter. Dr. Hillman stated under the FDA rendered, ruminate protein
cannot be put into products for human consumption. The product may be
put into feed for chickens or pet food. The past twelve years’ experience
in the US through extensive testing has not shown any indication of the
disease. Additionally, Dr. Hillman noted that there is no evidence that
muscle tissue or milk is a source of the disease. He stated that the spinal
cord and all related structures are not permissible in food for human
consumption. Hillman noted the ongoing research over the past five and
one-half years in cattle regarding CWD . The cattle were put in a pen with
cervidae infected with CWD and after a time there has been no evidence
of transmission to cattle. There is a similar study with sheep that shows no
evidence of transmission over the past three and one-half years.
Additionally there has been a cattle study wherein the cattle were injected
in the brain with the disease. A long term study has indicated that two or
three of the cattle did have brain lesions consistent with a similar disease.
In the sheep study, two of the sheep have died or been destroyed; one
sheep had lesions consistent with CWD. Under natural conditions, there is
no evidence of transmission of CWD to cattle or sheep.



Huffaker stated the concern of the Department is the transmission between
ungulates. The plan of the Department will continue and surveillance will
increase. Additionally, the Department will continue participating in the
national program. He noted field personnel and officers have been trained
in what to look for in the wild. The Department will attempt to keep up a
good source of scientific data and information for hunters.



There being no further matters to come before the Committee, the meeting
was adjourned at 3:00 p.m.






DATE: February 5, 2003
TIME: 1:30 PM
PLACE: Gold Room
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Schroeder, Burtenshaw,
Williams, Brandt, Little, Stennett, Kennedy
MEMBERS
ABSENT:
Senator Cameron absent.
The meeting was called to order by Co-Chairman Stevenson at 1:40 p.m.



Co-Chairman Noh complimented and expressed appreciation to the
Governor, his staff, Department of Fish and Game, and Office of Species
Conservation for their efforts and coordination with the Legislature in
providing update information to the committees. He commented on the
imaginativeness and the thinking which was gone into the proposal
presented to the committees.



Jim Caswell, Office of Species Conservation, explained to the joint
committee the history and background of the Idaho Wolf Conservation
Plan. He noted past trying efforts to pass a state wolf plan. The plan was
a result of seven-years’ worth of work with seventeen drafts by the Wolf
Oversight Committee. Last year, Office of Species Conservation was
assigned the state lead in coordinating wolf issues by the Governor to
bring resolution. He noted Office of Species Conservation has been
actively involved with Wyoming and Montana in their respective
development of state wolf management plans. Caswell stated it became
evident several months ago that the biological recovery goal has been met
as of October 31 for the three-year commitment. Technically, delisting is
appropriate. The regulatory mechanisms for Wyoming and Montana have
not been finalized, but Idaho’s plan is ready. The Governor does not want
to wait for Wyoming and Montana to finalize their plans. Office of
Species Conservation has been instructed to determine how Idaho can
proceed as quickly as possible to wolf management. Accordingly, Office
of Species Conservation has been working with the Governor’s office, the
Department of Interior and others toward today’s presentation to the
Legislature. It is their intention to ask the Bush administration to
reconfigure the population segment by which Idaho’s fate and success of
delisting the species are dependent. (A copy of the letter is attached.)



Co-Chairman Stevenson acknowledged Keith Lawrence and Curt Mack,
Nez Perce Tribe.



Michael Bogart, Legal Counsel, Office of the Governor, stated the
Governor is fully aware of the emotional and value-testing components of
this issue. He noted the Governor, when he was Senator Kempthorne in
1994, was highly offended by the reintroduction of the nonessential,
experimental wolf population into Idaho. This program should not have
happened in the first place as people’s lives and property have been
impacted, on a daily basis, in some parts of the state. Today’s proposal
attempts to bring Idaho solutions to the problem. The approval of the
Legislature of the Idaho Wolf Conservation Plan is significant. The
success of the Endangered Species Act depends upon active involvement
by the stakeholders and the state. He noted the Department of Interior has
conveyed a willingness to work with the state. The challenge is to turn the
problem around so the values of Idahoans and not the bureaucrats in
Washington, D.C. The President, Idaho’s congressional delegation, and
Department of Interior are providing their support in the state’s endeavors
and the Idaho Wolf Conservation Plan. He noted four areas: (1) the Bush
administration will be asked to reconfigure the population segment; (2)
discuss with the Department of Interior reconfiguration of the existing l0j
rule for nonessential, experimental population; (3) request the Bush
administration engage in an advance notice of proposed rule making that
will accommodate Idaho’s interest and path toward delisting; and (4)
define the necessary Idaho statutory language.



Dr. Greg Schildwachter, Office of Species Conservation, reported the
wolves have been successfully reintroduced as an experimental population
and the state needs to focus on management. During his slide
presentation, he noted regardless of the exact number of wolves, there is a
steady increase in population distributed throughout the state.
Schildwachter said Idaho’s interest is to manage elk and deer, protect
livestock and private property from problem wolves and to receive fair
compensation for losses. He noted the necessity of implementing the wolf
plan, which gives immediate management authority, reaffirms the 1988
agreement with USDA Wildlife Services for killing problem wolves,
reaffirms the three state agreement with Wyoming and Montana, reaches
an agreement with the Nez Perce Tribe regarding cooperation and
oversight by the Governor’s Office of Species Conservation and the
Legislature. Schildwachter reviewed what would need to be done on the
federal level for an orderly transition to state control. He informed the
Committee of the estimated costs for Idaho control, initial and future costs
and personnel additions.



Upon inquiry from the Committee, Schildwachter responded to questions
regarding the Wyoming and Montana plan progress, the reference to
advanced rule making, funding of the management plan, the legislative
role and a proposal to update language in the Code.

Bogart stated the draft proposal for proposed legislation is still being
finalized, but will include the provision of an annual report to the
Legislature.

Schildwachter stated they are developing a time line for delisting and how
landowners and homeowners impacted by wolves will be able to deal with
problem wolves.

Steve Huffaker, Director, Department of Fish and Game, explained the
definition of “Special Species of Concern.” He noted state agencies are
coordinating their efforts on the wolf plan. Huffaker said that wolves are
well past biological recovery in the Western United States. He explained
findings of studies regarding the impacts of wolves on elk herds and the
difficulty in determining the exact number of wolves. Huffaker informed
the committee the wolves will move to areas where game herds are more
plentiful and this results in the fluctuation of the predator/prey system.



There being no further matters to come before the joint committee, the
meeting was adjourned at 3:05 p.m.






DATE: February 7, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Schroeder, Burtenshaw,
Williams, Brandt, Little, Stennett, Kennedy
MEMBERS
ABSENT:
Senator Cameron absent.





MINUTES
The meeting was called to order by Chairman Noh at 1:40 p.m.



Motion by Senator Schroeder to approve the minutes of January 17, 2003;
seconded by Senator Pearce.



Substitute motion by Senator Stennett to include in the January 17, 2003,
minutes the verbatim excerpt of Marcus Gibbs’ statement, to the seventh
paragraph, to the committee regarding political affiliation; seconded by
Senator Kennedy. After committee discussion clarifying the reason for
inclusion of the verbatim excerpt was to provide an accurate record of
Gibbs’ statement as it was an important portion of his statement. Senator
Kennedy noted it was important to include the verbatim excerpt in order to
clarify the minority report filed with the Secretary of the Senate.
Chairman Noh apologized for not remembering the last three words of the
transcript; he only remembered that if Gibbs were to run for office, he
would probably run as a Republican because that’s the only way he could
get elected and the three remaining words somewhat qualify that
statement.



Substitute motion carried by voice vote of the committee.



Motion by Senator Burtenshaw to approve the minutes of January 20,
2003; seconded by Senator Pearce. Motion carried.



Motion by Senator Stennett to approve the minutes of January 22, 2003;
seconded by Senator Pearce. Motion carried.



Motion by Senator Williams to approve the minutes of January 27, 2003;
seconded by Senator Pearce. Motion carried.



Senator Stennett introduced RS 12758C1; proposed legislation to
eliminate the display on point of sale transactions, the social security
number of an individual purchasing or applying for any license through
the Department of Fish and Game. Motion by Senator Little to send RS
12758C1 to print; seconded by Senator Brandt. Motion carried.



Jim Kempton introduced himself to the Committee and provided
informational brochures pertaining to the Northwest Power Planning
Council. (A copy of each is attached.) Additionally, Kempton provided a
copy of the February 7, 2003, news release by Bonneville Power
Administration news (a copy is attached) which announces an expected
raise wholesale power rates for utilities and large industrial customers due
to poor water conditions and low secondary (surplus power) revenues.



Susan Burke, Department of Environmental Quality, explained to the
Committee RS 12894, proposed legislation setting forth the powers and
duties regarding pollutant trading requirements.



Motion by Senator Williams to return to sponsor RS 12894; seconded by
Senator Pearce.



Senator Williams requested his motion by withdrawn upon the consent of
the seconder, Senator Pearce. There being no objection the motion was
withdrawn. RS 12894 will be rescheduled for Monday, February 10.



RS 12881 was introduced by Karl Dreher, Director, Department of Water
Resources, addressing the illegal diversion and use of water without a
water right.



Motion by Senator Kennedy to print RS 12881; seconded by Senator
Brandt. Motion carried.



Norman Semanko, Idaho Water Users Association, explained RS 12842C1
is proposed legislation defining and encouraging water conservation
practices and does not subject water rights to forfeiture.



Motion by Senator Pearce to send RS 12842C1 to print; seconded by
Senator Williams. Motion carried.



Semanko then explained RS 112843, proposed legislation to ensure use of
digital boundaries to describe place of use of a water right in the Snake
River Basin Adjudication shall not increase the burden of proof on a
claimant and clarified filing of a decree with the court.



Motion by Senator Little to print RS 12843; second by Senator Kennedy.
Motion carried.

There being no further matters to come before the committee, the meeting
was adjourned 3:05 p.m.






DATE: February 10, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, Kennedy
The meeting was called to order by Chairman Noh at 1:40 p.m.



Motion by Senator Brandt to approve the minutes of January 31, 2003;
seconded by Senator Schroeder. Motion carried.



Motion by Senator Schroeder to approve the gubernatorial appointment of
Jim Kempton to the Pacific Northwest Electric Power and Conservation
Planning Council; seconded by Senator Cameron. Motion carried.



David Mabe, Administrator of Water Quality Programs, Department of
Environmental Quality, introduced RS 12894 regarding the powers and
duties associated with pollutant trading requirements. The purpose of the
change in the statute is to assure that Water Quality Standards don’t grow
unnecessarily, but that a process is maintained for Legislative oversight of
the rules and regulations to be adopted. In regard to pollution trading,
Department of Environmental Quality, along with local input, develops
basin reports to try and determine how trading should take place in the
basin. On the Boise River and the Mid-Snake River, trading programs
have been developed to enable local interests to operate a trading program.
This could also provide assistance to individuals to comply with permit
limits or Total Maximum Daily Load limits when necessary. He
expressed concern about having to adopt the extensive plans into the rules,
verbatim, Department of Environmental Quality would prefer to use a
process where they would be adopted by reference. This would save
printing and would require one page stating the reference. This makes the
reference a part of the rules; they are processed through the rule making
process. Publication and public comment and considerations of the rule by
the Legislature along with a copy of the report all occur. After approval,
they would become part of the rules in the water quality program. Upon
inquiry, Mabe stated there would be a chapter for each new basin. All the
pollution trading requirements would be in one place and not scattered
through the water quality standards. He noted the statute change would
allow Department of Environmental Quality to adopt the plans or chapters
by reference. Without specific statutory authority, the voluminous
documentation would need to be published at a significant cost. $56.00 a
page is the cost for the initial filing and then there is an annual charge of
$51.00 to maintain the administrative code.



Senator Cameron inquired about the practice of incorporation of a
document by reference. He stated the document and record needs to refer
to a specific date. Mabe replied that it was necessary to adopt a specific
document and the document could not be changed without changing the
reference. If the document is to be modified, it would be necessary to go
through the rule making process, providing the public an opportunity to
participate. Mabe noted pollution trading takes a willing buyer/willing
seller for the process to work. The pollution trading documents are the
guidance by which to operate and the value on the pounds of pollutants
being traded.



Motion by Senator Little to print RS 12894; seconded by Senator Brandt.

Motion carried by voice vote with Senators Williams, Burtenshaw and
Pearce requesting to be noted as voting “No.”



Mabe then explained RS 12925 would allow the Department of
Environmental Quality to assume the National Pollutant Discharge
Elimination System (NPDES) program from the Environmental Protection
Agency. The department of Environmental Quality has spent two years
coordinating with various interested parties to develop a consensus that the
state should pursue primacy. He noted there are some parties that have not
been able to review the proposed legislation in the essence of legislative
time. He emphasized, because of the time constraints, it is possible that
changes will need to be made. He stated that the Idaho Conservation
League had not seen the latest draft of the proposed legislation, even
though they have participated. Generally the participating group believes
that the state should be pursuing primacy.



He indicated that those participating in the group should have one more
opportunity to review the proposed legislation. Reports of the activities,
statements, documentation will be provided to the Committee after the
meeting. He stated the Idaho Association of Commerce and Industry and
the Idaho Associations of Cities were participants in the process. The
majority of the stakeholders have point source discharges or specific
discharges into live water. He noted some animal feeding permits, dairies
and aqua-culture are also involved. He stated all the parties involved need
the opportunity to review the proposed legislation.



Passage of the legislation would not be the last opportunity for the
Legislature to review. This is only a preliminary step, and no funding is
now required. Final legislation will have to be considered next year, and
that is when funds will be required. State primacy requires rule making
and federal approval from EPA Region 10 and will also be subject to
consultation under the Endangered Species Act. He noted there are two
sections in the proposed legislation which require Legislative approval of
any memorandum of understanding executed by the Director of the
Department of Environmental Quality. If the proposed legislation passes,
the Department of Environmental Quality will complete the negotiated
rules, proceed through the negotiations with the Environmental Protection
Agency, National Marine Fisheries Service and Fish and Wildlife Service
to determine if a successful consultation can be accomplished. At that
time, the Department of Environmental Quality would need Legislative
approval of the program. Passage of this legislation will make changes in
the Department of Environmental Quality’s authority and indicate if the
Department of Environmental Quality should pursue primacy.



One benefit of state primacy is that it will allow the state to determine who
needs a permit or when a permit should be issued. He noted the
Environmental Protection Agency is unable to promptly process those
permits or changes or amendments to a permit, which could have a
significant economic impact on stakeholders’ operations. Primacy allows
the Department of Environmental Quality to deal with permits at the state
level. The Decision Analysis Report 2 (abbreviated) by the Department of
Environmental Quality, December 2002, is attached.

Motion by Senator Schroeder to print RS 12925; motion dies for lack of
second. Lacking further action, RS 12925 is pending in the committee.



Marty Peterson, University of Idaho, explained RS 12967 replaces S 1057
which was introduced in the committee and sent to print. He explained
due to a mixup in communications he did not receive proposed changes
from the director of the Idaho Geological Survey at the University of
Idaho. RS 12967 makes the proposed changes.



Motion by Senator Schroeder to send RS 12967 to print; seconded by
Senator Brandt. Motion carried.

There being no further matters to come before the committee, the meeting
was adjourned at 2:40 p.m.






DATE: February 12, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, Kennedy
.
The meeting was called to order by Chairman Noh at 1:40 P.M.



Rick Collignon, Director, Department of Parks and Recreation, introduced
to the Committee the Gubernatorial candidates: Latham Williams of Sun
Valley, Idaho and Randal F. Rice of Moscow, Idaho to the Park and
Recreation Board.



Randal Rice informed the Committee of his educational background,
stating he graduated from Lewiston High School and graduated from the
University of Idaho. He was previously employed by the Idaho
Department of Parks and Recreation in the early 1970’s. Since September
of 1973, he has been the Director of Parks and Recreation for the City of
Moscow.



Latham Williams informed the Committee of his educational background,
stating he has a degree in civil engineering from University of California-Berkeley and his master’s degree in real estate from MIT (Massachusetts
Institute of Technology). He is currently President of the Sun Valley City
Council and President of Greenfield Properties. He has been involved in
real estate development since 1988. He is President-elect for the
Ketchum-Sun Valley Rotary Club, police commissioner for Sun Valley
and has served as a volunteer firefighter for Ketchum. He and his family
are very active recreationalist. Upon inquiry from Chairman Noh,
Williams stated his emphasis on the Board will be concerning ATV issues.
He reported the experimental project in the Challis area is an excellent
opportunity to determine if the same type of project can be used elsewhere
in the state. He noted the enforcement issue connected with the issue will
need to be addressed. He would like to have personnel from the
Department of Parks and Recreation be trained as peace officers and
authorized to issue misdemeanor citations. Senator Stennett noted the
opposition of the Sheriffs’ Association and the reservation by the Blaine
County Sheriff to enforcement by the Department of Parks and Recreation
through a memorandum of understanding between entities.

Upon inquiry from Senator Stennett, Williams noted his mailing address is
Ketchum, but he actually resides in Sun Valley.

Chairman Noh provided to the Committee copies of his recent
correspondence with volunteer reviewers relating to the
WestRock/Tamarack state leases. (Copies are attached.) Winston
Wiggins, Director, Department of Lands, provided a copy of the lease,
dated June 11, 2002, between the Idaho State Board of Land
Commissioners and WestRock Associates, LLC. The original is on file in
the office of the Department of Lands. Chairman Noh stated the
Committee is the last stop in connection with the $1,300,000,000 project
which is dependent upon the approval of a forty-nine-year lease of state
lands. He noted the Committee has a responsibility of diligence in regard
to the lease and the endowment and taxpayers are protected from potential
liability. Noh has consulted with representatives from the Governor’s
office, Department of Lands, Deputy Attorney General responsible for the
lease, and Clive Strong, Deputy Attorney General.



The three reviewers of the lease, Peter Johnson, former Senator Bill
Ringert and former Senator John Hansen, have submitted their responses.
(Copies are attached.) Noh noted the Deputy Attorney General and the
Land Board have constructed a very tight contract, but there have been
some concerns raised. One area of concern is the financing for the project
is now going to be the presale of real estate. Through the project, the state
of Idaho and the Legislature should not be perceived by potential investors
as given the good housekeeping seal of sound investment in the approval
of the lease. Noh noted the lease would be used in the sale of potentially
valuable real estate. He expressed concern that if investments are lost
there is no way to come back on the state with a liability or concern issue
of misrepresentation.

Another area of importance pointed out by the three reviewers is assurance
that funds from the sale of real estate are committed to meet the
requirements of the contract, the construction proposed and the obligations
for the state of Idaho. It has been recommended that the funds be placed
into an escrow account to assure the funds are not spent elsewhere.



Chairman Noh informed the Committee that the Land Board has received
a copy of these letters from the reviewers. Based upon the information
and questions from the Committee, questions will be composed to the
Land Board. The Land Board has expressed a willingness to respond to
those concerns. The information will be available to the Committee before
proceeding with the legislation. Upon inquiry, Chairman Noh explained
there are two pieces of legislation because the lease concerns two types of
endowments. One is public school endowment land and the other
nonpublic school endowment lands. Noh noted WestRock
representatives and Ken McClure have been most cooperative in providing
any information the Committee may need.



Ken McClure, representative for West Rock/Tamarack, informed the
Committee they will be available at any time to answer any questions on
the project. He noted that almost the entire project is located on private
ground. The lease is for land for the ski hill and for two and one-half
holes of the golf course.






Kevin Beaton attorney, of Stoel, Rives of Boise, (previously Deputy
Attorney General for DEQ) provided educational information to the
committee on the Clean Water Act. The history of the CWA goes back
thirty years and is comprehensive and complicated a regulatory federal
statute. He noted it is implemented at both the federal and state level. The
implementation and enforcement of CWA by the Environmental
Protection Agency have placed an increasing emphasis on water quality
and the enforcement of state water quality laws. In an effort to achieve
water quality standards, the types of pollution sources regulated under
CWA have increased significantly. The nonpoint source activities were
left to the state for regulation. He noted there has been significant
pressure to regulate the nonpoint source activities. In conjunction with
this has been an increasing interaction between the Endangered Species
Act and the Clean Water Act. Now many federal and state agencies are
involved in the regulations under the CWA.



The CWA was passed in 1972 pertains to all of the surface water in the
United States. The goal was to attain feasible or sizable water quality
standards. Additionally, the federal government and the states were to
work together to eliminate all sources of pollution by 1985. It is up to the
states to develop water quality standards, as evidenced by the criteria
developed by DEQ. Congress provided the option to the states for control
of nonpoint sources. The types of activities that were traditionally
nonpoint sources are narrowing significantly through regulations and court
cases. He noted that confined animal feed operations were historically
treated as nonpoint sources, but the EPA is now regulating them as point
sources which require a NODES permit. Additionally, the EPA is now
requiring a permit for construction activities for an acre or more on any
time of construction site. Previously a permit was required for only five
acre sites. He stated NODES permits issued by the EPA; most states have
assumed primacy under the program and issue their own permits. The
state of Idaho does not have primacy. He noted movement is toward point
sources from nonpoint sources. An area of concern would be irrigation
return flow, because the CWA specifically that irrigation return flows are
not point sources and the EPA cannot require an irrigation district to get a
point source permit at the end of the return flow. Last year, the Ninth
Circuit Court of Appeals determined that an application of herbicides by
an irrigation district into an irrigation canal required a point source permit.

Senator Little moved to approve the minutes of January 24, 2003;
seconded by Senator Brandt. Motion carried.



Senator Cameron moved to approve the minutes of February 3, 2003;
seconded by Senator Kennedy. Motion carried.






DATE: February 14, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Senators Cameron, Schroeder, Brandt, Little, Stennett and
Kennedy
MEMBERS
ABSENT/

EXCUSED:

Vice Chairman Pearce, Senators Burtenshaw and Williams absent.
The meeting was called to order by Chairman Noh at 1:45 p.m.



Motion by Senator Schroeder to recommend the gubernatorial
appointment of Randal F. Rice to the Park and Recreation Board;
seconded by Senator Cameron. Motion carried.



Motion by Senator Cameron to recommend the gubernatorial appointment
of Latham Williams to the Park and Recreation Board; seconded by
Senator Little. Motion carried.



Senator Keough explained S 1056 would reduce the minimum number of
meetings to be held annually by the Board of Scaling Practices. She said
presently the Board does not have sufficient issues to hold meetings more
than twice a year. If there are significant issues, the Board could still hold
a meeting. George Bacon, Department of Lands, indicated the
department’s support for the legislation.



Motion by Senator Brandt to send S 1056 to the floor with a do pass
recommendation; seconded by Senator Little. Motion carried.



Chairman Noh explained S 1106 reflects the organizational changes at the
University of Idaho establishing the Idaho Geological Survey. Motion by
Senator Little to send S 1106 to the floor with a do pass recommendation;
seconded by Senator Brandt. Motion carried.



Honorable Roger Burdick, District Judge, Snake River Basin
Adjudication, provided fact sheets to the Committee on the SRBA. (A
copy is attached.) He informed the committee of items of particular
interest, noting the court, and DWR have a very good, cooperative
working relationship. He noted this has enabled the court and the
department to make significant progress.



The SRBA Digest is almost completed which will enable a searchable
database of all SRBA decisions. This will be free of charge to all judges.
The database will be available to others on a fee basis. He noted the
efforts to enable access statewide to SRBA proceedings and decisions.
Additional measures are to hold scheduled hearings at locations
convenient to the claimants and will hold monthly information meetings at
various locations throughout the state. Judge Burdick noted they have
received favorable comments on the monthly visits which have resulted in
the development of positive public relations. Due to budget constraints,
off-site meetings will be limited to March 11 in Blackfoot, April 10 in
Orofino, and May 19 in Salmon.



Federal reserved water rights are always issues of concern. The Hells
Canyon and Wild, Scenic Rivers rights are being mediated by Merlyn
Clark. Clark has reported good progress and results until the end. Burdick
has given Clark another month to report back. There are technical issues
that the federal government, as well as the state of Idaho, wish to review.
Clark is optimistic in those two areas. Burdick noted those issues are
quantification issues. The Idaho Supreme Court ruled that there were
federal reserve water rights for wild and scenic rivers and the Hells
Canyon area. The Hells Canyon area focuses on Rapid River for fish
migration. The Scenic Rivers is a significant group of rivers throughout
Idaho that have been designated by the federal government as “Wild and
Scenic Rivers.” The only issue before the SRBA is to determine the
minimum amount of water needed for the federal reserve water rights,
known as “quantification.”



The Nez Perce’s in-stream flow claims are on appeal to the Idaho Supreme
Court. He noted the Supreme Court has been receiving progress reports
throughout the mediation by Profession McGovern, Duke University and
Stanford University, who is the mediator. McGovern is not hopeful of a
settlement in this case. Burdick noted the state of Idaho has put forth
significant efforts for a successful mediation of the issues. There are
collateral issues that interact with the main issue. If this is not settled and
goes to trial, a trial will take four to six months to complete. Unless there
is a mediated settlement, the court process could take up to five or six
years. Burdick stated a few extremists are preventing a settlement of the
case.



Upon inquiry, Burdick stated there is a split of case authority throughout
the United States. Major states have ruled that someone, who is not a
party to the stipulation, cannot be bound by the stipulation. Idaho has tried
to encourage participation by due process. Then when an individual opts
out of the mediation, they are then on notice that the mediated settlement
will be binding on all. He noted this process was used in Basin 34 and
was successful. Despite signing off on the settlement, three individuals
changed their minds. After a court hearing, they were held to the
settlement.



Burdick explained three individuals from Arco petitioned the SRBA that
the Department of Water Resources was not appropriately administering
the intent of the settlement agreement. After a court hearing, the court
ruled that the settlement was not ambiguous. The parties can proceed
through the Administrative Procedures Act for DWR hearings and to the
district court if necessary.



Burdick stated Sage Willow is an important case to determine whether
there had been a forfeiture.



In the future, Burdick stated the A & B Irrigation District case addresses
the issue of the “amnesty statute” as it pertains to the use of waste water
for enlarging irrigated acreage.



Basins 37, 36 and 57 are the first three basins considered in the SRBA.
The three basins are almost complete with the remaining issues concerning
late claims.



The off-reservation claims for springs and fountains, pursuant to the 1863
treaty, with the Nez Perce Indians, is a significant issue. He noted the
claims are on private land. The interpretation of treaty language is under
court advisement.



In Basin 29, the water right claims of the Sho-Ban Indian Reservation
have been settled, but there are water rights on former reservation land to
be determined. These claims, known as “Walton Rights” are the first time
this issue is before the SRBA.



The scope of federal reserve water rights, pursuant to Public Water
Reserve 107, was determined by SRBA. The court is currently holding
hearings to allow the federal government to prove their claims. He noted
this involves several thousands of PWR stock water claims.



Two cases that have been appealed to the Idaho Supreme Court are LU
Ranches and Nez Perce in-stream flow claims. LU Ranches has requested
the partial decrees for water decreed to the United States for grazing
allotments be set aside. They challenge the constitutionality of the notice
procedures in the SRBA. Should LU Ranches prevail, the entire SRBA
could be in question.



Judge Burdick anticipates Basin 63, the Boise area, will be contested
because of the number of prior decrees and administrative transfers in the
development of irrigation lands.



Senator Stennett then explained S 1098 will eliminate the practice of
displaying on the point-of-sale machines the social security number of an
applicant for a license through the Department of Fish and Game. He
expressed his concern for the lack of privacy and invasion of private
information made readily available to anyone operating a POS machine.



Steve Barton, Department of Fish and Game, explained to the committee
the logistics of the information and problems associated with making the
proposed change. After committee discussion, motion by Senator Stennett
for unanimous consent to hold S 1098 for one week to enable negotiations
in an attempt to eliminate the need for legislation. S 1098 will be held in
Committee for one week.



Chairman Noh expressed the Committee’s appreciation to Toby Rood for
his assistance and diligence as a Page during the first portion of the
session. He then introduced Jovina Bigelow of Rigby, who will be the
Page for the Committee for the last half of the session.



There being no further matters to come before the Committee, the meeting
was adjourned at 3:00 p.m.






DATE: February 17, 2003
TIME: 2:00 PM
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, and Kennedy
The meeting was called to order by Chairman Noh at 2:00 PM.



Chairman Noh informed the Committee he would be making his
Chairman’s recommendations in regard to natural resource agency budgets
to Joint Finance Appropriations Committee on Tuesday, February 18. He
intends to discuss agency roles in the economy and an assessment of
where they are. Additionally, he intends to talk about importance of the
cooperative research operations to the economy. Noh will accept
comments and recommendations from committee members.



Senator Schroeder suggested the Chairman request Joint Finance
Appropriations Committee to defund the predator count contract through
the Department of Fish and Game. Chairman Noh will provide a copy of
Senator Schroeder’s letter to Joint Finance Appropriations Committee.



Senator Williams stated he wanted to be certain the Caine Center would be
discussed as the center relates to wildlife and the veterinary portion.



Chairman Noh noted the invitation from the WestRock/Tamarack
representatives for next Saturday, February 22. He has asked the
Secretary of State if there is anything the committee needs to report for
those that participate in the tour.



Jim Caswell, Administrator, Office of Species Conservation, informed the
Committee about the depredation issue. He provided a handout to the
Committee. A copy is attached to the minutes. He reminded the
Committee of the federal 2001 fiscal year wherein Senator Craig and the
Idaho Cattle Association requested appropriation for $100,000 for
depredation which is not covered through the Defenders of Wildlife
Program. In December, 2000, Office of Species Conservation was asked
to manage the funds and coordinate with the Fish and Wildlife Service to
develop an equitable program. In May, 2001, an cooperative agreement
was signed between Office of Species Conservation and Fish and Wildlife
Service. The funding was subsequently received by Office of Species
Conservation.



An advisory group was developed included the Defenders of Wildlife
Program, Fish and Wildlife Service, three ranchers from Stanley-Challis
area, and Office of Species Conservation. The group has been working for
the past eighteen months in an attempt to develop a program for the
dispersal of funds in a fair, adequate and accountability method. Sara
Braasch, Idaho Cattle Association, assisted Office of Species Conservation
in clarifying an agreement. The agreement is set forth in the attached
handout as “Idaho Wolf Depredation Compensation Plan”, as of February
3, 2003. Counties throughout the state were informed and agreed to
participate. A board was created and a memorandum of agreement was
signed between Office of Species Conservation, the state, the county
commissioners. The county commissioners will oversee the depredation
compensation plan. The Idaho Cattle Association will make the necessary
contact with producers through a bulk mailing this week. A news release
will also be issued in this regard.



Once the fund is depleted, there is no guarantee of additional funding. He
noted additional funding has been requested for 2003. The funding has
been passed by Congress, but the amount is not the amount requested.
Caswell indicated there may be some minimum funding for next season
for the program.



The proposed guidelines recognize three types of losses plus approaches
for compensation. He noted livestock is defined as set forth in the Rule
10j. Kills would be confirmed based upon field examination; as would
probably kills. There could be unconfirmed or probable kills, but with
wolves in the area. Additionally, proactive programs have been
implemented to reduce wolf-livestock interactions. Confirmed losses are
paid at one hundred percent and fifty percent of market value for probable
losses. Compensation would be prorated among filed claims. The criteria
would be actual market value as evidenced by actual sales slips.
Compensation payments would be based on a blended price per hundred
weight for steers and heifers or calves lost. Additionally, the price per
hundred weight for market cows and bulls or dollars per hundred weight
for lambs or ewes lost would be used. Caswell noted the compensation
would be based on site specific information provided by the applicant. In
instances of insufficient, reliable evidence to determine losses, a multiplier
would be used. The actual multiplier would be determined by the board
on a case-by-case basis. Caswell further stated that compensation will not
be automatic and the board’s determination will be final.



Upon inquiry, Caswell stated the funds are appropriated by Congress to
the Fish and Wildlife Service which has a cooperative agreement with the
Office of Species Conservation. There is then an agreement between
Office of Species Conservation and the counties for the implementation of
the program. Caswell noted that Fish and Wildlife Service serves on the
review board while Office of Species Conservation oversees the program.
The program was presented to Joint Finance Appropriations Committee in
2001 for the spending authority. The funding has always been in Office of
Species Conservation’s budget. Funding concerns and audits is the
responsibility of Fish and Wildlife Service. Caswell noted the Board has
broad discretion to under or over compensate dependent upon
documentation for three years, on and off counts, show the normal death
loss, confirmed wolves on site or probable. The counties are represented
by the six counties located in the center of the wolf reintroduction area.
The representation by counties could change as set forth in the
memorandum of agreement.



Upon inquiry, Caswell clarified to the Committee that the federal funds
were appropriated in fiscal 2001, but it took to May, 2001, for the transfer
to Fish and Wildlife Service and to Office of Species Conservation
through the agreement. The funding spending authority was processed
through Joint Finance Appropriations Committee in 2001 under the
understanding that the federal funds would be coming. The funds have
been in their budget since that time, but has been unspent.



Dr. Greg Schildwachter, Office of Species Conservation, informed the
Committee on the Governor’s strategy for wolf delisting. He provided to
the Committee a proposed draft, for discussion purposes only, of the
proposed strategy. In explaining the proposed time line, he noted today
the Endangered Species Act, special rule 10j, finalized in 1994 is
controlling. Under the authority of the rule, the authorized agreements and
permitting have enabled delegation of responsibility under Endangered
Species Act for on the ground management to the Nez Perce Tribe. The
document is a contract between the federal government and the Tribe to
carry out the field work. There is also a permit to the Wildlife Services
Agency, Department of Agriculture, for wolf control which is
accomplished in conjunction with the Fish and Wildlife Service.
Schildwachter noted the three documents control the program: the 10j rule
(a federal regulation), cooperative agreement (essentially a contract)
between the federal government and the Tribe, and a permit under
Endangered Species Act authorizing Wildlife Services. The Governor’s
proposal is to expedite delisting while protecting Idaho’s interest. The 10j
rule would be amended by the insertion Idaho’s wolf management plan.
In referring to the handout copy of the federal register, volume 59, No.
224, page 60281, he noted the maps of Idaho, Wyoming and Montana
depicting the area impacted by the 10j rule. The proposed amendment to
the 10j rule would make the Idaho Wolf Management Plan the rule in that
area. An identical amendment would enable Wyoming and Montana to
incorporate their wolf management plan when it is adopted. He informed
the Committee the Idaho wolf plan was to be evaluated with the other two
states, but the proposed amendment would be implemented until the three
state plans are adopted. This is an interim step to provide an avenue for the state to proceed.



Chairman Noh noted according to the maps, the portion of Idaho, included
with Montana and Wyoming, would not be affected by the proposed
amendment. Schildwachter noted this would need to be considered by
legal counsel because it is the intention that Idaho’s wolf plan would
encompass the entire state of Idaho.



There being no further matters to come before the Committee, the meeting
was adjourned at






DATE: February 19, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, Kennedy
The meeting was called to order by Chairman Noh at 1:40 p.m.
MINUTES: Senator Kennedy moved the minutes of January 28, 2003, be approved;
seconded by Senator Stennett. Motion carried.



Ken McClure, representing WestRock/Tamarack LLC, introduced David Scott,
Vice President, Commercial Operations, WestRock/Tamarack Associates.
Scott made a power point presentation to the Committee. He stated
WestRock/Tamarack is leasing more than 2100 acres in Valley County in two
separate parcels from the state. One parcel of sixty acres is designated part of
the golf course, while the second parcel is the ski hill. The present lease is for
ten years with an extension to twenty-five years. There is then an option for
renewal for an additional twenty-four years, if the Legislature amends the
statutes to provide for a forty-nine-year lease. Scott noted a resort of this
nature is quite costly. In order to fund and finance an infrastructure, a ten-year
lease is not sufficient. The cost is estimated at more than $1,000,000,000 and
is an ambitious undertaking. WestRock/Tamarack has paid $400,000 at the
time of the lease signing and will pay $600,000 when the lease term is
extended. Beginning the fifth year of the lease, WestRock/Tamarack will pay
$250,000 annually, with annual inflation adjustments. He noted the state has
the option, beginning in 2013, to convert the lease payment to a percentage of
annual gross receipts from the leased property or whichever is greater. Gross
receipts would include ski ticket revenues, ski and golf lessons, golf course fees
and equipment rental and ancillary businesses located on the leased property.
Scott informed the Committee there is a set percentage rate set forth in the
lease which begins in 2013 to the end of the lease.



Preconstruction, safety, environmental, indemnifications, taxes, assignment,
sublease, mortgage and termination requirements are more fully set forth in the
lease which he discussed with the Committee. In addition to lease
requirements, there are environmental mitigation measures to meet various
permit conditions and agreements with governmental agencies and
organizations. A list of the additional requirements is attached to the minutes of
the Committee.



An additional handout provided by WestRock/Tamarack provides an
assessment of risk for the state if the lease extension is approved by the
Legislature is attached to the Committee Minutes.



He noted some of the benefits to the state and county is the construction of a
seven-mile pipeline to the sewage facilities, which will serve the West Mountain
area at the north end of Lake Cascade. This is anticipated to reduce pollution
to the lake from existing septic tanks. WestRock/Tamarack has an agreement
with the Idaho Department of Environmental Quality for the installation of
monitoring stations for water quantity and water quality. The monitoring
information is provided to DEQ on a regular basis. Additionally,
WestRock/Tamarack will obtain DEW approval of an air quality monitoring
system and will contribute $50,000 annually for five years to DEQ to offset
costs for staffing and administration in regards to the air and water quality
monitoring at the site.



Stream channels have been restored pursuant to agreements with various
federal and state agencies. Additionally, the riparian habitat in Rock Creek and
Poison Creek has been improved for spawning habitat and Lake Cascade
water quality. He noted there is a nature preserve in the center of the site,
which was an eagle’s nest with a nesting pair of eagles until a micro burst storm
blew down the tree. They tried to restore three trees in the area in an effort to
bring the eagles back, but they did not nest there last year.



A conservation easement on thirteen acres of WestRock/Tamarack real
property and $10,000 to the Idaho Foundation for Parks and Land has been
paid for riparian habitat for Rock Creek and Poison Creek.



In connection to Valley County, WestRock/Tamarack will be responsible for 30
percent of the cost for the improvement of the main road (Roseberry Road)
between Highway 55 and the resort. $150,000 will be paid to the County upon
approval of the project. Up to $600,000 would be paid to cover costs of
improvements to the intersection of Highway 55 and Roseberry Road. They
have received their PUD permit from the Valley County. The 404 permit was
received and completed last summer. The county has given approval for a full
buildup through the sixteen-year projection. The water rights have been
granted. The only thing pending at this time is the forty-nine-year lease
extension.



To the Cascade School District, regular payments will be made to cover the
costs of new students attributable to the resort. $325,000 will be paid for new
and upgraded school facilities. He noted $65,000 would be paid initially.



For Valley County services, $525,000 will be paid within thirty days of beginning
construction with $175,000 in each of the next two years. A fire and emergency
station will be completed by the third year and $10,000 will be paid for each of
three years to emergency services.



The Committee was shown pictures of some of the buildings on the site at the
present time. The yurts are used for cross country skiing and for presentations
to prospective real estate buyers. Half and full day tours are available at the
site now. Cross country skiing is available on Friday, Saturday, Sunday and
Monday. There has been good reception to the cross country skiing course,
which is approximately twenty kilometers.



Economic predictions, based on a full build out, were made by independent
sources and verified by Valley County. Fourteen hundred plus jobs will be
available directly through the resort. The secondary jobs are predicted to be
approximately double.



Senator Burtenshaw inquired as to the status of the grazing lease.

Jay Biladeau, Department of Lands, stated the leasing right will cease because
of the development. Certainly if the Department of Lands has any other
unleased lands that would be suitable for the grazing lease, the department
would be willing to negotiate. Biladeau stated the grazing lease holder has not
asked at this time. The lease is in good standing but will be terminated
pursuant to provisions in the lease which allows the state to terminate the lease
if the ground is put to a higher financial use.



Upon inquiry from Senator Williams, Scott stated $48,000,000 has been
invested and paid out to date, with additional ongoing funding. He noted that
figure represents expenditures before the current ownership which began two
and one-half years. The private land at the bottom has been purchased and
the permitting process has been expensive and extensive. Now the costs
pertain to marketing. He stated the current owners are people of financial
means who could continue to do this for some time in the future. They are
definitely interested investors.



Senator Kennedy inquired as to the owners of the limited liability company.
Scott reported the two major owners are Jean Pierre Boespflug, an American
citizen, educated at Stanford, and originally from France. Alfredo Miguel Afif is
the other major owner. He is a second generation industrialist in Mexico with a
variety of companies in textile, automobile parts and aerospace. His company
represents Bell Helicopters, a division of Boeing in Central America.
Additionally there is a group of investors: Don Weilmunster, an Idahoan; Dan
Skillen, a former senior executive TRW; Andres Conesa, Mexican national with
a large construction company. Scott confirmed that Weilmunster owned some
of the land adjacent to the project which was purchased from Weilmunster
approximately one and one-half years ago for cash. He still owns some
property which is under option for a possible second golf course.



Upon further inquiry, the current assets of the limited liability company will be
provided to the Committee. Financial statements have been provided to the
Department of Lands in connection with the lease negotiations. In addition,
audited statements of the company have also been provided.



Upon inquiry, Scott stated they have chosen to not put housing, in general,
around the golf course. The golf course will remain open and natural. He is not
aware of any structures on the golf course. On the ski hill, two restaurants are
projected, along with the ski lift, structures at the top and bottom to house the
lifts, and a snowmobile garage are proposed.



Senator Kennedy inquired as to the indemnification for the state by the
company and whether payment and completion bonds have been procured. He
noted the lease provides for two methods for proof of financial stability. The
provision of executed contracts necessary for the completion of the project
along with performance and payment bonds insuring complete payment and
completion is set forth in the lease. The alternative provision is the payment of
cash and irrevocable loan commitments for the construction. Senator Kennedy
stated the option of either provision rests with the limited liability company. Ken
McClure stated that the option choice is up to the company, not the state.

McClure noted there were several lawyers involved in the negotiation of the
lease. His law firm and Steven Millemann of McCall were involved in the
negotiations. Upon further inquiry, McClure noted there is a one term renewal
for twenty-four years and the terms will be the same as the first twenty-five
years.



Senator Stennett inquired as to the status of the reclamation plan and the
requirement of a sufficient bond equal to the reasonable estimate of the cost for
reclamation. Biladeau stated there is not a reclamation bond at this stage, but
it is required for the phase one construction. The amount of the reclamation
bond will be determined by the Department of Lands.



The absence of an attached business plan to the lease was noted by Senator
Stennett. Biladeau stated he did not recall the prediction of skier days. Scott
stated the projection for the initial stages is less than 100,000 skier days. The
area is not solely a ski area, but an area in which to live and for recreation.
Biladeau stated the interest of the Department was primarily on reducing the
risk through the lease and to offset any kind of risk. Senator Stennett inquired
as to the sufficiency of the reclamation bond. Biladeau stated there will be ski
lifts, two restaurants, a reservoir and a couple of out type buildings. Biladeau
said the state will require a reclamation bond to cover the costs for removal and
restoration of the land to as close as possible a natural state and plant it in
trees. Stennett noted the statutes presently require a $230 per acre maximum
bond.



Upon inquiry from Senator Pearce, Biladeau stated one reservoir would be
about 20 acres. Pearce noted most of the water rights in the state are
appropriated. The water right is coming from the developer. Scott stated the
purpose of the pond is to provide a storage area for snow making and the water
would be pumped out of the valley up to the lined pond.



Chairman Noh inquired about the funding switch from Bank of America to pre-sales of real estate. Scott stated there was an exclusive arrangement with
Bank of America Securities, formerly Montgomery Securities, as the investment
banker. Bank of America was to obtain investors for the project. He noted they
encountered investors who did not want to deal with the bank. It was in the
best interest of the project to end the relationship which was ended the first of
September. It was an amicable separation with the bank agreeing to release
them from the contract. Scott additionally stated they are reviewing several
options. One would be to sell lots, allow people to make a reservation deposit
on the lots, and after the final platting they would select their lots and complete
the purchase. He noted there are still many avenues for investment money in
the limited liability company.



Upon inquiry from Chairman Noh, Scott stated he was not aware of any
shareholders with personal guarantees as it relates to the money invested in
the project or in the corporation. There is a line of credit at the Bank of
America. The previous loan with Bank of America has been paid off as they
desire to keep the property unencumbered.



McClure informed the Committee, this type of project under a limited liability
company is under the purview of the securities laws.



Upon inquiry, McClure stated he and his lobby associate, Molly Creswell,
represent Tamarack. He stated there should be no contact by anyone else
from the company with respect to the project. If Pat Sullivan or anyone has
contacted you, they would be representing Washington Group, the contractor
for the project.



Upon inquiry from Senator Stennett, Kent Nelson, Deputy Attorney General,
Contracts and Law Division, stated the goal of the lease was to make certain
there was a liability shield that could not be penetrated. He noted it would be a
very difficult process because the indemnification section is only one level of
protection. He noted the Tort Claim Act would be applicable for any
catastrophic claims. McClure noted the provision in the lease, article nine,
which requires the company to maintain $25,000,000 in comprehensive general
liability insurance.



Scott explained to the Committee that skier days represents the number of
skiers in a season. In sixteen years, a projection for Tamarack is 375,000 skier
days. He noted Snow Engineering was the company providing projection
estimates to the company.



Upon inquiry from Senator Kennedy, Scott replied there are currently five
individuals who have put down reservations on lots in the $300,000 to $500,000
range. Potential real estate buyers are visiting the site on a daily basis. For the
first offering, lots will be in that price range. There will be lots in later offerings
that will not be in that price range. He noted these are single family lots. The
types of properties included in the 2043 living units are condominiums,
fractionals, town homes and single family along with 200 units of employee
housing on site in the village. Upon further inquiry, Scott stated the deposits
are fully refundable and are being placed in an escrow.



There being no further matters to come before Committee, the meeting was
adjourned at 3:05 p.m.






DATE: February 21, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, Kennedy
The meeting was called to order by Chairman Noh at 1:40 P.M.
S 1098 Senator Stennett requested S 1098 be withdrawn as he has been assured by
Gtec and the Department of Fish and Game that implementation of the
ability to prohibit the display of social security numbers on the point-of-sale devices will be instituted by July 1, 2003. S 1098 withdrawn at the
request of the sponsor.
S 1059 Steve Huffaker, Director, Department of Fish and Game, explained S 1059
would authorize the Department to enter into reciprocal licensure
agreements with federally recognized Indian tribes possessing reservation
lands within the state. The reciprocal agreements would allow persons to
hunt, fish or trap wildlife in designated areas. The Department, Indian
Tribes, and the public will benefit from the reduction of dual licensing
authorities. He informed the Committee that in 1994 the Department first
entered into a reciprocal agreement with the Nez Perce Indians regarding
fishing licenses. This was to address the problem of citizens not being
able to identify Indian lands from other private lands for fishing and
hunting purposes and citizens were unable to know which license they
should properly have to fish or hunt.
Motion Motion by Senator Brandt to hold S 1059 in committee; seconded by
Senator Williams.
Substitute
Motion
Substitute motion by Senator Schroeder to send S 1059 to the floor with a
do pass recommendation; seconded by Senator Kennedy.
Roll Call Vote Roll call vote on the substitute motion:

Ayes: Burtenshaw, Kennedy, Pearce, Schroeder, Stennett and Nah

Nays: Brandt and Williams

Absent: Cameron and Little

S 1100 Norm Semanko, Idaho Water Users Association, explained S 1100 which
is legislation to define, encourage and support water conservation
practices. Additionally, the legislation provides that water conservation
does not subject water rights to forfeiture.
Motion Motion by Senator Burtenshaw to send S 1100 to the floor with a do pass
recommendation; seconded by Senator Cameron. Motion carried on voice
vote.
S 1058 Karl Dreher, Director, Department of Water Resources, explained S 1058.
The legislation is to increase the fee to $100 for filing a protest against the
approval of an application to appropriate water or against the approval of a
change to an existing water right initiating a contested case. He stated the
sole purpose of the proposed legislation is to provide equity. The fees for
applicants were raised in 2000 to generate revenue for the escalating costs
associated with processing the applications. The protest fee was not
adjusted in 2000, but should have been as a matter of equity. He noted the
amount required by an applicant could be considerable more than the
proposed $100 fee for filing of a protest. The history for the protest fee
began in 1994 with a $25 fee imposed and has not changed.

Harvey Walker, Walker Ranches, Butte County, stated his opposition to S
1058 because he thought the legislation would place an economical burden
for filing protests.
Mitchell Sorensen, Sorensen Crop and Livestock, Basin 34, Big Lost
River, expressed his opposition to S 1058, stated he has been farming for
about twenty-five years. Twenty years ago, he had several protests filed
against him. The $25 fee has slowed the filing of protests. The need for
him to make applications for transfer has diminished. After having gone
through the process of having protests filed against his applications, the
process is meaningful because it helps educate the Department and the
local interests and concerns, as well as the individual water users. He
noted, often, much of the protest is emotional. He expressed concern
whether raising the fee was the correct remedy versus better education.
He cautioned against pricing the filing of a protest out of the due process
range of individuals.
Della Johnson, Nampa, expressed her opposition to S 1100, stating it
would be one more attempt to exclude the citizens from filing a protest.
She stated the legislation is an attempt to exclude citizens from
participation in the democratic process. In all other applications for
change (planning and zoning), such as appeals to the commissioners, the
public is allowed to present their views without having to pay for the right
to attempt to protect their property and quality of life. She said Idaho
Code Section 42-222 sets forth the criteria required to be considered by
the Department of Water Resources. She stated that without the filing of a
protest the Department does not need to ascertain if the criteria is met and
the application is granted. She related her experiences in connection with
an application for a dairy water right nearby and her subsequent receipt of
a threat of a $1,000,000 lawsuit. She stated the interrogatories filed were
to intimidate and increased legal defense costs. As a result of the threats,
intimidation, retaliation, loss of employment and economic hardship
suffered by those in opposition to the industrial dairies, she was unwilling
to put any one or any family in jeopardy. She noted it has cost the
protestants significant funds to prepare for hearings which were postponed
by the applicant’s attorney hoping to gain planning and zoning approval
which would then be used as an excuse for the Department to grant the
permit without merit. She urged the Committee to hold the legislation in
Committee as she felt it was an assault on citizens’ rights.
Norm Semanko, Idaho Water Users Association, reported their
organization supports the legislation and has had the subject under
consideration for several years. He stated the Department proposed the
legislation to defer the incurred costs of processing the applications. He
noted the stream protection program has been eliminated because of
budgetary considerations and does not believe any further financial burden
should be imposed on the Department. Semanko said it was possible for
individuals to group together to file a protest instead of each filing
individually. He expressed a concern to keep the Department of Water
Resources financially solvent, noting the anticipated financial impact
states and estimated $9,450 increase to the Department.
Lynn Tominaga, Idaho Farm Bureau Federation, supports S 1058 and the
statements made by supporters of the legislation. He noted the legislation
addresses the question of fairness and equity.
Chairman Noh informed the Committee, due to the lateness of the hour, S
1058 would be held over to Monday for further consideration by the
Committee.
The meeting was adjourned at 3:00 p.m., due to a lack of committee time.






DATE: February 24, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, Kennedy
The meeting was called to order by Chairman Noh at 1:35 p.m.



Jake Howard, Executive Director, Idaho Outfitters and Guides Licensing
Board, introduced members of the Board in attendance: Ray Lyon, Scott
Farr and Will Judd.



Ray Lyon, Boise, Idaho, appeared before the Committee in behalf of his
reappointment by the Idaho Fish and Game Commission to serve as its
representative on the Idaho Outfitters and Guides Licensing Board. The
term of the appointment is June 1, 2002 to May 31, 2005. He informed the
Committee of his personal and professional background as set forth in the
attached letter.



Scott Farr of Challis, Idaho, appeared before the Committee in connection
with his gubernatorial appointment to the Idaho Outfitters and Guides
Licensing Board. Farr is a self-employed outfitter on the Middle Fork of
the Salmon River. He presently serves on the Resource Advisory
Committee which distributes federal funds to enhance federal land
opportunities for Idaho residents.



Upon inquiry from the Committee, Farr stated the impact of wolves has
been obvious with the decline in the elk population over the past five
years. He noted the population dynamics have changed from 38 calves per
hundred to 15 calves per hundred. The eighty cow elk wintering near his
place has only three calves left. The need to start managing the wolves is
significant and will affect the cow/calf ratio. The overall effect on the
outfitters has resulted in two outfitters ceasing business. One was able to
sell his business at 15 percent of his original cost, while the other still has
his business for sale and does not anticipate being able to sell the business.
Farr said early management is needed for the recognition of the areas
which have been significantly impacted.



Upon inquiry from the Committee, Farr stated he anticipates a guided wolf
hunt when they become available could cost $3,900, the same as a
mountain lion hunt.

S 1058 Karl Dreher, Director, Department of Water Resources, continued his
presentation on S 1058 from the meeting of Friday, February 21, 2002. He
provided to the Committee a copy of the Administrator’s Memorandum,
Transfer Processing No. 24, the transfer processing policies and
procedures, dated October 30, 2002. A copy is attached.



Senator Kennedy stated he has been inundated with correspondence
opposing S 1058 alleging the sole reason for the legislation is to stop
frivolous protests from being filed. Dreher stated the legislation is not
intended to stop the filing of protests, but is intended to equalize the filing
costs for a protest compared to the costs associated with an application.



Motion by Senator Little to send S 1058 to the floor with a do pass
recommendation. Motion died for lack of a second.



Motion by Senator Kennedy to hold S 1058 in Committee; seconded by
Senator Burtenshaw.



Roll call vote:

Ayes: Brandt, Burtenshaw, Cameron, Kennedy, Pearce, Schroeder,
Stennett, Williams and Noh

Nays: Little

Motion carried.

S 1101 Norm Semanko, Idaho Water Users Association, introduced S 1101,
legislation to amend the existing law to provide that an objection to a
digital boundary description of a water right in the Snake River Basin
adjudication shall not be required to use similar technology-based
descriptions; and to provide that the filing of a decree with the county
recorder shall not supercede the legal description of irrigation district
boundaries.



Motion by Senator Burtenshaw to send S 1101 to the floor with a do pass
recommendation; seconded by Senator Brandt. Motion carried. Senator
Williams will be the floor sponsor.

S 1099 S 1099 was explained by Karl Dreher, Director, Department of Water
Resources. He stated the legislation would amend existing law to specify
conduct that constitutes an illegal diversion or use of water; to authorize
the director of the Department of Water Resources to take certain actions
upon investigation of available information; to revise content requirements
for notices of violation; to revise civil penalty provisions for specified
illegal diversion or use of water; and to provide that designated action
does not afford relief from certain civil liability.



Motion by Senator Pearce to send S 1099 to the floor with a do pass
recommendation; seconded by Senator Williams. Motion carried. Senator
Pearce will be the floor sponsor.



Time having expired; the meeting was adjourned at 2:55 p.m.






DATE: February 26, 2003
TIME: 2:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Schroeder, Burtenshaw,
Williams, Brandt, Little, Stennett, Kennedy
MEMBERS
ABSENT
Senator Cameron absent.
The meeting was called to order by Chairman Noh at 2:35 p.m.



Chairman Noh introduced Joe Jordan, Chairman of the Idaho Water
Resources Board, to the Committee.



Jerry Rigby of Rexburg, Idaho, informed the Committee he has been on
the Board for eight years and an attorney for twenty-four years. He is the
second generation attorney in his family handling water law issues. He
noted he has been involved in water law since the Snake River Basin
Adjudication began. Rigby stated the functions of the Board have been
significant in the support of water programs throughout the state.



Senator Kennedy noted, with pleasure, that Rigby’s political affiliation is
listed as Democrat. Rigby responded that the Board does not work as a
political board, but works for the best interests of all citizens of the state.



Gary Chamberlain of Challis informed the Committee he ranches in the
Challis area and has served for many years in various capacities on the
Challis Irrigation Board.



Robert Graham of Bonners Ferry reminded the Committee he is still truly
an independent.



Senator Keough informed the Committee of Graham’s cooperation and
assistance in water matters and confirmed his independent political status.



Richard Wyatt of Lewiston informed the Committee he is a third
generation farmer in the Lewiston Orchards area. He appreciates the work
of the Board in funding small town water projects.
Motion Motion by Senator Stennett to the approve the gubernatorial appointment
of Scott Farr to the Outfitters and Guides Licensing Board; seconded by
Senator Burtenshaw. Motion carried. Senator Little will be the floor
sponsor.
Motion Motion by Senator Burtenshaw to approve the Idaho Fish and Game
Commission appointment of Ray Lyon to the Outfitters and Guides
Licensing Board. Motion carried. Floor sponsor to be determined.
Time having expired; the meeting was adjourned at 3:00 p.m.






DATE: February 28, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Brandt, Little, Stennett, Kennedy
MEMBERS
ABSENT:
Senator Williams absent.
MINUTES: Motion by Senator Pearce to approve the minutes of February 5, 2003,
with the correction of Senator Cameron present at the meeting; seconded
by Senator Cameron. Motion carried.
Motion by Senator Burtenshaw to approve the minutes of February 7,
2003; seconded by Senator Stennett. Motion carried
Motion by Senator Kennedy to approve the minutes of February 10, 2003;
seconded by Senator Little. Motion carried.
Motion by Senator Cameron to approve the minutes of February 17, 2003;
seconded by Senator Brandt. Motion carried.
Motion by Senator Schroeder to send the Gubernatorial appointments of
Jerry Rigby, Gary Chamberlain, Robert Graham and D. Richard Wyatt to
the Idaho Water Resource Board to the floor with a do confirm
recommendation; seconded by Senator Stennett. Motion carried.
HCR 18 Dean Sangrey, Department of Parks and Recreation, explained HCR 18
which is a concurrent resolution to reject a rule of the Department of Parks
and Recreation relating to administration of parks and recreation areas and
facilities. In explaining the rejected rule, Sangrey noted the House
Resources and Conservation Committee was concerned about setting forth
in the Idaho Code the definition of “family unit.” The intent of the
Department was to clarify the definition in respect to camping sites.



Motion by Senator Stennett to send HCR 18 to the floor with a do pass
recommendation; seconded by Senator Burtenshaw. Motion carried.

HCR 19 Sangrey then explained HCR 19, a concurrent resolution approving an
administrative rule of the Department of Parks and Recreation to impose a
fee or charge for changing a reservation. He explained the rule was
inadvertently included in the pending rules, instead of in the fee rules. The
concurrent resolution corrects the error and allows the rule to go into
effect.



Karen Gustafson, Department of Administration, Office of Administrative
Rules, confirmed the rule was inadvertently included in the pending rules,
instead of the fee rules where it should have been.



Motion by Senator Stennett to send HCR 19 to the floor with a do pass
recommendation; seconded by Senator Burtenshaw. Motion carried.

H 56 Karl Dreher, Director of the Department of Water Resources, explained H
56 is intended to revise the powers and duties of the Water Resource
Board in regard to the Revenue Bond Program. Additionally, the
legislation clarifies the loan repayment funds are not general fund monies.



Norm Semanko, Idaho Water Users Association, stated their support of the
legislation.



Motion by Senator Little to send H 56 to the floor with a do pass
recommendation; seconded by Senator Stennett. Motion carried.

H 124 Norm Semanko, Idaho Water Users Association, explained H 124 relates
to investment of irrigation district funds. The legislation would permit
investment of surplus funds in additional warrants or bonds. The
legislation was recommended by a bond counsel to change the existing
statutes dealing with irrigation districts. He stated that irrigation districts
are authorized under a law enacted in 1933 to operate as local
improvement districts. Once an irrigation district is authorized to operate
as a local improvement district, in an urbanized area they can make
significant improvements. According to bond counsel, the irrigation
districts are not able to invest surplus funds into the local improvement
districts. He stated without the ability to invest surplus funds the districts
have to go to another source of funding. This legislation would allow
irrigation districts to put surplus monies toward the local improvement
district activities which have already been approved. He noted this does
not involve general funds but does involve the funds of the irrigation
district being dedicated to those purposes. As Idaho becomes more urban,
the local improvement districts by irrigation districts will increase and the
legislation increases the flexibility to provide funding.



Upon inquiry from Senator Burtenshaw, Semanko stated the district would
be able to invest the surplus funds in general obligation bonds of the state
or federal or the local improvement district bond or warrant. It would not
authorize a new bond. This would avoid having to obtain other types of
financing. The legislation would apply to Title 17, Chapter 50, which are
municipal bonds. Chapter 25, Title 43, the irrigation district local
improvement district bonds would also be eligible.



Daren Coon, Nampa-Meridian Irrigation District, stated the legislation
would allow the irrigation district would utilize surplus revenues to
purchase the bonds. This would keep the financing internal and reduce
costs.



Motion by Senator Burtenshaw to send H 124 to the floor with a do pass
recommendation; seconded by Senator Kennedy. Motion carried.

H 208 Lynn Tominaga, Executive Director, Idaho Ground Water Appropriators
and representing the North Side Ground Water District, explained H 208
would revise the powers of Ground Water District Boards to vote on
behalf of the membership in water district meetings. The change would
allow an orderly and efficient method of voting. Presently Ground Water
District board members are elected by the membership. He noted each
individual ground water district member will have the right to vote his
water rights at the water district meeting if written notice is given prior to
the meeting. This would also save funding for the water districts and
ground water districts if an issue of voting takes place at an annual
meeting. He noted the ground water districts are recent governmental
entities formed in 1995. The main purpose of the ground water districts is
to try and provide mitigation for senior water right holders if there is an
issue of conjunctive management to mitigate for any injury to the senior
surface water holder. Tominaga stated the difference between the two
districts is that the water district comprises the water right holders while
the ground water district is an entity representing water right holders that
provide mitigation. With the formation of water districts 120 and 130, a
problem emerged at water district meetings for ground water users.
Presently it is one man one vote at a water district meeting unless an
individual would like to attend and vote his shares or water rights at the
water district meeting. In water district 120, there are more than 2,000
irrigation wells while in a water district there are also more than 2,000
irrigation wells. If one individual requested at a water district meeting to
vote his shares, it would be necessary to have 50 percent plus one to have
a quorum to conduct the meeting. The ground water districts collect the
assessment for the water district and for the water master. The ground
water districts are the subdistricts within the water district. The legislation
would allow the ground water districts to accumulate the assessments and
be able to vote on behalf of the water right holders only at the water
district meeting.



Tominaga provided to the Committee a copy of two proposed amendments
to the legislation. A copy of the changes is attached. He stated on page 1
line 39 “notwithstanding any provision to the contrary” would be added.
On page 2, line 44, “and to the chairman of the water district” would be
included. At the end of that paragraph, “The Board shall provide a
verified list of the water rights that it represents at any water district
proceeding or meeting to the chairman of the water district, at that
proceeding or meeting” would be added.



Upon inquiry, Tominaga explained why the amendments are forthcoming
at this time. The legislation was passed in the House and then submitted to
the water users associations because they were having their water district
meetings during the same time period. The water users recommended
changes to the legislation. He provided to the Committee a copy of the
legislation with the proposed amendments engrossed in the legislation. A
copy is attached.



Upon inquiry from the Committee about how curtailment of use might
occur, Tominaga stated an order would be issued by the Director of the
Department of Water Resources as to who would be shutoff and the water
master would have to follow the directions of the Director of the
Department of Water Resources. It is the Director and water master who
determine who is curtailed based upon use of priority. The basic function
of the water district is to regulate the water within the boundaries of the
water district, regardless of whether you are a ground water or surface
water user.



Upon inquiry from Senator Cameron, Tominaga stated the
“notwithstanding” language was suggested by the Idaho Water Users
Association because of their concern that this provision would apply to the
water district votes. The amended language clarifies the legislation only
applies to this section of the code and does not apply to the water district
code.



Semanko stated the proposed amendment came from the legal counsel for
the Department of Water Resources. The water district code specifically
states that voting shall be by majority vote of the water users present. The
concern was that even though the ground water district code states voters
must be in attendance, the water district code does not allow that.
Therefore, there is a direct conflict between the two statutes.



Senator Kennedy expressed concern about the method being used for
exemption as set forth in the proposed amendments. Semanko stated the
IWUA legislative committee decided if the exemption was included in the
appropriate section of the code, 42-605, it would draw attention and
possibly create other exemptions.



Senator Cameron inquired, if a water district appoints a credential
committee how does the committee ascertain whether the members of the
ground water district have the credentials to vote when they are voting by
proxy? Semanko stated the credentials are the water right number and the
size of the right. The information is provided by the ground water district
to the water district at the proceedings by a verified list. Tominaga stated
the information is already available through the Department of Water
Resources. The information is submitted at the time the ground water
districts are formed. Likewise, when members are included or excluded
out of the district, the Department of Water Resources is informed.



Motion by Senator Kennedy to send H 208 to the fourteenth order;
seconded by Senator Cameron. Motion carried.



There being no further matters to come before the Committee, the meeting
was adjourned.






DATE: March 3, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, Kennedy
The meeting was to called to order by Chairman Noh at 1:40 p.m.
HJM 2 Representative Charles Cuddy explained HJM 2. The memorial requests
the U.S. Congress to recognize the recovery of endangered salmon in the
Pacific Northwest is a national concern. Inasmuch as it is a national
concern, the majority of funding for the recovery program should be
appropriated from the federal budget. He noted the costs to date have
changed the functions of many federal and private hydroelectric plants in
the northwest, which has increased the cost of energy to the consumer. He
stated the current recovery system does little to sustain native fisheries or
reservoir levels. The recovery program is in the interest of all citizens of
the United States and the costs of recovery should be distributed
accordingly.



Motion by Senator Brandt to send HJM 2 to the floor with a do pass
recommendation; seconded by Senator Williams. Motion carried.

HCR 12 Jake Howard, Executive Director, Idaho Outfitters and Guides Licensing
Board, explained HCR 12 is legislation to reject a rule proposed by the
Board relating to qualifications and first aid cards.



Upon inquiry from Senator Burtenshaw, Howard stated the legislation
does not change the requirement of a first aid card, but changes the
procedure for renewing the license certification card. It does not change
the requirement, but changes how and when the Board review the license
certification card. It does not change the requirement of a first aid card,
just the requirement that the first aid card be on their person.



Brad Hoaglun, representing Idaho Outfitters and Guides Association,
informed the Committee HCR 12 is a fair compromise and still includes
the requirement for first aid training.



Motion by Senator Pearce to send HCR 12 to the floor with a do pass
recommendation; seconded by Senator Burtenshaw. Motion carried.

H 36 Howard explained H 36 would allow the Idaho Outfitters and Guides
Licensing Board to develop a fee structure for expedited, electronic,
resubmittal or emergency processing of applications. Additionally, the
Board would establish a fee for the use of credit card payment of fees
which would be the cost to the agency by the credit card company.

The legislation would allow the Board to promulgate rules to establish fees
for expedited, electronic, resubmittal or emergency processing of
application. Approximately 3,000 applications are processed annually.
An on-line license application program is under consideration by the
Board through the Access Idaho program. Until the on-line program is
available, there is still a problem processing applications because of
incomplete or incorrect information. The Board feels the applicant should
bear the burden of the additional costs for incomplete or incorrect
application information. The processing of emergency applications has
been abused and because it is a subjective process there is not any way for
the Board to verify the emergency. The Board would like to offset the
cost for emergency applications by a specific fee for those applications.
He noted the applications are streamlined and easy to complete.



The fiscal impact would initially be approximately $20,000 maximum and
would decrease annually because the fees would discourage fewer requests
for such processing.



Hoaglun stated the Outfitters and Guides Association supports the
legislation.



Motion by Senator Schroeder to send H 36 to the floor with a do pass
recommendation; seconded by Senator Cameron. Motion carried.

H 38 Howard then explained H 38, legislation to allow the Board the option of
multiple year licensing. He noted the change has been requested by the
outfitters’ industry. This would allow the Board to license an outfitter or
designated agent three to five years. The Board has not determined the
number of years at this time.



Hoaglun stated the Outfitters and Guides Association supports the
legislation. He noted the license is not a property right and cannot be sold.
The license must be turned back into the Board.



Upon inquiry from Senator Kennedy, Steve Tobiason, attorney for the
Idaho Outfitters and Guides Licensing Board, stated that no license may
be sold or transferred. Section36-2108, Idaho Code, clarifies the
application process so the applicant could be either an outfitter or guide.

Senator Kennedy further inquired whether the licensure fees are used to
fund the operations of the Board. Howard stated the Board is entirely
funded by license fees. In the instance of multiple year licenses, the fees
for the multiple license would be spread out over the time of the license.
The multiple year license is being requested by the Board in concurrence
with the industry.



Motion by Senator Cameron to send H 38 to the floor with a do pass
recommendation; seconded by Senator Brandt. Motion carried.

H 40 Howard explained H 40 is to change the license year from March 31 to an
annual date of January 31. This would allow the outfitters to be licensed
before the guides, who work for the outfitters. This will streamline the
licensing process. He noted there are a significant number of guide
applications in April and May in preparation of the white water season.



Motion by Senator Burtenshaw to send H 40 to the floor with a do pass
recommendation; seconded by Senator Stennett. Motion carried.

The Committee then reviewed and discussed the operations of the Idaho
Outfitters and Guides Licensing Board. Chairman Noh noted the
organization has individual territories allocated by the Board. The
activities are tightly regulated by the Board, Forest Service, Bureau of
Land Management, Department of Fish and Game, Department of Parks
and Recreation and an in-house investigative and enforcement section of
the Board. He noted it is significant how many are involved in fish and
game violations. Howard informed the Committee he has been the
Director since April. Currently the licensing process is driving all the
other activities of the agency. He noted the agency needs to work hand-in-hand with the industry in dealing with issues important to maintain the
industry. The backlog in the licensing process has hampered progress.
Much of the legislation proposed this session is an attempt to improve the
licensing process for the industry. This will allow the Board to focus on
other aspects of the agency. Training and education are two areas in need
of improvement. He stated there are violations which will be before the
Board in the next couple of months. When there is a violation and an
appearance before the Board, the Board is provided a good investigative
information for their review of the violation. A significant problem noted
by Howard is individuals who have never been licensed as an outfitter in
the state. Currently there are two examples of advertising outfitting
services in the state that are not licensed. The unlicenced outfitter in the
state is basically going unchecked. It is becoming a fairly significant
problem for the licensed outfitters. The licensing board in cooperation
with the association and the industry are concentrate efforts on this
problem.



Howard stated the industry will be undergoing a change because of the
impact of wolf depredation and loss of resource opportunities. Outfitters
are changing from traditionally outfitting opportunities to non-traditional
outfitting, such as, mountain biking, snowmobiling and hiking. The Board
feels there are challenges ahead to make some appropriate changes and to
work closely with the industry without being a burden. The Board will
work more closely with the Department of Fish and Game. There is
currently a memorandum of understanding being negotiated concerning
issues within the agencies. The ability to outfit on private lands is a
concern. There needs to be some appropriate ways for that activity to

continue and allow outfitters to diversify because of the changes on public
lands.



He noted the agency is working closely with the Forest Service and the
Bureau of Land Management because these agencies are becoming more
involved with outfitting activities. There is a memorandum of
understanding being renegotiated to clarify the application process and
collaboration necessary to work with outfitters on public lands to
coordinate licensing processes. An example would be the submission of a
use report to the Forest Service or other federal agencies and one to the
Board. Additionally, the agency is attempting to make opportunities to
work with the Department of Fish and Game more visible. A geographic
information system is being developed which will include the operating
areas of the respective outfitters. This system would be on the web site
and link all the outfitting activities and the appropriate outfitter for the
area. Howard noted the outfitting business is a very dynamic business and
is undergoing change.



Upon inquiry; Tobiason informed the Committee he has not had a case
where the outfitter was outfitting within tribal lands. The Board does not
license outfitters to operate on tribal lands. These lands are the tribes own
sovereign area of operation.



Upon inquiry by Senator Stennett, Howard stated the South Fork of the
Snake River is already limited on the number of boats. The Board is
currently reviewing the resource and will limit the number of outfitters. In
regard to the Jackson Hole guides, Howard noted there are a number of
licensed outfitters on the South Fork. Each outfitter is limited to three or
four boats a day. There is an issue of unlicenced outfitters in the state. He
noted one aspect is Hyde Outfitters are being confused with Hyde Boat
Company. There is a sticker issued by the Bureau of Land Management
for the guided boats in that area each year. Those outfitters are licensed.

There being no further matters to come before the committee, the meeting
was adjourned at 3:05 p.m.






DATE: March 5, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, Kennedy
The meeting was called to order by Chairman Noh at 1:40 p.m.
MINUTES: Motion by Senator Brandt to approve the minutes of February 14, 2003;
seconded by Senator Williams. Motion carried.



Motion by Senator Williams to approve the minutes of February 19, 2003;
seconded by Senator Brandt. Motion carried.

H 43 Ronald Litz, Assistant Director, Department of Lands, explained H 43, pertains
to the Forest Practices Act, which was passed in 1974 in response to the
Federal Clean Water act, and which governs activities of forest owners to
insure that the forest resources are protected. It is funded by a combination of
general funds and landowner assessments. The rate was set prior to 1993 and
has not been increased since that time. The purpose of the legislation is to
amend existing law giving the State Board of Land Commissioners authority to
increase the annual assessment for private owners of forest lands whose total
acres of forest lands are twenty-six acres or more from five cents per acre to a
maximum of ten cents per acre. This will raise approximately $213,000 per
year which will offset the cost of the programs implemented over the last few
years that have put a demand on the funding, which includes anti degradation,
cumulative watershed effects, stream segments of concern, as well as forest
certification programs.



Senator Noh inquired if general funds have increased since the original
appropriation and how the percentage of the general fund versus the private
portion of the fund stands? Litz stated the general fund and the assessment
have remained the same. Thirty percent of the general fund is for advisors who
administer stewardship programs which help non industrial private land
owners. Another 35 percent is funded out of the general fund and 35 percent
out of the assessment.



Jane Gorsuch, Vice President of Idaho Affairs for the Intermountain Forest
Association, stated their support. She stated she also represents the Associated
Logging Contractors which are in support of this bill. She presented to the
committee a letter to the department from the Idaho Forest Owners
Association in favor of the legislation. (See attached.) She stated the
association’s newsletter states their support of the legislation. These three
groups form the majority of forest land owners in Idaho based on an acreage
basis.



Upon inquiry from Senator Burtenshaw, Litz stated FPA inspects logging
activity to insure compliance. He further stated it is critical to validate that the
operations are performed legally and in an environmental safe manner.



Chairman Noh commented that periodically an audit tour is conducted to
evaluate procedures under the Clean Water Act and management practices.
Litz stated DEQ performs an audit every four years and during the other years,
the Department of Lands conducts an internal audit.



Senator Little noted this is a 100 percent increase and asked if the fund was
depleted because this program helped with certification for industrial timber
land owners. She responded that the companies need the reports on the
certification process for verification of compliance with Forest Practices Act.
There is an increased demand for the tracking mechanism.



Upon inquiry from Senator Burtenshaw, Litz stated the five cents were added
prior to 1993 and have not been changed.

MOTION: Motion by Senator Little to send H 43 to the floor with a do pass
recommendation; seconded by Senator Stennett. Motion carried.
H46 Litz presented H 46 pertaining to the fire pre suppression program, to amend
existing law to allow the State Board of Land Commissioners to increase
assessments for fire protection for private owners of forest lands with twenty-six acres or more from forty-five cents per acre to a maximum of sixty cents
per acre. The legislation would also allow the State Board of Land
Commissioners to increase the improved lot or parcel surcharge from ten
dollars to a maximum of twenty dollars per improved lot. The Departments of
Lands is responsible for suppressing all forest fires needs to fund crews, fire
equipment and supplies. The actual cost of suppression is borne by the general
fund, so the landowner assessment basically buys equipment. The current
assessment is forty-five cents an acre with the remainder from the general fund.
From the beginning, funding was on a fifty-fifty ratio, but the cost is now $1.08
per acre. It is clear that $.45 is below the threshold. The department estimates
this will result in about $2 to 2.8 million a year.
MOTION: Motion by Senator Little to send H 43 to the floor with a do pass
recommendation; seconded by Senator Stennett. Motion carried.
H 35 Jane Gorsuch, Idaho Forest Products Commission, stated H 35 will enhance a
method to collect and distribute accurate, factual unbiased information on
forest products in Idaho. The current statute provides for the assessment and
fee from every sector of the industry, including the forest land owners, the mill
operators, the employees who work in the mills and in the woods, the loggers
and the truckers. Every aspect of this business sector has the self-imposed fee.
Gorsuch told the committee that the statute has stood the test of time and is
operating well. She noted the legislation is necessary to clarify to which
calendar year assessments of the Idaho Forest Products Commission apply.
Additionally, it will provide the information from which calendar year data is
accumulated to calculate such assessments. The bill also provides that
assessments will be paid to the Commission in accordance with rules adopted
by the Commission.

The reason for the legislation is because of the sale of a mill operation and
land in north Idaho two years ago. The attorneys interpreted the statute
differently and even though the matter was settled, it is necessary to clarify the
statutes. The legislation has been reviewed by the Attorney General’s office
and the Department of Lands. The clarifications are basically what the
assessment year is versus the payment year.

MOTION: Motion by Senator Cameron to send H 35 to the floor with a do pass
recommendation; seconded by Senator Stennett. Motion carried.
Chairman Noh provided a copy of the proposed letter and questions to the State
Board of Land Commissioners in relation to the legislation authorizing a forty-nine-year lease for Tamarack, LLC, and requested any suggested changes or
additions be provided to him. A copy is attached.



Senator Cameron asked if the intent was to send the letter and questions to the
Land Board and wait for a response before acting on the legislation. Chairman
Noh responded that was the intent as the committee had been provided with a
prior draft of the questions. He further stated that after the response from the
Land Board, there will be a public hearing.



Senator Kennedy informed the Committee of his role in reviewing the letters
from the three outside experts and the comments in the draft questions to the
Land Board. He stated that in reviewing the three letters, several comments put
the Committee on notice to exercise due diligence as a committee or as a body
of the Senate. Chairman Noh expressed appreciation for Senator Kennedy’s
efforts.



Upon inquiry from Senator Little, it was noted the proposed lands under H 488
(2002 session) have an agricultural exemption. Additionally, there is a
stipulation that the land will be taxed at agricultural rates and only the specific
parcels on which construction takes place will be at the development rate.



Senator Pearce stated he talked with Ken McClure and the developers
recognize a certain amount of risk involved. Senator Pearce requested that the
state lease to the Indian Valley Cattle Company continue, as well as allowing
Tamarack to proceed. McClure stated Tamarack had no problem with the
proposal and he would consult with the Land Board. There was no opposition
expressed among the Committee.

Chairman Noh provided to the Committee a copy of a Times News article of
March 5, 2003, in which a federal judge barred a plan in Idaho to kill ravens,
red foxes, raptors, badgers and magpies to study whether predator control
would buoy the struggling sage grouse population. A copy is attached.
The Chairman also provided a copy of the court memorandum decision of
March 4, 2003, in this case. The court issued an injunction prohibiting the U.S.
Fish and Wildlife Service from participating in the Idaho Department of Fish
and Game plan. A copy is attached.
The Chairman welcomed the new Idaho Director of the Bureau of Land
Management, K Lynn Bennett, and assistant, Jack Sepp. Bennett stated he
anticipates a good working relationship with the committee because of the
interest and concerned about public lands in Idaho. Bennett worked for the
Bureau of Land Management for 32 years in four different states, including
twice in Idaho. He was a range conservationist in the Burley district in the
early 70’s and worked in Washington, D.C. for four years as Chief of Range
Management. He returned to Idaho as manager of the Shoshone District.
Thereafter he left BLM to ranch in King Hill in Elmore County. When his
partners wanted to sell their ranch, this position became available. He stated he
is experienced on both sides of the BLM fence with the experience of writing
federal regulations, administering federal regulations as a district manager, and
then had the regulations administered to him. He stated he was well aware of
how the administration of BLM lands directly impacts people and affects
communities across the state. The BLM manages twelve million acres of
public land in Idaho, which is 22 percent of the state. Bennett stated he
believes in using good science in making resource decisions, which means that
they work with and respect all the people who use public lands. He noted that
includes the miners, bikers, hunters, loggers, campers, livestockman, and it is
BLM ‘s job to work with them. He is a proponent of multiple use and the BLM
philosophy to follow the law, which is not easy as some are conflicting. He
further stated we need to protect the land and its resources along with
promoting the economic viability of the communities that depend on public
lands.



Bennett noted some of the issues in the Bureau area include a proposal to
review grazing regulations. There will be a federal notice of purposed rule-making to ask for suggestions, as the rules have not been formulated. There
will be four meetings held in the west to give the director and secretary some
idea of the scope of the changes. These meetings will be held in Reno,
Nevada; Billings, Montana; Santa Fe, New Mexico and Washington, D.C., and
Idaho should have input into those regulations. Some of the ideas are to
extend the time of non use from three years to five years. Also, a reserved
common allotment is being considered where land could be held for ranchers to
use during times of burnout or drought. Another option is looking at
eliminating the conservation use grazing permits that were put in place in 1994.



Another issue of high priority is off road vehicles. BLM has developed a
statewide off highway vehicle strategy document, which is now in draft form.
The first section contains the policy which would be a good source book for the
off highway vehicle policies. The second section will be an action plan. In a
meeting with the resource advisory council, the issue of statewide off highway
vehicle use was the top priority. BLM is working with Forest Service,
Department of Parks and Recreation, and the Department of Fish and Game
toward that effort. Another issue is implementation of national fire plan and
healthy forest initiatives. He noted there is a considerable hazardous fuel
reduction program underway. This year seven-two projects will cover 116, 000
acres. In addition there are another sixty-one projects in the planning stage.
Another issue is the stewardship contract, which provides an opportunity to
trade goods for services. He also stated if there was a hazardous fuel situation
in the community, it could be cleaned up and the materials would be provided.



Upon inquiry from Chairman Noh, Bennett stated stewardship contracting
could include rangelands with the contracting tied to healthy forest and healthy
rangelands. Bennett stated there is value there that can be traded for services,
such as trading forest and grazing fees. He stated there are examples on range
lands where stewardship contracting would definitely work in weed control.
BLM and Forest Service representatives have contracted to use sheep and goats
to graze obnoxious weeds. He stated there is a citizen-based group trying for a
consensus on wilderness, grazing, range improvement issues in Owyhee
County and Senator Crapo is working on legislation to make that permanent.
Bennett noted that BLM is not a member of that committee, as it is citizen
drive, but BLM is in support of the efforts.



Senator Noh thanked Bennett for the review and asked how the committee
could help to prevent listings of species. Bennett stated one area would be to
allow for a state group work to formulate practices for the management. He
stated is important to manage the species to protect them from potential
listings. Chairman Noh asked about the relationship of working with the
Department of Fish and Game without the additional funding. Bennett has met
with the director of the Department of Fish and Game, but has yet to meet with
the Office of Species Conservation.



Chairman Noh stated in view of the tight budget year, there had been talk of a
closer working relationship and sharing resources between the Forest Service
and BLM. Bennett said that there was currently an effort called “Service
First” to co-locate a number of officers along with a change of boundaries and
management to combine offices.



There being no further matters to come before the Committee, the meeting was
adjourned at 3:00 p.m.






DATE: March 10, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, Kennedy
The meeting was called to order at 1:40 p.m. by Chairman Noh.
H 110aa Senator Keough explained H 110, as amended in the House, is legislation
to create a Lake Pend Oreille, Pend Oreille River Priest Lake and Priest
River Commission and to provide for membership, duties and a fund. The
commission shall consist of seven members: a chairman and four
members, who may be residents of Bonner County ­ who shall be selected
by the Governor; and the regional director of the U.S. Fish and Wildlife
Service; and the Attorney General of the State of Idaho. The Governor of
the State of Montana shall be an ex officio member of the commission.
The duties of the commission shall be to study, investigate and select ways
and mean of controlling the water quality and water quantity for the
interests of the communities and the state of Idaho and for the survival of
the native species of fish in the Pend Oreille Priest Basin. The native
species are listed as: bull trout, westslope cutthroat, mountain white fish,
pike minnow and the forage base for bull trout and kokanee salmon.



She noted the commission would have the authority to study, investigate,
develop and select strategies with the Department of Water Resources, the
Department of Environmental Quality, U.S. Fish and Wildlife Service and
the U.S. Army Corps of Engineers in relation to native fish, scenic beauty,
health, recreation, transportation and commercial purposes necessary and
desirable for all the inhabitants of the state. The legislation also sets out
that the commission shall have the authority to receive and direct any
mitigation monies into the fund created by the commission.



Keough noted the legislation does not authorize the commission to
establish or require minimum stream flows or lake levels which may only
be established pursuant to Idaho Code.



Further, the legislation creates in the state treasury the fund which shall
consist of monies from appropriations, federal funds, mitigation monies,
donations or monies from any source. Monies in the fund are to be
perpetually appropriated and may be dispersed for corrective actions to
complete the measures which pertain to the duties of the commission. The
release of any mitigation funds shall be authorized by the State Board of
Examiners. Monies in the fund may be used to pay administrative costs.



Keough stressed the concern of the communities of uncertainty of lake
levels and the inability of the communities to participate in discussions
regarding the lake levels. The establishment of the commission would
provide an avenue for consensus building and negotiations by the
concerned communities. She noted because the Department of Fish and
Game is already involved in the management, the department was not
included in the list of state agencies. She stated the legislation is intended
as a tool to enable participation by the affected communities.



She further informed the Committee, Idaho Department of Fish and Game
currently has influence on the issues because through their charter they
have the responsibility to take care of the native fish and wildlife. The
DFG has the ability and has assisted with the issue. When it becomes
necessary for litigation, the community group has been required to hire the
attorney and pursue preserving the lake level. The legislation is a
consensus group of five to provide a mechanism for the local community
to be able to engage the Corps of Engineers, National Marine Fisheries
Services, and others who believe they have a claim to the water in the lake
downstream. She noted there is some concern that the committee has
neglected to name the Department of Fish and Game on the commission.
Keough stated the department is already involved in the lake level issue in
regard to the native fish. The legislation is seeking to compliment and add
to the tools that the department provides. It is the view of the sponsors of
the legislation, one of the first things the commission could do would be to
develop an advisory committee on which any state entity or entity in the
watershed would be appointed to the advisory committee to assure
cohesive communication on all the issues that are present in the area. She
noted there has been an additional concern that the legislation might harm
or jeopardize the relicensing agreement of AVISTA of Cabinet Gorge
Dam. Keough stated that is not the intent of the committee and the focus
is on the lake levels and providing a mechanism by which the communities
around the lakes and rivers have a way to deal with the issue.



Representative George Eskridge informed the committee that it was
important for the affected communities to have a higher degree of standing
in relation to the determination of lake levels. He informed the committee
of the uncertainty of lake levels two years ago due to the drought and the
difficult negotiations necessary to have input into the decision making
process. Ultimately, the Corps of Engineers decided that no further water
from the lake was necessary, but the economic concerns should have had
more influence.



Chairman Noh noted the dam was built as a flood control project by the
Corps and because of the Endangered Species Act, the federal agencies
have been able to open the head gates and lower lake level.



Michael Bogert, Legal Counsel, Office of the Governor, stated the
biological opinion of December 2000, by the Fish and Wildlife Service is
the guiding document regarding the lake level because of considerations
under the Endangered Species Act. He noted the Fish and Wildlife
Service has jurisdiction over the fresh water fisheries that have ESA
species implications on or around the lake and the operation of Albany

Falls. The operation by the Corp. is contained in the biological opinion
issued by the Fish and Wildlife Service. There is one provision in the
biological opinion which refers to the lake levels and a direction to the
Corps. on the operation of Albany Falls. The primary species of concern
is the bull trout. The other species are listed in the legislation. Upon
inquiry, Bogert stated the anadromous fish which come under the
jurisdiction of the National Marine Fisheries Services do not pertain until
the confluence of the Salmon, Clearwater and the Columbia Rivers. The
operation of the Albany Falls project is believed to have some flow
implications. In this case, the NMFS biological opinion, related to Albany
Falls, is part of the Federal Columbia River Power System. He noted there
are two separate documents: one by the National Marine Fisheries Service
for sea going fish and one by Fish and Wildlife Service for resident fish.



Upon further inquiry from Chairman Noh, Bogert stated the water right,
held by the Governor for the benefit of the public, is protected by
legislative action placing all of the unappropriated waters in the lake in
trust. One of the legal issues to be determined is the scope of the trust.
The operation of Albany Falls and the directives by Fish and Wildlife
Service could have some impact on the issue. At this time, the issue is not
significant enough to warrant judicial interpretation of the water right.



Senator Keough stated there is an outlet dam, managed by Avista, on
Priest Lake which would allow water to go into Priest River and then
downstream.



Larry LaBolle, Manager, Avista Corporation, informed the committee that
the outlet dam at Priest Lake is owned by the State of Idaho. The water
right to the storage is owned by the state and is operated by agreement
with Avista.



Chairman Noh noted the first apparent threat to Idaho water was the
potential for developing agriculture in the Columbia Basin in Oregon and
Washington. Concern for the appropriation of the lakes resulted in the
Legislature created the first minimum lake level water rights in the nation.



Bogert noted the handout provided to the Committee, (a copy is attached)
and the graphic comparison of H 110 with H 254 from the 1993
Legislative Session and H 256aa from the Legislative Session of 2001,
which established commissions for Big Payette Lake and Lake Coeur
d’Alene projects. He noted there is precedent, through these projects,
for the cooperation of state and federal agencies for the local communities
who are impacted by the such projects to participate in the management
decisions. There is a clear role for the Department of Fish and Game to
advise the Fish and Wildlife Service on the lake levels.



Chairman Noh stated Bogert’s letter, provided to the Committee, is an
attempt to respond to the opinion of the Deputy Attorney General (a copy
is enclosed). He stated the essence of the opinion was that it is not legally
possible through H 110 for the commission to get in the way of other
existing legal authorities which have statutory responsibility to fulfill
certain obligations. The commission would not be able to take the place of
or conflict with any of those entities. Bogert stated he was in agreement
with the Deputy Attorney General’s opinion. He referred to two specific
provisions of H 110 which set forth clear direction that the commission
shall have the authority to study and investigate and select ways and
means with the Department of Water Resources and with the Department
of Environmental Quality and with the U.S. Fish and Wildlife Service and
the Army Corps of Engineers. Additionally, subsection two sets forth a
disclaimer of any ability to set lake levels and minimum stream flows,
which is a process left to the Water Resource Board. He stated there is no
effort by H 110 to amend any of the organic statutory provisions of any of
the state agencies that are implicated in the coordinated effort.



Senator Kennedy noted H 110 is one page long while the Attorney General
opinion is twelve pages and the representations from the Governor’s office
is seven pages. He further noted the Department of Fish and Game is not
included in the commission responsibilities. He inquired why the services
of the U.S. Fish and Wildlife Service and not the Department of Fish and
Game would be used? Bogert responded that the fact the Fish and Game
Commission is not mentioned is not an indication that the legislation can
succeed without the department. If the commission is enacted into law, it
would be a complete failure not to have an active participation by the
Department of Fish and Game. The five appointments to be made by the
Governor will in all likelihood, include the Department of Fish and Game,
who have the best understanding of the conservation measures.



Senator Kennedy stated according to H 110 the commission does not have
authority to enter into negotiations with the Department of Fish and Game.
The legislation specifically authorizes the commission to enter into
strategies with the Department of Water Resources, the Department of
Environmental Quality, U.S. Fish and Wildlife Service and the U.S. Army
Corps of Engineers. The Idaho Department of Fish and Game is not even
recognized. Senator Keough responded that it was not intentional. She
noted there were five different people involved in drafting the legislation
under a consensus. The omission was an oversight and the intent was to
provide another tool in the effort.

Upon inquiry from Chairman Noh, the five individuals who drafted the
legislation were Representative Eskridge, Representative Campbell and
Senator Keough along with Michael Bogert and Ford Elsaesser, a
Sandpoint attorney, who has been active with local groups in litigation on
the lake level issue.



Senator Kennedy inquired regarding the membership of the commission
and the inclusion of the regional director of the U.S. Fish and Wildlife
Service. If there is no objection to the Department of Fish and Game as
one of the partners, why would it not be appropriate to amend H 110 and
so indicate the Department replace the regional director of the U.S. Fish
and Wildlife Service. Senator Keough stated it may be appropriate under
the duties of the commission, to include the Department of Fish and Game
along with the other state departments. Designation of the regional
director of the U.S. Fish and Wildlife Service is for the need to have
someone from that agency on the commission in order to have some
weight with the Army Corps of Engineers and National Marine Fisheries.



Upon further inquiry from Senator Kennedy, Senator Keough stated there
are a variety of sources for mitigation funds that are ongoing through the
construction the Albany Falls Dam and also through the Northwest Power
Planning Council or Bonneville Power Administration. If the commission
was established, it might be able to avail themselves of some of those
funds. Senator Kennedy inquired if there would be any effort to use the
mitigation funds now on deposit in any of the special accounts under the
control of the Department of Fish and Game. Senator Keough stated there
was no effort to use those funds nor is there an effort in connection with
the funds from Avista on Cabinet Gorge Dam.



Bogert stated the mitigation monies are going into conservation projects
and the state agencies impacted by the legislation have contractual
obligations. He noted the Department of Fish and Game has contractual
obligations with the Bonneville Power Administration. The legislation
does not propose to interfere with those contractual obligations. They are
hopeful of including all stakeholders into the commission for the dialogue
to ascertain the types of projects to be funded.



Senator Kennedy further inquired as to the funding sources for the
proposed commission. Bogert stated the legislation does not authorize the
commission to interfere with any contractual relationship with any of the
departments or agencies. He further stated the Attorney General’s opinion
sets that out. There is no intent to breach those contracts. Senator Keough
stated the proposed legislation is to establish a separate fund for the
commission which would not take funds from some places. She stated she
there was not a need to change the legislation.



Chairman Noh inquired whether future funds that would normally go to an
agency as mitigation funds from future relicensing agreements or from
Bonneville Power funds would be available for the new commission.
Bogert responded affirmatively.



Senator Stennett inquired as to why a prohibition on commission
establishment of minimum stream flows is not contained in the legislation.
Bogert stated there were two amendments to the legislation which are
contained in the engrossed version of H 110. Copies of the engrossed
legislation were obtained for the committee.



The first amendment describes the establishment of minimum lake levels.
Keough noted that Idaho law already sets out how they are established.
The other amendment changes a “shall” to “may” in regard to membership
of the commission. The reason for the change was because the southern
tip of Lake Pend Oreille is actually in Kootenai County. This would allow
the Governor to appoint citizens that live around the lake regardless of the
county in which they reside.



Senator Stennett inquired as to the term “perpetually appropriated.”
Keough stated monies could come from a variety of sources. Senator
Cameron explained that JFAC could appropriate funds, but is not
mandated to do so. He further explained perpetually appropriated would
have the effect of preventing the commission from the impact of hold
backs or reversions. Any money generated by appropriation or other funds
would stay in the commission’s control and there would not need to be
additional spending authority.



Time having expired; the discussion was continued to Wednesday, March
12, 2003. The meeting was adjourned at 3:05 p.m.






DATE: March 12, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Schroeder, Burtenshaw,
Williams, Brandt, Little, Stennett,
MEMBERS

EXCUSED:

Senators Cameron and Kennedy excused.
The meeting was called to order by Chairman Noh at 1:40 P.M..
H 67 Rick Collignon, Director, Department of Parks and Recreation, explained
H 67 is legislation relating to species conservation, specifically native wild
plants. The department currently has responsibility and funding for
protection of native wild plants. The department proposes that these
responsibilities and funding be transferred to the Department of Fish and
Game. He noted the Department of Fish and Game currently operates the
Conservation Data Center which maintains inventories of plants. He
stated the staff at Department of Fish and Game has the expertise in this
area. The proposed change by H 67 will avoid unnecessary duplication of
responsibilities. Funds allocated to Department of Parks and Recreation
for this purpose would be shifted to the Department of Fish and Game.



Upon inquiry from Senator Pearce, Collignon responded the oversight and
management of the fifteen plant species on the list will be officially turned
over to the Department of Fish and Game. He noted, through an
agreement, between the departments this was already taking place. The
legislation would simply clarify and officially shift the oversight and
management and would omit the Department of Parks and Recreation
from the process.



David Hensley, Office of Species Conservation, stated OSC supports the
legislation.



Virgil Moore, Department of Fish and Game, stated upon inquiry from
Senator Stennett, the department would process the list of species through
the Fish and Game Commission with the management planning process.
This would mean the list of species of concern would be included
specifically in the management plan, would go through the public process
to the Commission through the Governor’s Office for review legislation is
then proposed annual for Legislative approval. There would essentially be
no change from the current process.



Roger Fuhriman, Department of Fish and Game, upon inquiry from
Senator Pearce, stated the legislation has been considered and is supported
by the Commission and the Director’s Office. He noted the same issue has
been recommended by the Governor’s Blue Ribbon Task Force.

Motion by Senator Pearce to send H 67 to the floor with a do pass
recommendation; seconded by Senator Williams. Motion carried.
H 110aa

continuation

Senator Keough presented to the committee proposed amendments to H
110aa (copy is attached), which would stagger the terms of the five
appointed members of the commission. Additionally, the amendments add
the Department of Fish and Game and Department of Lands as agencies
with which the commission would have authority to work. Monies in the
fund “may” consist of appropriations was another proposed amendment.



After discussion by the Committee, Senator Burtenshaw proposed deletion
of “are perpetually appropriated and” language on line 16, page 2, of the
proposed amendments to H 110aa. Senator Keough stated she had no
objection to the deletion.

Motion by Senator Brandt to send H 110aa to the fourteenth order;
seconded by Senator Williams. Motion carried; Senator Stennett voting
nay.
H 64aa Collignon reported that H 64aa clarifies the identification number on
snowmobiles shall be attached. Additionally, the legislation would
authorize the director of the department to approve exemptions to the rule
requiring nonresident snowmobilers to purchase a nonresident user
certificate in order to operate within the state. This would allow
snowmobilers who utilize trails in a neighboring state that enter into Idaho
to use the Idaho portion of the trails without purchasing a nonresident
certificate. The original legislation was amended in the House as set forth
in section (4) on page two of H 64. (A copy is attached.)



Sandra Mitchell, representing State Snowmobile Association,

Motion by Senator Brandt to send H 64aa to the fourteenth order;
seconded by Senator Burtenshaw. Motion carried.
There being no further matters to come before the Committee, the meeting
was adjourned at 2:30 P.M.






DATE: March 17, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Schroeder, Burtenshaw,
Williams, Brandt, Little, Stennett, Kennedy
MEMBERS
ABSENT:
Senator Cameron absent.
The meeting was called to order by Chairman Noh at 1:40 p.m.
H 4 Steve Barton, Department of Fish and Game, explained H 4 would
eliminate requirements for the Department of Fish and Game to compile
and disburse a list of persons who have been denied hunting and/or fishing
privileges. The information is now part of the Department of Fish and
Games’ computerized system and is provided to conservation officers.
The requirement for the printed list is obsolete. The legislation would
allow the department to more efficiently enforce license revocations and
not burden the license vendors.
Motion by Senator Little to send H 4 to the floor with a do pass
recommendation; seconded by Senator Burtenshaw. Motion carried.
H 295 Steve Tobiason, attorney for the Idaho Outfitters and Guides Licensing
Board, explained H 295 would allow the Board to obtain injunctive relief
from the district court for violations of the Outfitters and Guides Licensing
Act. The legislation also clarifies the authority of the Board to pursue
administrative action concerning a lapsed license. The legislation would
restrict the scope of the two-year statute of limitations on civil actions
filed by the Board. He noted the legislation is supported by the Outfitters
and Guides Association. The two main issues of the legislation address
unlicenced commercial outfitting and guiding and a lapsed license. The
legislation would clarify procedures if the Board elects to file a civil action
for injunctive relief. Injunction relief can only be obtained through the
district court. Upon inquiry from the committee, Tobiason explained the
judicial process and explained the various terminologies pertaining to the
various types of injunctive relief that could be issued by the court.



The issue of a lapsed license and a violation need to be addressed because
by the time the alleged violation is investigated, the license could have
lapsed or expire. The legislation would allow jurisdiction to continue with
the Board. He noted some may seek to be relicensed in the future, but
after they sit out for a time and there has not been a determination on the
alleged violation, the Board would only have a complaint without an
investigation. Additionally, the legislation changes the statute of
limitations to a time either from the date of violation or the date of a
conviction. Upon inquiry, Tobiason stated the advantage of being able to
obtain injunctive relief would provide for an immediate remedy which is
not afforded under the current process.



Jake Howard, Executive Director, Idaho Outfitters and Guides Licensing
Board, stated there are approximately 430 outfitters in the state. There are
not a large number of unlicenced outfitters, but they do receive a number
of complaints. A lot of the complaints are unfounded because people do
not understand or distinguish between a personal trip and a guiding trip.
There are a few operators from other states that operate within Idaho. He
estimated there were ten to fifteen last year. Those complaints have not
been pursued because a case has not been developed, but the ability to get
injunctive relief will assist in investigation and to stop the activity.



Howard noted that the problem of alleged violations by a licensed operator
is also of concern. One case involves approximately twenty-five alleged
fish and game violations. The operator could let his license lapse and then
the Board would not have jurisdiction under the present statutes. The
proposed legislation would continue the Board’s jurisdiction and allow for
injunctive relief through the courts.



Brad Hoaglun, lobbyist, representing Outfitters and Guides Association,

stated the organization supports the legislation. He noted the association
feels the advantage of injunctive relief is a minimum authority the Board
should be able to exercise. The ability of the Board to expedite and handle
the alleged violations gives the industry a better perception by the public.

Motion by Senator Kennedy to send H 295 to the floor with a do pass
recommendation; seconded by Senator Brandt. Motion carried.
Jim Unsworth, biologist, Department of Fish and Game, informed the
Committee of the Access Idaho program which has now been renamed
Access Yes so as to avoid confusion with the state information web site.



Access Yes is a proposal developed by the Fish and Game Advisory
Committee, appointed by the Department of Fish and Game and the
Department of Agriculture, to review depredation, land owner
appreciation permits and Access Yes. The advisory committee has been
working on Access Yes for three years by reviewing programs from
sixteen different states. The sample programs pay land owners who allow
hunters and fisherman access to their land. The types of access relate to
upland birds, big game hunting, fishing and also to access private land to
public lands. The program would be voluntary and landowners would bid
into the program. He noted this is similar to some of the agriculture
programs of USDA. Landowner compensations could be direct funds,
trade for conservation development or access development on the land.
The land would be leased from the landowners. Landowners would have
an opportunity each December to enroll in the program. A landowner
proposal would be submitted by the landowners to the department which
would make an evaluation based on historic knowledge or onsite review.
The proposals would then be evaluated by a five-member sportsman’s
advisory team in each region. Proposals would be evaluated on a variety
of issues: amount of acreage, type of access, the hunter numbers, and
regional needs. After the bids are selected, prioritized and funded the
properties would be identified on the internet and in an informational
brochure. The properties would be statewide. There would be different
kinds of projects in each of the regions. It is anticipated the funding would
be split in half, with one-half equally divided among the regions, one-quarter of the funds would be divided based on the number of properties
enrolled, and the remaining one-quarter would be held for administrative
purposes and any unfunded regional projects.



He noted the programs in other states cost between $1-2,000,000 which
are the proposed levels for Idaho. The Fish and Game Advisory
Committee proposes the sale of lottery tags over the possum system with
marketing by specific interest groups. Another funding source could be a
small across the board fee increase or a habitat stamp. He noted the
habitat stamp is a good source because it is a user based. Legislation
would be needed next session. Presently existing funds would be used to
begin the program. One source would be the $150,000 generated from the
secondary depredation account that goes into the designated funds and
also from year end savings from a variety of programs. He estimates the
need for approximately $250,000 for this year for the program.



Some of the sample proposals are 1200 acres in the Panhandle for white-tailed deer and turkey hunting; 14,500 acres of pheasant hunting land in
the Genesee-Lewiston area bid at $1.50 per acre which would be used to
hire a land manager; in the Emmett and Squaw Butte area use would be for
upland bird, mule deer, and elk hunting; and Owyhee County, access to
private land through public land. He noted the bids range from $1 to $5 an
acre, but a significant group was free with some help in developing
parking or fence crossovers. A large grazing association in the Shoshone
Basin, south of Twin Falls, 10,200 acres bid $.25 per acre for sage grouse
and antelope hunting access. From Rockland to Preston, a couple miles of
Bear River, would provide fishing access. Additionally there are 4,000
acres interspersed with 4,000 acres of school land and 20,000 acres in the
Blue Ridge area for access. In the Idaho Falls area, about 16,000 acres in
the Tex Creek area could be for grouse and mule deer hunting. In the
Salmon region, there are bids for river access to the Salmon for steelhead
and salmon fishing. The total acreage is approximately 70,000 acres.



Upon inquiry from Senator Little, Unsworth stated under current statutes
there is an exception for leasing to the state in relation to liability. He
stated an Attorney General’s opinion reports that liability should not be a
concern. Upon further inquiry, Unsworth stated the land access is not
wide open as the landowner may bid with any restrictions. He noted some
restrictions on the sample bids were walk-in only, vehicles restricted to
designated routes, and five hunters per week with check-in with a
landowner.

Unsworth then informed the committee on the cooperative wildlife disease
program and the Caine Center. The program was created by the
Legislature several years ago to address the wildlife-domestic diseases
concerns throughout the state. One veterinarian position was funded by
the Department of Agriculture and the Department of Fish and Game to
begin a cooperative joint project through the Caine Center. There is a
second veterinarian funded by the Department of Fish and Game as of last
fall. There are three support staffs at the wildlife health laboratory. The
Department of Fish and Game’s laboratory is near the Caine Center. It
was a University of Idaho facility, but the department has a hundred-year
lease from the University of Idaho. The department’s facilities for wild
animals disease research includes big horn sheep, elk and buffalo. Part of
the role of the facility is to work with Caine Veterinary Teaching
Laboratory on specific research projects. Research projects dealing with
domestic and some wildlife interfaces are evaluated annually by
representatives of various departments and the University of Idaho. There
is additionally some work with domestic goats and whether there can be
disease transmission between Big Horn sheep and goats. Long-term
monitoring of elk with the brucellosis along with some contraception work
with bison are other programs underway. He noted the facility works
closely with the Department of Agriculture.



Upon inquiry from Chairman Noh, Unsworth stated the Department of
Fish and Game is doing an internal review of the wildlife health lab. The
functions of the lab and how it interacts with department employees and
with the Department of Agriculture, as well as if the department should be
doing live animal research at the facility are some of the issues under
review. He noted the facilities are expensive to maintain and a good
portion of funding is one-time monies. The veterinarians must continually
seek funding from other areas. Being able to work with the Department of
Agriculture has facilitated better work on projects over the last several
years. They are currently working on chronic wasting disease, brucellosis
and West Nile virus. The Department of Fish and Game is determining
from employees how the laboratory is being used and how it could be used
differently. He noted the conservation officers use the lab for forensic
purposes and for DNA analysis. The internal review is about 50 percent
completed at this time.



Senator Williams inquired about the feasibility of joint facilities.
Unsworth noted there is probably some duplication of efforts. The
veterinary closely monitors issues for both departments. In relation to
animal holding facilities, there is a potential for joint facilities but budget
considerations do not permit such at this time. He noted it is expensive to
maintain individual facilities.



Chairman Noh noted the lease by the Department of Fish and Game from
the University of Idaho was entered into without the knowledge of the
Department of Agriculture or the Legislature by the Director ten years
ago. He stated this would be a good time for a review of facilities.
Unsworth noted the majority of research is in connection with the
Department of Agriculture and the Caine Center. The advantage of having
a separate facility is better control of experiments and there are some
established diseases on the Caine Center premises.

Dr. Bob Hillman, Department of Agriculture, stated there has been
discussion for an improved Department of Agriculture laboratory with the
University of Idaho and the Department of Fish and Game. The Caine
Center lab and the wildlife lab are limited to research but do not have the
staff or equipment to do a lot of diagnostic work. The basic facility is very
old and in need of upgrade, but is limited to what may be done due to
urban expansion. There is a definite need for isolation areas for research.
Another consideration is Homeland Security. USDA began a process of
identifying and upgrading regional laboratories into a national laboratory
network. Certain laboratories would be designated for certain diseases.
Idaho will continue to be involved in brucellosis research because the
laboratory is one of a few in the country that can do this type of research
because of isolation facilities.

John Chatburn, Department of Agriculture, noted the discussions with the
Department of Fish and Game and the University of Idaho, there is a need
a good research facility in Idaho. The Department of Agriculture feels
strongly that the ability to confine animals and complete research projects
must be continued in Idaho.
There being no further matters to come before the Committee, the meeting
was adjourned at 3:00 p.m.






DATE: March 19, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Little, Stennett, Kennedy
MEMBERS

EXCUSED:

Senator Brandt excused.
The meeting was called to order by Chairman Noh at 1:40 p.m.
Jay Biladeau, Department of Lands, stated it is the responsibility of the
Land Board to manage the state endowment trust lands for the maximum
financial return to benefit the beneficiaries of the trust. H83 adds lands to
the code which will provide for long term leasing of those specific parcels.
Long term leasing is a tool which would enable maximizing the financial
return. He stated the Land Board and Tamarack entered into a ten-year
lease on the acreage for a ski hill and golf course. The transaction was a
cumulation of several years of studies, agreements and negotiations with
various investors. He said numerous public meetings and work sessions
were held. In April of 1999, Valley County granted conceptual approval
of the proposal. In September of 1999, the Land Board directed the
Department of Lands to publish a request for proposals on the endowment
lands covered by the application. The only proposal submitted was by
WestRock/Tamarack. A seven-member review committee was appointed
to review the proposal. The committee was composed of representatives
of Valley County, Department of Land, Department of Environmental
Quality, Department of Commerce, Department of Finance, a private ski
consultant and ski hill specialist from the U.S. Forest Service. In February
2001 a refined proposal was submitted downsizing the project and was
reviewed by the committee. A hearing was held by the Land Board in
February 2002 to accept additional public testimony and comments on the
project. He noted the Land Board has worked closely with Valley County
throughout the process. In May 2002, Valley County Planning and Zoning
unanimously approved WestRock/Tamarack’s development plan and
issued conditional use permits to begin development. He noted the lease
and project were approved after many opportunities for public input. In
issuing the lease, the Land Board made a business decision based on their
reviews and studies. The decision maximizes the financial returns to the
beneficiaries of the endowments. The lease is currently for a ten-year
period, but negotiations surrounding the lease and the intent of the lease
are for a long-term project. Biladeau stated terms of the lease provide that
the lease will be automatically extended upon passage of the legislation
authorizing a long term lease for those particular parcels of land. He
stated one of the objectives of the Department of Lands in negotiating the
lease was to require as much up front rental payment as possible. The rent
for the first five years is $200,000 per year, and $400,000 representing the
first two years’ rental was due upon execution of the lease. The remaining
$600,000 for the following three years is due upon legislative approval for
the long term leasing. He noted the rent is structured to provide a greater
return after the first ten years of the lease. The project has a greater
opportunity to succeed under a long term lease. He stated the use of the
endowment land for a ski hill and golf course provide a greater return to
the endowment than the previous use of the land. Biladeau stated the
legislation is needed to assure the success of the development and to help
continue an increase financial return to the endowments. Biladeau
acknowledged in attendance was Kent Nelson, Deputy Attorney General,
who crafted the lease, and Winston Wiggins, Director, Department of
Lands.



Upon inquiry from the committee that approval of the lease would
significantly increase the likelihood of the project succeeding. One of the
primary concerns of some members of the committee is that the approval
by the Legislature of the forty-nine-year lease will be interpreted as an
endorsement of a sound investment or that the investment is likely to
succeed. Biladeau stated the legislation would allow long term leasing for
the land which would give this use of the land a better opportunity to
succeed. He stated the Department of Lands is not endorsing the project.
The lease sets out that the state is not in partnership with the developers.
The lease is a landlord-tenant relationship only. Biladeau noted that an
investor cannot assume that the state is taking a position on the risk or
soundness of the investment.



Senator Cameron inquired as to how many committee members submitted
questions for the Land Board. Chairman Noh stated the committee was
invited to submit questions; three committee members and Chairman Noh
submitted additional questions along with the responses from the three
outside reviewers. Senator Cameron expressed concern that the questions
are portrayed as concerns of the committee when a majority did not submit
concerns. He stated one of the outside reviewers was an opponent of the
project for some time. Cameron stated he did not want to be portrayed as
one who submitted questions. Chairman Noh noted before the questions
were submitted to the Land Board, the Committee had an opportunity to
review and discuss them several times. There has been no indication to
Chairman Noh that a committee member did not want to be associated
with the questions. Chairman Noh stated the questions were forwarded to
the Land Board from the committee and they represent questions which
were raised by the committee members or the outside reviewers.



Senator Stennett stated the lease presented to the Committee can be
amended at any time by the Land Board without legislative review.
Biladeau stated the legislation is not approval of the lease but approval of
the land for long term leasing. The lease has been executed. He noted
long term leasing would be a benefit for the lease, but there could be
modifications if the parties agree. The Land Board has had considerable
experience in dealing with various types of leases and contracts. The lease
is viewed as a landlord-tenant relationship between the Board and the
developer.



Senator Stennett noted the project has been presented on a positive note,
but there is no certainty in the proposal. Biladeau stated the question of
certainty has been addressed as much as possible within the lease by
protecting the endowment and risk reduction while maximizing the return
to the endowment.

Terry Gestrin, Chairman, Valley County Commissioners, supports passage
of the legislation in order that the project may progress. He stated Valley
County has been diligent in their efforts in land use planning on this
project. He noted the state is outside their purview they must enter into
partnership with the Department of Lands to review the project. He stated
one particular question submitted to the Land Board pertains to Valley
County. He noted there have been two sets of consultants that have been
hired for an independent assessment of the impacts. A report was
prepared by CHM2 Hill. The economist was John Church. Dr. Bob Haley
reviewed the impact to schools. A transportation model was prepared by
CHM2 Hill for Valley County for the infrastructure impacts. As a result, a
capital contributions agreement was signed by the developer with Valley
County to provide funding for taxing entities and service providers that
would be impacted prior to the property tax taking effect. He stated there
was funding for the hospitals and the school districts. Tamarack has been
in contact with the taxing entities advising them of the project status so
they can anticipate when impacts will begin. Payments made to those
entities are clearly outlined. He noted the developer’s share of the impact
to the roads and bridges is estimated at 30 percent. There have been more
than 200 staff level meetings with the developers and their advisors, 76
public meetings and hearings with the planning and zoning and Board of
County Commissioners. Through the public hearing process, 99 issues
were identified and resolutions reach on each issue. He noted the
developers have also entered into agreement with the Department of
Environmental Quality, Department of Fish and Game, Department of
Parks and Recreation, Department of Transportation and Department of
Water Resources. There was also an agreement with the U.S. Fish and
Wildlife Service regarding a tree that blew down which contained an
eagle’s nest. He stated Trout Unlimited supports the project. He noted
that the Army Corps of Engineers has issued their 404 wetlands permit.
All the steps have been taken and there is an agreement with the North
Side Sewer District to sewer that side of the reservoir which will assist in
the reduction of the phosphorous level. There is an agreement with the
Idaho State Snowmobile Association to mitigate impacts that may result to
the snowmobile community. Gestrin stated Valley County is working
with the Department of Lands in the coordination of activities when
construction begins to assure compliance and protect the state’s interests
as set forth in the lease and the conditional use permit. He noted Valley
County has improved their building ordinances in the last five years as a
result of the project. Valley County’s Building Department has the ability
to assess a fee for the building permit so experts can be hired to review the
plans and have an inspector on the project site in partnership with the
Department of Lands. Gestrin stated the project has had more studies and
more conditions tied to it than any other project in the state. He noted now
is the time to see if the project will actually work. As a local elected
official of Valley County, he appreciates the efforts of the Committee.



Chairman Noh noted the email from Archie Banbury, Valley County
Assessor (a copy of which is attached) stating the exemption lost by
Tamarack is for timber, but the exemption for agricultural is on 398 plus
acres in Valley County. Banbury stated the land, if subdivided, would
qualify for partial exemption under H 488.



Gestrin stated he agrees with the assessment, but noted there has not been
a final plat filed. He further stated that if the project goes forward, the
potential to double the tax base in Valley County, even though the project
has been downsized from its original concept. He noted Valley County
has taken a conservative approach to the revenue projection.



Chairman Noh indicated the due diligence conducted by the Land Board
on the project in relationship to the major investors is a Dun & Bradstreet
report (a copy of which is attached) from 1999 and includes information to
1966 on a major enterprise in Mexico by Mr. Afif. Chairman Noh
inquired if there was any other due diligence done on the backgrounds of
the major investors. Gestrin stated he had no formal information on the
assets of the principals. He stated he has met the principals and is aware
of those reports and the assets in Mexico. The review by the Valley
County Board of Commissioners is based on land use planning not success
or failure of the project.



Chairman Noh noted that the state and the Legislature, by approving the
legislation, are not endorsing the project for success or failure. Gestrin
noted that Valley County is in the same position and agrees with the
assessment.



Senator Stennett inquired as to an easement to the property and if the
county would be maintaining the road across private property to the state
property. Gestrin stated the county has not been involved in that process.
The county would not be involved in building the road but would only be
involved in its maintenance if it became a public road. Valley County
would only accept the road if the road met the county standards.



Upon inquiry from Senator Little, Gestrin stated the developers paid to
cover the impacts until the property tax increases take effect. Most of the
increases were based on new construction and not necessarily on the land
value. The land value is an unknown at this time. He noted the school
districts were comfortable with the up front funding.

Representative Chuck Cuddy informed the committee that fifteen years
ago he negotiated a long term lease with the Land Board on a hydro
project. He stated the negotiations involved a complaint in one hand and a
final offer in the other. The long term lease was necessary so that
financing for the project would be available. The project has been on line
now for fifteen years. There is a kilowatt hour tax paid to the state which
far offsets the amount the timber would have earned.
Ric Branch, Indian Mountain Cattle and Horse Association, provided to a
committee a statement by his father (a copy of which is attached). Branch
stated he is the fifth generation cattle rancher in Idaho. His family has
been in Idaho since 1890 and has had grazing allotments since 1917. He
noted U.S. Senator Larry Craig’s Grandfather was one of the earlier
permitees. They currently lease 640 acres of state land on the top of West
Mountain and on the west side. Some of this land is included in
WestRock’s lease, but they have the lease until December 2005. He noted
the section originated with Drew Little in 1936, who was the first one to
lease the land. It is possible that his father, Andy Little, had the land prior
to that time. Indian Mountain bought it from Dwight Johnson, who
bought it from Vern Little in 1965. Branch’s Father bought it from the
Johnson Estate in 1973. He noted there was a significant change to the
allotment in 1973 when a fence was removed allowing access to the east
side of the mountain almost to Cascade Reservoir. The section included in
the lease has excellent grass with some scrub brush, but there is no water
on it. The only water on the mountain has been developed by the
permitees. Stock ponds were built to keep the cattle back away from the
fences. He noted the four other school sections were traded to the Forest
Service for the Hillman land by Brownlee Reservoir for a wildlife
management area. The state land is used by them as a deferred pasture
about the middle of August. He noted there is a bull trout critical habitat
in the headwaters of Anderson Creek and the Little Weiser River. The
past two years the Forest Service has requested the cattle be moved by the
tenth of August. About 350 head of cattle are then moved to the state
section and surrounding Forest Service lands which enables access to the
east side of the mountain and away from the critical bull trout habitat. He
noted the grass was of significant value to all the permitees. If the
development occurs, it would impact West Mountain and their allotment.
The forms of activities would severely impact the cattle operation. He
noted there is already a lot of activity on West Mountain with a jeep trail
across the top out to the state section and then toward Council and a
logging road which goes down to the bottom of the proposed ski hill.
Their allotment has 1800 head of cattle which will jeopardize their Forest
Service permits and result in a loss to the economic and tax base in
Washington, Adams and Gem counties. There are eleven entities in the
association. He stated the association hopes the forty-nine-year lease
would not be approved, but if approved that the permitees be allowed to
graze on the 640 acres on top and on the backside of the ski hill. He noted
that Don Weilmunster, one of the parties involved in the project, has stated
he would prefer that the association continue to graze the section except
where buildings are constructed. He noted the section is a critical section
to their grazing program.
David Eaton, small business man, Valley County, stated his support for the
project. He noted the project involves a total of 2,124 acres of land
proposed for the lease after eight years and $48,000,000 in costs to date.
The legislation only requests the extension of a ten-year lease along with
payments forty-five times more than the existing lease. The use of the
land would stimulate the economy by the creation of employment. He
noted Valley County has a high unemployment rate. He stated the Land
Board has reviewed the project for the past five years and there have been
many hearings and assessments of the risk. He stated there is a significant
list of organizations that have reviewed the project. He noted the project
has improved over the past eight years while the way of life in Valley
County has not changed. He stated he moved to McCall nine years ago,
225 businesses have opened and closed in that time; 6 of them in the last
thirty days. The quality of life in Valley County will be impacted by the
project. He hopes the committee endorses the legislation for economic
growth and development.



Chairman Noh noted the statement by Mr. Eaton that an affirmative vote
by the Legislature would give the area some assurances that the economy
will improve is inaccurate. The vote is only an expression that the school
endowment funds will benefit and not a judgment as to whether economic
conditions are going to improve or not improve.

Dick Rush, Idaho Association of Commerce and Industry, supports the
legislation. He stated investors and lenders would be hesitant to
participate if the project has only a ten-year lease which would diminish
the success of the project.
Lincoln Hart, representing a group of concerned citizens of Valley
County, stated their opposition. He noted everything he states is supported
by documentation and has been presented to the state agencies for
examination in the WestRock project. He stated they appreciated the
questions submitted to the Land Board, but are disappointed in the Land
Board’s responses. They believe the ski hill proposal for phase one is not
commercially viable as required by the lease. He noted the lease requires
one lift to the top of the mountain, but WestRock maintains they are not
required by any language in the lease to put a ski lift to the top of the
mountain but are to provide skiing from the top of the mountain. He
stated this is an evasion of the spirit of the lease, if not technically
objectionable. The proposed project does not sustain the viability of the
lease because the proposal states a minimum development is necessary to
sustain the viability of the lease and is estimated by establishing the
minimum scope of the project components necessary to attract a certain
number of guests on a year round basis to support the project. He noted
WestRock further states that the proposed project that is necessary to
sustain the viability of the lease is a substantial lift system, a 18-hole golf
course, buildings, etc., but these are not provided for in phase one of the
project. He noted the project is committed to only building a 9-hole golf
course in phase one. The additional nine holes would be installed in phase
two. WestRock has also testified in Valley County, the only additional ski
amenities would be one additional lift for the entire development. Phase
one of the project will be half the size of Brundage Mountain. In addition,
he noted WestRock does not adhere to the terms of the proposal as it was
submitted to the Land Board. What is now proposed invalidates the
feasibility and financial studies and the revenue projections. All the
projections are diminished by the reduction of the proposed project. The
state should simply enforce the terms of the proposal as was submitted by
WestRock to the Land Board and which was approved by the Land Board.
The Department of Lands and the Land Board is not being asked to micro
manage the day-to-day decisions, but simply enforce the terms of the
proposal as was submitted. The new proposal negates the facts and
information originally submitted.



Hart further stated that reconsideration of the financial capabilities of the
WestRock/Tamarack is necessary. Currently WestRock has no financing.
Every bit of financial data submitted with the proposal is no longer valid.
He stated there is a need for more answers and a reassessment of the
current proposal.

There being no further matters to come before the Committee, the meeting
was adjourned at 3:10 p.m.






DATE: March 21, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Kennedy
MEMBERS
ABSENT:
Senator Stennett excused.
MINUTES: Motion by Senator Pearce to approve the minutes of February 21, 2003;
seconded by Senator Burtenshaw. Motion carried.



Motion by Senator Cameron to approve the minutes of February 24, 2003;
seconded by Senator Brandt. Motion carried.



Motion by Senator Cameron to approve the minutes of February 26, 2003;
seconded by Senator Pearce. Motion carried.



Motion by Senator Burtenshaw to approve the minutes of February 28,
2003; seconded by Senator Williams. Motion carried.



Motion by Senator Williams to approve the minutes of March 3, 2003;
seconded by Senator Burtenshaw. Motion carried.

H 149 Representative Mary Lou Shepard explained H 149 which is legislation to
revise the duties of the Board of Commissioners and declaring an
emergency. She noted the Coeur d’Alene Basin Commission was
established to oversee the cleanup of the basin area. She noted the Basin
Commission comprises a county commissioner from Benewah, Kootenai,
and Shoshone and a representative from the federal government appointed
by the President of the United States, a representative from the Coeur
d’Alene Tribe, a representative from the state of Washington, and a
representative from the state of Idaho. Representing Idaho on the
commission is Steve Allred, Director, Department of Environmental
Quality. She noted there was a question in the original legislation whether
each of the three county commissioners would have a vote. This would
allow each county commissioner to vote on all issues including the annual
plan and the budget. All parties agreed that the law needed to be changed,
but the veto vote would remain the same as before. The three county
commissioners together will have a single vote. The state of Washington
would not have a veto vote and that is not changed. She noted the project
is 90 percent funded by the federal government and 10 percent by the state
through the Department of Environmental Quality. Local control allows
the letting of bids can be set at a cost which will allow local contractors to
compete. She stated the importance is because much of the Coeur d’Alene
Basin area has economic concerns. An additional change to satisfy federal
requirements is that the trust of the commission shall be to their respective
entities. She noted this is the first effort in the United States to conduct a
superfund project in this manner. The project to date has worked well
through the combined efforts of local interests for the cleanup’s success.



Steve Allred, Director, Department of Environmental Quality, informed
the Committee that the changes in regard to the voting were intended to be
in the legislation last session. The legislation now addresses that proposed
change. The change has been agreed to in a memorandum of
understanding among all the parties on the commission. It provides that
all of the members vote on the plan. He stated he is not aware of any
controversy on that issue. He noted the federal government has taken the
position that because the federal commissioner, appointed by the President
and is also the regional administrator of the Environmental Protection
Agency, there is a conflict interest from a fiduciary responsibility between
EPA, which provides the majority funding and his responsibility on the
commission. The issue was negotiated with the Department of Justice so
that the fiduciary responsibility is to the appointing authority.



Motion by Senator Pearce to send H 149 to the floor with a do pass
recommendation; seconded by Senator Brandt. Motion carried.

Rick Collignon, Director, Department of Parks and Recreation, informed
the Committee on the status of the all-terrain vehicle project. The fifth of
six public hearings was held to discuss management strategies. The
department, along with the Forest Service and Bureau of Land
Management, has been developing a management strategy for the existing
roads and trails using the department’s resources for additional
management to some of the critical sections of the proposed trails. The
informational meetings on the proposed management are based on an area
in Custer, Butte and Lemhi counties. The proposal creates an off road
vehicle trail system which connects the cities of Challis, Mackay and Arco
by the using the existing routes on BLM and Forest Service lands. There
would need to be additional signage, mapping and educational efforts to
improve user compliance. Statewide presentations have indicated many
people are concerned about designating routes as the closing off of public
access on some lesser used routes. He noted there are some people who
are adamantly opposed to off road vehicles or mechanized use of public
lands whatsoever. Senator Stennett facilitated the meeting and was of
assistance at the meeting. The comments and general sentiment from the
public were that there was a need to for additional management of off road
vehicles. He noted there are some disagreement and strong feelings about
whose backyard this project should be in. At the conclusion of the
hearing, there was a better understanding of the complexity of the issue.
He noted the Parks and Recreation Board still support the project.
Collignon stated there is to be one more meeting in Pocatello around the
first of April. He anticipates at the conclusion of the public hearings
process, more than 500 people will have participated. There are more than
300 written comments on the project. The Department of Parks and
Recreation will move forward on the project.
H 65 Chairman Noh welcomed Senator Wilson, replacing Senator Calabretta.



Collignon stated H 65 revises the list of state parks under the jurisdiction
of the Department of Parks and Recreation. He noted the eight sites to be
added to the list have not been added to the list, but have been added onto
responsibilities for the department. The state parks to be added are Trails
to the Coeur d’Alenes, Coeur d’Alene Lake Parkway State Park, Box
Canyon, Billingsley Creek, Glade Creek State Park, Ashton-Tetonia Trail
State Park, Land of the Yankee Fork State Park, and Castle Rocks State
Park. Old Mission State Park will be renamed to Coeur d’Alene’s Old
Mission State Park because the ownership of the land changed.
Additionally, the Packer John Cabin site in Adams County is no longer a
state park.



Collignon provided to the committee a copy of the proposed amendment
to the legislation removing the word “abandoned” from the legislation
because, according to an Attorney General opinion, the legal definition of
the word does not fit the intended use of the word. The word “abandoned”
from lines 37 and 44 on page two of the bill.



Chairman Noh noted Senator Calabretta has expressed concern regarding
trespass on private lands adjoining the trail, as well as lands with high lead
content. Calabretta had indicated by the creation of a state park it would
invite people using the trail to stray away from the trails. She expressed
concern and a desire to minimize the potential problem.



Collignon stated the issue of whether or not the department has more or
less liability does not depend on the name or kind of area. The
department’s legal counsel has stated the risk to the department does not
change with respect to the name. The responsibilities are with the state
and the department has the management responsibility for the state. There
is no more risk or limit the risk.



Motion by Senator Burtenshaw to send H 65 to the fourteenth order for
amendment as proposed; seconded by Senator Cameron. Motion carried.

Collignon then informed the committee that the fact sheet listing all of the
state parks was submitted to JFAC in conjunction with the proposed
budget. The revenue column comprises all revenue sources. The
difference between the two is what the general fund supports. The Yankee
Fork is an example of a park that has no campground and consists of a
visitor center along with a management agreement with the Forest Service.
The only revenue source there is from book sales in the visitor center. In
parks like Yankee Fork, the department, through the off highway
management proposal in Custer, Lemhi and Butte counties, would allocate
some of the management costs which could then be supported by
dedicated funds.



Collignon noted the situation in state parks is that some parks are purely
resource parks that are not intended to generate high recreation volumes
and do not have a significant revenue stream. That is appropriate, but
there are also parks that are major revenue generators from camping and
entrance fees. The system is viewed as a balance. The balance state wide
with the current budget is 20 percent general funds supporting an agency
with 80 percent from dedicated or self-generating revenues. The
department is reviewing possibilities for increasing the self-generating
revenues such as though camping cabins.

There being no further matters to come before the Committee, the meeting
was adjourned at 2:30 p.m.






DATE: March 24, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Brandt, Little, Stennett, Kennedy
MEMBERS

EXCUSED:

Senate Williams absent.
The meeting was called to order by Chairman Noh at 1:40 p.m.
H 273 Mark Benson, Director, Public Affairs, Potlatch Corporation, Lewiston,
explained H 273 is legislation regarding recreational trespass and to
provide limitation of liability of landowners for land subject to a
conservation easement to any governmental entity or nonprofit
organization. He noted the legislation extends the liability protections to
a private landowner who conveys public access through a conservation
easement. Currently, if the lands are open to public access there is a
protection from public liability from someone using the lands. If there is a
charge to use the lands, the liability protection does not apply. He noted
the current law does not address conservation easement. Potlatch, through
a conservation easement, intends to grant public access and seeks the same
liability protections where there is no charge to the public. He noted the
original intent of the law was to allow private landowners to open their
property for public access. The legislation continues that intent. One of
the values of Potlatch lands to the state is the use by the citizens. He noted
even though Potlatch will receive a value for the conservation easement,
the public would have access as opposed to the access being reserved to a
private entity.



Chairman Noh noted Lynn Tominaga of Idaho Ground Water
Appropriators; Jane Gorsuch of Intermountain Forest Products; Dick
Rush of Idaho Association of Commerce and Industry; Roger Fuhriman,
Department of Fish and Game, have indicated their support of H 273.



Motion by Senator Little to send H 273 to the floor with a do pass
recommendation; seconded by Senator Stennett. Motion carried



Benson presented a slide presentation to the Committee explaining the
background for the proposed legislation. He noted the direction Potlatch
is taking in the new area of working forest conservation easements. It is
the goal of Potlatch to continue forest management along with the
preservation of activities that are rapidly becoming very significant in the
state. He noted Potlatch owns 2.2 million acres of land between St.
Maries and Kamiah of which Potlatch manages 670,000 acres. Potlatch
has entered into a partnership with the Trust for Public Lands to utilize
their expertise for conservation easements and the associated funding. He
noted the Department of Lands, the U.S. Forest Service, north Idaho
communities, conservation groups, tribes and the wood products industry
have been supportive of this endeavor. Potlatch anticipates other land
owners will be considering conservation easements in the future. Potlatch
has publicly stated 600,000 acres are candidate acres for conservation
easements. What happens over the next few years will determine how
much of that land is placed into conservation easements. Conservation
easements would convey development rights, public access and special
forest management prescriptions. The monetary value of the conservation
easements could be significant. In a five or a six-year time frame, Potlatch
would put large parcels of land into conservation easements. The natural
resources available on Potlatch lands are fisheries, sport fishing,
anadromous streams, fresh water streams, big game wildlife, thousands of
miles of riparian areas and many acres of wetlands areas. The recreation
available on Potlatch land is multifaceted with hunting, mountain biking,
and all kinds of recreation yet to be discovered. People are increasingly
wanting to use the lands because they are nearer to communities than the
national forest lands.



He stated the economic resources derived from the land which has been
owned by Potlatch since 1903 has been a main stay of north-central
Idaho’s economy for many years. He noted the company would celebrate
100 years this year. Potlatch is the largest produce of timber in the state of
Idaho and they desire to manage the lands for that purpose. There are
three production facilities in Idaho: Post Falls, St. Maries and Lewiston.
In addition to the mills operated by Potlatch, many loggers, truckers and
other mills are affected by the presence of Potlatch in North Central Idaho.
Potlatch forest management has grown with the responsibilities that come
with owning a large land base. Potlatch desires to be environmental
responsible and to sustain all of the use of the land.



Potlatch certified their lands through the International Organization
Standardization 1401 standard for environmental management systems. He
noted this is not just for forest land managements it is for anyone having
an environmental consideration in the management of their business. The
certification is for meeting the standards of an international body by
identifying the environmental risks and hazards and placed protocols and
standards in place to assure environmental considerations. Additionally,
Potlatch lands were certified under the sustainable forestry initiative,
which is a specific forestry set of standards. The two certifications
provide to Potlatch a very sound, solid and sustainable forest management
of the lands to move into the conservation easement program. Potlatch is
the first publically traded company to do a comparison of the sustainable
forestry initiative and forest stewardship counsel. Potlatch will have an
open discussion of its performance under these two programs. He noted
this is an aggressive step on the part of Potlatch toward the standard
desired for forest land management.



Potlatch is moving toward conservation easement because much of the
land is located within 100 miles or less of large metropolitan areas and the
lands are increasingly become encroached upon by people who would like
to purchase parcels of land for subdividing. A conservation easement, by
conveying the development rights, will divert the efforts of carving up the
landscape into small parcels of land. When population encroaches upon
the forest, fire suppression becomes a significant issue because of the
importance of saving structures in the forest.



Potlatch contemplates granting their conservation easements to the state of
Idaho. During the past year, Idaho successfully enrolled in the U.S. Forest
Legacy Program. The administrative responsibilities of that program have
been delegated to the Department of Lands. He noted the ten-year-old
federal program, administered by the Forest Service, ha2 33 states enrolled
in the program. The funding the past year for the Forest Legacy Program
was $63,000,000 and in the current budget proposal the amount is
$93,000,000. Congress continues to increase the amount of funding for
the program and each year additional states enroll. He noted the
competition for funding through the program is becoming greater and
greater each year. The funding for conservation easements would be from
the Forest Legacy Program along with other sources. He noted the
easements could be granted to others organizations, but Potlatch has
chosen to work with the state and thus enable participation in the Federal
Legacy Program funding. Part of the requirements of the Forest Legacy
Program requires a 25 percent match which can include an in-kind
donation.



Benson then introduced Dennis Murphy from Potlatch, who assisted in
answering questions from the Committee.

Winston Wiggins, Director, Department of Lands, stated this project is a
new program for the department. Idaho was one of the first states given
the opportunity to enroll in the program. Through a series of public
hearings throughout the state, the citizens did not support the program at
that time. The program has changed and when Potlatch approached the
state a year ago, the program was again reviewed and assessed. The
Department of Lands already administers a significant number of federal
cost-share programs through the Forest Service. He noted the Forest
Stewardship program is delivered through the assistance of the Forest
Stewardship committee. He noted the committee comprises interested
parties that assist and advises the Department of Lands on forest
stewardship issues. There are representatives of counties, universities,
federal and state agencies, private land owners, tribes, conservation groups
and the Trust for Public Lands. The group has been operating in Idaho for
approximately twelve years. The established program is administered by
the department. He noted he has signed criteria for the program. They are
now accepting applications for federal fiscal year 2005. He stated the
department will contract the appraisals to assure that they are equitable.



Senator Little inquired if there had been any official affirmative action by
anyone duly elected by the state of Idaho to take on the project. Wiggins
replied he was not sure that there was. There was not a vote of the State
Board of Land Commissioners to take this on. The office of the Governor
was involved. In the recognition of a liability, Wiggins stated the liability
by the state will be paid by funds from the legacy grant. He noted it is
possible that the Legislature would be asked for resources for personnel
out of federal funds to support the program. Upon further inquiry,
Wiggins stated it was conceivable that there would be litigation for
violation of the terms of an easement. He noted there are significant
penalties within the program to address violations. The funds necessary to
support the program will be federal funds and probably private funds. One
of the uses Potlatch wants to sustain is public use and not all levels of
public use are sustainable. One of the challenges is controlling public
access and use. It will be necessary to determine the number of people
individual areas will be able to handle without incurring abuse. Potlatch
retains the responsibility to sustain all uses.



Ruth Wooding, Lands Forester, U.S. Forest Service, Sawtooth National
Recreation Area, informed the Committee that part of her duties is the
administration of conservation easements. Sawtooth National Recreation
Area has $36,000,000 worth of conservation easements on 18,000 acres.
Conservation easements began thirty years ago with poorly constructed
easements which resulted in some problems in the administration of those
lands. In the last ten years, the contractual requirements for conservation
easements have been revised and now meet administration requirements.
She noted that conservation easements must additionally require that
dispute costs be born by the party conveying the easement. Conservation
easements provide an opportunity and benefit to a generation of land
holders who did not have sufficient funds to protect and keep the land.
There have been problems with second and third generation easement
holders because they don’t always respect the value of the easement which
they have inherited or purchased. Ninety-five percent of the easement
holders are respectful of the easements while 5 percent pushes the limits.
She noted the most recent conservation easements are very protective and
binding contracts.



Upon inquiry, Wooding stated in the first conservation easements, the
landowner got everything the government could not think of. In the
modern contracts, government gets everything the landowner couldn’t
think of. The current easements are reservement deeds where the
government reserves all the interests in the property and nothing is left to
chance. The SNRA was enacted by public law and has private land
regulations. She noted the conservation easements restrict subdivision and
protect all the values of the SNRA. Many of the conservation easements
have public fishing along the banks and the landowner has to protect the
riparian zones of the property if cattle are grazed on the land. The goal is
to protect the overall scenic environment.



Upon inquiry from Senator Stennett, Wooding stated Custer County has
strong attitudes and feelings, but the tax needs of the community have
been somewhat buffered. She noted there is only 4 percent private land in
Custer County. She stated the NRA does not acquire additional lands but
does obtain conservation easements so the taxes still go to the county. The
land stewardship program is a tax-free program for twenty or more acres
because if there is a land management plan the landowner can get a tax
break for ten years. She noted the SNRA is working with state foresters to
determine the private land regulations which will go into the stewardship
contracts. Over the years, the tax issue becomes significant when the third
generation has ownership of the land. There are no safeguards in place for
the payment of taxes in those instances where they cannot or are not paid.
There has been discussion regarding the establishment of a slush fund with
the initial conservation easement to meet the future tax requirements. She
noted under zoning classifications the property is zoned agricultural,
residential or commercial and then taxed according to those
classifications.

Will Whalen, Director of Government Relations in Idaho for The Nature
Conservancy, provided to the Committee a copy of an article from the
New York Times and his written statement for the record. (The copies
are attached.) Conservation easements are a tool in the protection of
habitats. One of the advantages is to keep land in private ownership and
keep the land and the stewardship intact. He noted a well-defined
conservation easement helps to maintain the agricultural and ranching
economy in an area. Whalen stated that in the Picabo area into the Wood
River Valley there are ranches and farms making a rapid transition to strip
development and major housing sites. However, he noted in the Silver
Creek Valley the ranches and farms in that area are still intact with
conservation easements. Conservation easements in Idaho are voluntary
actions that do not change the tax status of the land. As the area moves
from a ranching or farming use to other uses, there is a significant
environmental impact. He noted the programs growth in Idaho is
significant because many of the timber companies have been redefining
management for other potential uses.



Upon inquiry from the committee, Whalen stated the Internal Revenue
Service has specific rules regarding tax benefits in regard to conservation
easements. The easements must show specific purposes and the extent.
The Nature Conservancy must enforce the easements so there is not an
impact to the organization’s tax status.



David Genter, Director for the Northern Rockies Region of the Trust of
Public Lands, Montana, noted their organization has assisted the state in
the development and implementation of the Forest Legacy Program. The
catalyst for Idaho’s participation a year ago was a letter from the Governor
to the Chief of the U.S. Forest Service requesting that Idaho be enrolled in
the program. He noted there were seven states vying for enrollment in the
program and Idaho was the only state to successfully be considered. There
has been some initial startup money this year. The program is very
positively received and an effective program stemming the conversion of
forest lands to non forest uses.

Senator Kennedy inquired as to the status of a hearing on the
WestRock/Tamarck project because he has concerns he would like to have
addressed. Additionally, he would like some reassurance that the
Department of Lands has satisfactorily evaluated and protected the state
from liability and can satisfactorily perform obligations under the lease
agreement.



Senator Cameron stated he was concerned about the disclosure of financial
documents to the public and competitors. The documents are available to
the committee for private review upon signing a statement of non
disclosure. He stated he had not a problem with addressing concerns
through a letter of legislative intent.



Senator Little stated it is the not Legislature’s responsibility to guarantee
that the project is successful, but the Legislature does have the
responsibility to assure that the state’s funds are protected and the assets
are protected. The State Land Board should assure that the state will be
not be jeopardizing the resources for the long term maximum yield.

There being no further matters to come before the Committee, the meeting
was adjourned at 3:10 p.m.






DATE: March 26, 2003
TIME: 1:30 p.m.
PLACE: Gold Room
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, Kennedy
The meeting was called to order by Chairman Noh at 1:35 p.m.



Chairman Noh stated the meeting was an informational session with well-qualified water attorneys in connection with H 284 and the application of
the local public interest criteria in water rights administration. Chairman
acknowledged Chairman Representative Bert Stevenson and the
background of the proposed legislation. He noted there have been
concerns expressed over the past several years by the dairy industry and
others water users that there have been legal expansion in the application
of the local public interest criteria. There has been legislation introduced
over the past two years which would have made radical changes to the
local public interest criteria. Clive Strong, Deputy Attorney General, was
asked to review and draft proposed legislation that is intended to leave in
place all of the provisions as set forth in Shokal v. Dunn, 109 Idaho 330
(S.Ct. 1985). Additionally, Strong was requested to determine if there
would be added economic risks and the degree to which the local public
interest criteria would continue to provide a maximum of public
participation in the processes. Concern was expressed that larger
economic interests not move water across basins or out of state, that local
public interest is well protected and there are intended consequences.

Norm Semanko, Idaho Water Users Association, stated the law has been in
place for more than twenty-five years and case law has developed over
time. He provided handouts to the Committee (copies are attached). The
local public interest criteria were added to the water code in 1978, and,
thus expanded the scope of inquiry by the Department of Water Resources
for new water right or transfer of a water right. Originally the only
consideration was whether the proposed change in use would injure
another water right. In addition, in the 1970’s there was a growing concern
for the wider impacts on the water resources, such as recreation, fishing,
and aesthetic values. Those requirements and others resulted in the
addition of the local public interest criteria. Additional concerns at that
time were the potential impacts of water being transferred out of state and
transferring water between hydrologic basins. The local public interest
concept in regard to the proposed use by all water users, not just those
with water rights, has been in the water code for twenty-five years. In the
1985 Supreme Court case of Shokal v. Dunn, the issue was whether water
quality had to be considered by the Department of Water Resources when
considering an application. At that time the definition of local public
interest was interpreted to mean the area that was directly impacted. He
noted the Supreme Court ruled that local public interest does include water
quality. The Supreme Court further ruled the Department of Health and
Welfare, now the Department of Environment Quality, had the
responsibility to regulate water quality. The Department of Water
Resources, in connection with the local public interest criteria, could not
grant an application which would violate water quality standards. The
Supreme Court further stated that it was appropriate for the Department of
Water Resources to condition the water right on obtaining the relevant
permits from DEQ for water quality. He noted this has worked well for
some time. In the past couple of years there has been a change in case
law. The district court in Twin Falls recently held that local public interest
can mean any locally important factor even without direct reference to the
use of water. If the director of DWR has jurisdiction over any local public
interest factor, then the director has jurisdiction over everything that the
DWR has traditionally reviewed along with considerations by the county,
DEQ, and the highway district. He stated this factor has become a very
serious problem. The case bringing these factors to attention was the
K&W Dairy case in which local public interest issues were raised by the
protestant included ground water issues, as well as potential odor
problems. After the hearing by DWR, the department approved the
application with the condition that in place of a flushing manure
management system the applicant install a mechanical scraping system for
removing dairy waste in order to reduce odors. When DWR’s decision
was reviewed by the district court, the court held that DWR should have
determined what an acceptable level of odors is and then measured the
proposed dairy against the standard. He stated this is something to be
handled by the Department of Agriculture or DEQ. The district court
ruled that because DWR has broad jurisdictional grounds because of the
local public interest criteria, DWR cannot satisfy the criteria by requiring
applicant to comply with DA or DEQ. The district court ruled that DWR
cannot sidestep the statutory standard at the transfer or application stage
and pass to another agency for regulation. Now, there is a decision by a
court that all of the factors presented in regard to the local public interest
must be fully considered by DWR, regardless of whether another agency
has complete and full jurisdiction in that area.



Semanko noted another case is the Rocky Mountain Land & Cattle
Company in the Glenns Ferry area. This was a case where the hearing
officer of DWR recommended denial of an application based in part on the
traffic hazards of increased vehicles on a road. This is something the
county should review and did review. He noted the county ultimately
denied the application but it did not stop DWR from having to review the
identical issue of an increase in traffic. All the issues being raised under
the local public interest are important but are not issues that DWR should
be considering. The proposed legislation would specifically recognize
DWR is to review the impacts on the public water resource. The
legislation retains the language stating “the people in the local area
directly affected.” This language is historically significant and must be
retained. The clarification contained in the proposed legislation is “on the
public water resource.” He noted the proposed legislation codifies the
requirements for consideration of local public interest as set forth in the
Shokal v. Dunn case. The director of DWR must review fish and wildlife
habitat, aquatic life, recreation, aesthetic beauty, navigation,
transportation, water quality and alternative use of water. The proposed
legislation is intended to clarify that the local public interest is very broad
when it relates to the impacts on the public water resource, not just water
rights or water supply, but all of the attributes of the public water supply.
Semanko stated the local public interest should be retained as historically
set forth by the Supreme Court.



Additionally, Semanko informed the Committee the legislation does not
eliminate any one’s right to file a protest to a water right application. He
further stated the right to file a protest provides for a hearing before
DWR. If a protest is filed, a hearing will be held. What would be changed
is a clarification for one of the criteria that must be reviewed by the
director of DWR. The applicant must demonstrate that the application is
in the local public interest. Local public interest would mean the impacts
to the people in the area directly affected in the potential impacts on the
water resource and all of the water users in the broadest sense.

Scott Reed, Coeur d’Alene attorney, representing Idaho Conservation
League, stated he was appointed twenty-three years ago by Governor
Evans to represent the environmental interests on the Idaho Water
Resource Board. He stated Reed Hansen and he, the only remaining
members of the 1976 Idaho Water Resource Board, published a guest
opinion in the Idaho Statesman recently. The article provided a history of
the establishment of public interest as the number one policy in the state
water plan. The public interest, modified by the Legislature, added “local”
to the terminology. This was adopted in 1978 and has become part of the
regulations for required consideration in approving water right
applications and water transfers by DWR. The intent and effect of H 284
if adopted would destroy local public interest as intended in the state water
plan. He stated if H 284 is adopted other areas would be affected through
defining local public interest as the interest of people in the area directly
affected by water use and the effects of such use on the public water
resource. H 284 does not take away the direction to consider whether
there is enough water. Reed noted a recent dispute in north Idaho
regarding two power companies to withdraw seven to 10 million gallons
per day from the Rathdrum aquifer. The applications were originally
recommended for denial by the hearing officer as a violation of Idaho
Code Section 42-203a6 without considering other criteria which included
public interest. At the hearing the scope of the testimony offered and
received by the hearing officer was far broader than water availability and
was definitely within the scope of public interest. The applications were
opposed by a broad variety of public interest groups: two labor
organizations, four environmental groups, several chambers of commerce,
a number of businesses, grass seed farmer, and some other individuals.
The hearings were attended by between 80 to 100 people. The expert
witnesses presented by the opponents include two hydrologists, energy
interest authority, a marketing professor from Gonzaga, a climate scientist
from the University of Washington, and a fishery biologist from
Washington Fish and Game Department. If H 284 had been in effect at
that time, most of the experts would have been barred from testifying
along with a major portion of the citizens. He noted because of local
interest, the hearing was lengthy because a multimillion dollar investment
versus the long-term future use of water in the Coeur d’Alene and Spokane
area is dependent was the issue. One of the beneficial outcomes of the
controversy was a determination by DWR in response to petitions for the
creation of a Rathdrum Prairie Ground Water Management Area. Another
beneficial outcome was the action by the Idaho congressional delegation
to secure funding for a study of the aquifer. Local public interest should
be defined as the affairs of the people in the area directly effected by the
proposed use. Reed noted H 284 substitutes water quantity for people and
defines water as the public. He further stated the proposed amendments to
the code is redundant to what is already stated in three ways. He noted H
284 forbids the establishment of minimum stream flow rights under the
local public interest criteria. He stated the legislation is complicated and
difficult to read and understand. He stated, with H 284 a minimum flow
can only be established pursuant to chapter 15, title 42; however, section
42-1501 sets forth as the purpose of the minimum flow is to preserve
water in the public interest and describes stream flows as required for the
protection of fish and wildlife habitat, aquatic life, recreation, aesthetic
beauty, transportation, navigation, and water quality. Reed stated after
reviewing the minimum flow language he believes it is intended to attack a
portion of Shokal v. Dunn which defined public interest. The mandatory
deference to other regulatory agencies has the effect of eliminating the
public from participation. He noted the Legislature last session gave the
Department of Environment Quality regulatory authority over swine and
poultry feed operations, but the public has no voice in rule adoption or in
any enforcement action. There is no general air quality law in Idaho and
no opportunity for the public to voice support or objection to anything that
may affect air quality in a hearing. He stated DEQ has rule making
authority and enforcement authority, but the public is not a participant in
DEQ proceedings relating to air or water quality. Water right application
hearings produce significant public interest and concerns have been few.
He noted the cost savings to the department from elimination of general
public involvement would be relatively insignificant as compared to the
cost of hearings in contested water right applications. The costs could be
compared to the annual appropriation for the Snake River Basin
Adjudication. Idaho citizens care deeply about water. He noted if
conflicts occur between meeting new water uses, the approval or denial of
the application shall consider the public interest including an evaluation of
the beneficial and adverse economic, environmental and social impacts are
set forth in the adopted original state water plan. He stated what the next
use of water will be is an unknown. He noted the public cared before and
cares a lot more now. The present laws work and the proposed legislation
will eliminate the public. Really local public interest is meaningful and
understandable. He urged the committee to oppose the legislation.
Rich Carlson, Filer attorney, stated he was appearing in behalf of the
farmers, ranchers and rural residents who are members of the Idaho Rural
Council. He provided a handout to the committee (a copy is attached)
which provides summary information on some of the cases connected with
the local public interest issue. He stated the cases have significant public
interest elements which will provide evidence that there has not been an
abuse of the public interest doctrine. The Idaho Rural Council and the
public expect government to work for them. He stated they never
anticipated that a government agency would be issuing a permit for an
operation which would be a public nuisance. The public is now very
cynical about any agency of government that tells the public “that’s not
our problem.” When a permit is being issued for an operation or
development with a serious potential to affect water quality or quality of
life, the public expects to be protected. He stated the serious degradation
of air quality is a serious impact, as is the loss of water. Until all
government agencies responsible for public welfare can prove that they
can do the job, no agency, including the Department of Water Resources,
should overlook potential problems that might occur. He quoted Shokal v.
Dunn stating, “It is not the primary job of water resources to protect the
health and welfare of Idaho citizens and visitors. That role is best in the
Department of Health and Welfare, including compliance with water
quality regulations and monitoring effluent discharge into the state’s
waterways . . . although these agencies have separate functions, water
resources are precluded from issuing a permit for a water appropriation
project which when completed would violate the water quality standards
of the Department of Health and Welfare.” Carlson noted when large
CAFO (confined animal feed operations) operators can point to a single
operation of comparable scale located near a populated area which does
not create some type of nuisance condition, Idaho Rural Council will
reconsider the concept and philosophy behind H 284. The public interest
portion of water law needs to be flexible to deal with every type of threat
to air and water quality, along with property values and way of life. The
public interest requirements need to be flexible. The current law acts as a
check and balance system. He stated H 284 is a solution looking for a
problem. He noted the case he has cited was not an abuse of the law.



He further summarized the cases set out in his handout (a copy is
attached). He noted the K&W Dairy case was an example of protests
resulting in the application being done right. The regional problems of
impacts to recreation will not be solved through local zoning boards
because of county boundaries. The Department of Water Resources can
take a wider view under the current law to consider the regional impacts to
potential regional problems. The air quality in the area of the K&W Dairy
has already been substantially impacted by the existing dairies in the area.
The protest also concerned water quality and quantity problems even
though the center of the concern was air quality.

He stated the Salmon Falls Land and Livestock operation was recently
permitted by Twin Falls County without any public hearings. H 283
companion legislation to H 284 will solve the problem of absence of a
public hearing. It is important to continue a broad review under the
current local public interest procedures. He stated Salmon Falls and Box
Canyon Dairies are located very close to the Snake River in the Thousand
Springs area. These two businesses propose operations in an area where
there is already a substantial air quality impact along the scenic highway
and an area that are heavily used for recreation. He noted this area is
along the border of Twin Falls County and Gooding County. There would
not have been any way that county commissioners in the two counties
could have made a decision.

The Bloxham Diary at Hagerman, west of the National Monument, would
have prevented further economic development of the tourist industry by
the city of Hagerman. This application was based on an attempt to transfer
water from Bingham County to western Twin Falls County. The
department denied that application based on the impossibility of
transferring water that distance from one aquifer to another.



The Eagle View Dairy near Castleford would have had an impact on the
local school district because of the size of the proposed project.
Negotiations resulted in benefits to the area through the local public
interest criteria. Through the negotiations, the application was approved
with a lower number of animals along with a financial contribution to the
school district to offset the increased enrollment impact. He noted this is
an example of benefits as a result of protests.



Rocky Mountain Land and Cattle at King Hill were denied a permit by
Elmore County before the hearing by DWR. This is an example of an
applicant who attempted to relitigate the county denial before the
department. He noted there are other cases of a similar nature where the
county denies the application but the applicant proceeds to relitigate the
denial before the department. He stated there is a case pending before the
department from Canyon County of this nature.



Carlson stated the Idaho Rural Council has supported protests in transfers,
but now is selective about the transfers they will be involved in. He noted
that although the organization is small there is a lot of support from
individuals who cannot show their support in public. He urged the
committee to hold H 284 because the public interest portion of water law
is not broken and does not need to be fixed. The current law provides a
safety net for Idaho citizens.

Phil Rassier, Deputy Attorney General, Department of Water Resources,
stated he was involved in the Shokal v. Dunn in connection with a large
fish operation on Billingsley Creek at Hagerman. The citizens along
Billingsley Creek protested because they were concerned about water
quality issues. At that time, the DWR had never considered local public
interest or water quality. The department’s order was conditioned on the
local public interest statutes to allow the protestants thirty days to petition
the director to consider the local public interest. The applicant felt it was
unfair to have the new requirement applied to his existing proceeding.
This case was appealed to the Supreme Court which ruled an applicant for
a water right is not holding a property interest to be protected by the
retroactive application. The local public interest criteria were then applied
to all pending applications before the department.



Rassier stated the Shokal case centered on the extent the local public
interest should be defined. He noted much of the debate today concerns
the proposed amendment to the local public interest and if it is consistent
with the Shokal decision or if it narrows that decision. He stated the facts
in Shokal, the water quality issues on Billingsley Creek, were the issue and
the language proposed in the amendment would allow those issues to be
considered. The Supreme Court decision attempted not only to resolve
that case but went beyond that and gave direction to the director of
Department of Water Resources in how the local public interest standard
was to be applied in future case. The court referred to the minimum
stream flow statutes and other water related issues along with other
matters that would reasonably be included in local public interest. He
stated that is the language which gives the director broad discretion to
determine what factors that affect the people in the local area should be
considered, such as health or economic issues.



Rassier stated that the applicant presents testimony or evidence describing
the economic benefits of the proposed project. On the other hand, reason
or fairness should allow citizens to present economic detriments associated
with the project. This then opens the decision to considerations of odors
and flies. He noted the department, in making determinations on
applications, listened to the testimony and the department’s expertise is in
water not odors and flies. It is inappropriate for the department to be
considering these issues. The issue for the Legislature to decide if this is
something the Legislature wants to provide a forum for its citizens to have
considered, but it does not have to be before the Department of Water
Resources. If the state or the Department of Water Resources does not
provide a forum, then the alternative is to the court. He stated the current
law does not interfere with the department’s ability to carry out the Snake
River Basin Adjudication. The staff assigned to the SRBA is not involved
with the hearing process. The burden falls upon the hearing officer and
whether a decision is appealed to the director. Then there is an additional
burden on the director and the attorneys representing the department, but it
does not interfere with the department’s ability to carry out its normal
responsibilities. Another issue to be considered is how the proposed
amendment would affect pending matters before the department in
connection with the local public interest standard. If the Legislature
changes or amends the local public interest, the pending filings are rights
that are being transferred, but it is not the applicant who would be
objecting to the change in law. The change in law is of benefit to the right
holder because it would reduce the burden imposed upon the applicant.
Any burden associated with the proposed change in law would fall upon
the protestants.

Clive Strong, Deputy Attorney General, Chief of the Division of Natural
Resources, stated the discussion has fairly presented the issues to the
Committee. This is fundamentally a public policy question between the
citizens of the state and the Legislature about the appropriate mechanism
for allocating an essential resource. Fundamentally, there are two
questions which need to be asked. First, how to take into account the
various environmental factors that can influence the use of the resources.
Secondly, if those factors are taken into consideration, what is the
appropriate forum for consideration of the various issues. Strong stated
his role is to try and capture the intent and objective of the sponsors of the
proposed legislation. The citizens of Idaho believe and support the need
for consideration of the impact of use of the waters of Idaho as it affects
the public interest along with preserving the Shokal v. Dunn aspect of the
local public interest while taking into account all the direct effects of the
water use. Strong stated the intent was to retain considerations of water
quality and water quantity in the issue of allocation of water so the
fundamental aspects of water use are reflected in the definition. He stated
the policy question before the Committee concerns the secondary effects
of a particular use. He noted the statement of purpose for the proposed
legislation sets out an example of various impacts for a proposed project.
He further noted the example could have no impact on water but would
upon secondary impacts in regard to air quality. He stated the sponsors
were concerned about making sure that issue is debated before the
appropriate state entity. The issue would not be ignored but it would be
handled by a state agency having jurisdiction over the matter. The
proposed legislation addresses what is the appropriate forum for the
different environmental concerns. The proposed legislation does not do
away with the local public interest. The local public interest is maintained
but sets limits around how to address the local public interest in respect to
DWR. Other issues would then be addressed by other regulatory entities.
Upon inquiry, Reed related his one of his experiences in North Idaho
regarding a Wal-Mart wherein a public witness attempted to testify
regarding the company’s labor practices but was prohibited from testifying
by the hearing officer because the issue was zoning. Reed stated that is an
example of what ought to be properly and procedurally presented. The
public witness should be required to talk only about the main issue. Reed
further stated it was important to keep in mind and not take the language
added as adding something. He said the local public interest as defined
are the affairs of the people in the area directly affected by the proposed
use would prohibit forever any effort to divert water out of the basin or
take away water that is going to affect the local economy. Reed stated the
economic interest can be considered and should be a primary
consideration. Reed stated the new language is limited to the transbasin
diversions and they do not happen often.



Senator Stennett stated the proponents state the reason for the proposed
legislation is to focus on the issues and extemporaneous issues not be
considered. Reed stated issues related directly to water are the issues that
should be considered by DWR.

Upon inquiry from Senator Kennedy, Semanko stated H 284 would codify
court holdings about water quality. The Shokal decision caused discussion
about whether the local public interest criteria should be removed from the
statute. Ths Shokal decision is not the reason for H 284. Semanko stated
the interests set forth in the Shokal decision are still protected under H
284. He noted the statement of purpose for H 284 also clarifies the
protection of those interests by the director under local public interest
criteria in the consideration of water rights.

Chairman Noh stated protestants will continue to try to build logical
connections between water use and other factors. Noh inquired if a flush
system in a dairy which relies directly upon using the water. The use of a
flush system leads to bad odors. Under H 284, Semanko stated what
should be considered is the impact on the public water resource and not
water supply. Semanko further stated the impacts on the water could also
be a water quality impact, quantity impact or other uses of water, not the
water supply.
Carlson stated the public water resource if used through a flush system or
through the pivots which could create nuisance conditions and would have
a direct connection with the water resource. Part of his objection to H 284
is because if other agencies are not doing what they should be to protect
the citizens, why should another agency permit anything that would have
the potential to become a public nuisance. DWR would then be just
another agency processing applications without listening to citizens.
Carlson stated until the large CAFOs can show to the citizens that their
operations will not be a public nuisance in populated areas, why should
any governmental agency be involved and participate in approving it.



Carlson further stated under the current law the applicant has the burden of
proving all the elements, including the local public interest. In Shokal, the
local public interest places the burden on the protestants to present
evidence that the proposal is not in the public interest. Carlson stated H
284 would limit consideration of issues by DWR. Upon inquiry from
Senator Stennett, Carlson stated everyone and everything in Idaho has a
direction connection to water on some level but the purpose of the
legislation is to limit the secondary effects considered by DWR, even if
the secondary effects constitute public nuisances.

Semanko noted in Idaho their ability to show financial resources is
required for a project so that part of the public interest criteria is covered
under existing statutory criteria. Upon inquiry from Senator Stennett,
Semanko stated there has been some in their group and other groups who
would like to say that it has been a fun experiment, but the prevailing
attitude is the local public interest is ingrained in the water code until the
decision by the Fifth District Court. He noted the definition needs to be
preserved and given specific definition that is workable.
Upon inquiry from Chairman Noh, Semanko stated the issue of traffic has
been addressed by DWR in recent cases. He noted there is also concern
for the potential impacts that industry could have on an area and those
concerns being raised under the local public interest in a water right
proceeding. Semanko stated the core reason for the legislation is that
DWR cannot do some of its core programs. DWR is now at the point of
not being able to do planning, which is required under the statutes. The
SRBA is the next thing to be considered by DWR. He stated DWR is
having a third hearing on what the appropriate odor standard is when the
Department of Agriculture is the agency that should be do and when the
county should be making decisions on whether the dairy should be there.
DWR will not solve the odor problem issue in the Magic Valley, but they
are being held hostage until the other agencies address the issue. DWR is
being diverted from its mission because of these jurisdictional issues that
other entities are or should be addressing. Semanko stated that is the core
concern of the Idaho Water Users Association.
Rassier stated the hearing officer assigned to the cases is the individual
primarily impacted by a second or third hearing. The hearing officer does
not work on the SRBA so there is no effect on the adjudication.
Semanko stated when the director of DWR spends multiple days and
weeks trying to response to the K&W Dairy decision on whether there is
an appropriate odor standard or not, there is an impact on DWR
proceedings. The director also needs to spend time on issues related to
ESA, flow augmentation, conjunctive management, and other issues.
Other agencies have jurisdiction over the issues and the director of DWR
should not be forced to consider those issues.
Time having expired; the meeting was adjourned at 3:50 p.m.






DATE: March 28, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, Kennedy
The meeting was called to order by Chairman Noh at 1:45 p.m.



Chairman Noh brought to the Committee’s attention the memorandum of
March 24, 2003 by Laura Bettis, a senior law student, regarding Idaho
Code Section 58-307(4) and the current proposed amendment. A copy is
attached. He stated that she advises the committee to proceed cautiously
with the legislation and to understand exactly how it relates to the existing
code. He noted 58-307(1) applies to school endowment lands, (3) non-school endowment lands and (4) notwithstanding any other provision of
law only the state public school endowment lands described may be leased
for commercial purposes for a term not to exceed ten years. There are two
parcels of land in question; one school endowment lands and one non-school endowment lands, both to be used for a commercial lease for period
greater than ten years. This raises the question whether the Land Board
was in error in issuing the ten year lease for state school endowment lands
prior to the parcel being approved by the Legislature. This section of the
code and how the Legislature addresses these issues may need some
discussion next session.



Chairman Noh also noted the need to discuss the possibility of a trust
account. There is a lack of clarity in the lease as to such provision.
Another issue to be considered is related to the issue of water rights. State
law requires evidence presented to the director of the Department of Lands
that financing is adequate for the purposes of the project. Chairman Noh
noted he has discussed the issue with Peter Anderson, the hearing officer
for DWR. Anderson made his decision based solely upon the evidence
presented to him. He noted that Anderson had one concern, in retrospect,
that the primary compelling element of the evidence presented in favor of
adequate financing was from the Bank of America representative. The
Bank of America representative stated he felt the financing they would
participate in would be adequate and effective. However, soon thereafter
Bank of America no longer involved with the project.



Chairman Noh provided to the Committee a proposed draft of a letter of
intent or committee report to be included with the legislation as set forth:

H 83

LEGISLATIVE INTENT

In approving H 83, the Idaho Senate is only authorizing a long-term
commercial lease on the parcels of state lands described therein, with the
expectation that any leases executed by the Board of Land Commissioners
will best serve the interests of the endowed institutions. This action
should in no way be interpreted by the public, potential investors, lenders,
local citizens or others, as making any statement or endorsement as to the
merits or risks of any development which may be undertaken as a result of
or in conjunction with such leases.

______________________________________

Laird Noh, Chairman

Senate Resources and Environment Committee



Legislative Intent ­ H 83



Ken McClure, Boise attorney representing WestRock/Tamarack, stated
information has been provided to the committee and individual members
as requested and is in attendance to answer any questions. He introduced
Jean-Pierre Boespflug, the majority owner and CEO of Tamarack Resort,
who although born in France, is an American citizen and now lives in
Boise. McClure also introduced Nancy Boespflug, Jean-Pierre’s wife.



Boespflug stated there has been an extensive process over the past six
weeks with various members of the Committee. He presented to the

Committee a letter he had prepared to assure the Committee of their intent
and cooperation. The a scanned copy of the letter is set forth:

He noted there was concern from some members of the Committee that the
lease not be an indication of endorsement by the state of the project. He
stated he understands the concern and now consents to insert into all of
their real estate contracts the statement as set out in the letter as No. 1.
This will clearly state that the state does not endorse the project.



He noted all outstanding offerings for securities now contain the
disclaimer specified in the lease that the state does not endorse the project.



Boespflug further stated the concern that Bank of America is no longer
their advisor . He reminded the committee Bank of America was only an
advisor. It was never represented that Bank of America was providing the
sole funding. It was represented to the Land Board and DWR’s hearing
office that Bank of America would help raise funds for the project. The
reason that Bank of America is no longer involved is because the potential
investors were not satisfied with their services. The project has no debt
and has the finances for phase one of the project, bonds required under the
lease, and the $600,000 payment to the state upon the passage of the
legislation extending the lease.



He informed the committee that phase one of the project includes two ski
lifts which will provide access to the top of the mountain and one beginner
ski lift. In addition there will be one 18 hole golf course (9 more than
required by the lease), a typical ski lodge, along with full utilities and
roads for the real estate development.



Boespflug pledged to the committee that any funds received for
reservations or earnest money for real estate transactions will be escrowed
in an account in McCall already opened for that purpose. He expressed
confidence in the proposed project. He noted there is an outreach program
in the communities in the area of the project. Contributions have already
been made for a skating rink in McCall and skate board park in Cascade.
Tamarack intends to have a good relationship with all of its neighbors.

Typically the project’s outreach program will make donations between
$5,000 to $50,000.



Boespflug stated his conviction and funding of the resort project is strong
based on his careful research as is evidenced by his $l3,000,000
investment.

H 83 Winston Wiggins, Director, Department of Lands, responding to questions
from the Committee, stated there are adequate assurances in the document
to provide for the commitments that are required by the state endowment
land lease. He noted the lease provides for bonding or other financial
considerations. The financial assurances set forth in page 29 of the lease
requires either cash on hand committed to the payment of construction or
financing for such construction in a form acceptable to the department.
The determination of which alternative is at the option of the lessee, but
the department controls by requiring the form and the institutions that are
satisfactory to the state.
Kent Nelson, Deputy Attorney General, Department of Lands, responded
to inquiries that the lease documents were stated in generalizations to
enable the department to have some flexibility. He noted a standard
construction escrow account has been outlined to the developers which
will be with a bank or title company, which will be a third-party holder of
the funds. Funds will not be disbursed unless there is an approval of
disbursement by all the parties, including the Land Board.
Senator Kennedy stated to the Committee that after the last committee
meeting and in view of Senator Cameron’s statements that he was
somewhat concerned that the letter to the Governor was not one hundred
percent representative of the members, he wanted to emphasize several of
the items in the letter were from him. Kennedy meet personally with
Wiggins and McClure to convey his concerns as a member of the
committee. He noted all the items he was concerned about were contained
in the chairman’s letter to the Governor. He stated there are four basic
concerns that he had which have been commented on by Boespflug today.
Kennedy stated the state has an obligation to make sure the rental
payments under the lease are protected and are a good return to the state
endowment lands. He further stated he believes the committee has an
obligation to ascertain that the project has reasonable likelihood of
success.



Upon inquiry from Senator Kennedy, Wiggins stated the department or
staff or the Land Board, throughout the process has utilized other state
agencies to assist in the examination of the ability of the developers to
accomplish the project. Wiggins further stated, considering that this type
of project is a risky business, he feels the project is reasonable and likely
to succeed. He noted the failure of the developers to provide the bonding
specified in the lease would constitute a breach of the lease and they
would not be able to proceed.



Senator Kennedy stated it would be unwise for the Legislature to provide
for a forty-nine year lease and then the developers, not have the funding
for a performance bond, to be defaulted out of the agreement. Wiggins
said the department’s expectation is the developers will be able to
complete the proposed project.



Upon further inquiry from Senator Kennedy, Wiggins stated the letter
presented to the Committee today by the developer is appropriate for them
to volunteer as they are not provisions of the lease. He noted the
department and Land Board cannot assure any of the successful
development of the leased state lands.



Nelson said the concerns of the committee are valid and commends the
developers for volunteering to meet concerns outside the scope of the
lease.



Kennedy stated he was concerned that the public would perceive that the
state was endorsing the project and invest in the project based on that
assumption. He feels that people investing in the project should be
advised and put on notice that the state does not endorse the project and
has only a landlord-tenant relationship. He noted the developers have
agreed to place a provision in the sale contract documents providing notice
to prospective purchasers that the state is not underwriting or endorsing
the project. Wiggins stated he has read the letter voluntarily presented to
the Committee by the developers. He stated the state would file a
summary of the lease document with the county so the disclaimer would
appear on title searches.



Upon inquiry from Senator Stennett, Nelson said the summary would
appear in a title search in relation to the state lands encompassed by the
lease. Stennett inquired if the summary would encumber private lands
owned by the developers. Nelson said it would not as there is no
encumbrance on the private lands associated with the lease. Nelson said
the purpose of the disclaimer is that the document that creates the
relationship is the lease. Nelson stated there is not a right to encumber the
land not under the provisions of the lease.

Ken McClure, Boise attorney, representing WestRock/Tamarack, stated if
the committee needs further assurance, the developer will agree to it but
that would not be as good as placing a disclaimer in the sales agreement.
If this is a material issue to the committee, the developer has no objection.



Chairman Noh inquired as to the intention of the Department of Lands and
Land Board to ensure that it has highly qualified staff, working with the
counties, to look after the interests of the state so the counties, too, can
look after their interests in regard to the lease. Wiggins stated the
Department of Lands will provide whatever resources are necessary to
ensure that the lease is carried out. Whether or not the department will
need additional budget considerations because of the project will be
determined as the project proceeds. Chairman Noh stated he understood
there would be adequate revenues from the rental payments for additional
budget considerations. Wiggins stated the department will provide the
resources and noted that staff is already working with the developers on
site overseeing minor activities at this time. The department has resources
available along with funding and personnel. Wiggins further stated it
could be possible in the future to need an additional FTP for the project.
Wiggins noted he is confident his staff is competent to do the job. He
stated he hoped there was not an underestimation of the toughness of the
department.



Senator Burtenshaw inquired as to the responsibility for fencing the cattle
out of the leased land. Jay Biladeau, Department of Lands, stated the area
is open range. There is only one section, section 36, which is leased. The
department has coordinated with the developers in regard to continued use
of that section for grazing. The department does not see it as a conflict at
this time. Cattle do get into the leased area and the other area is fairly
steep and timbered and is not leased. Under an open range law, the
department or the developer would have to take action to prevent the cattle
from entering onto the leased land. He further stated that the livestock
operator would not be required to fence the area. Burtenshaw noted on
some grazing leases camping is allowed and asked whether that would be
allowed. Biladeau stated the public is allowed to camp on all state
endowment lands, not just lands that are leased for grazing. He noted
there is a term in the lease that the public can use the property as long as it
does not conflict with the uses under the lease. If there was a problem, the
state would have the responsibility to address the problem. If the
developers felt the cattle were conflicting with the use, it would be the
lessee’s obligation to provide fencing or some other means to keep the
livestock off the state land under the lease.

Scott Turlington, Office of the Governor, stated outside the Governor’s
role as Chairman of the Land Board, he is mandated to maximize the long
term return to the endowment. He noted the lease was drafted through the
department with tough negotiations. The Governor has worked with DEQ,
Department of Parks and Recreation, Department of Fish and Game, and
Department of Transportation to assure the protections were in place. The
additional commitments provided by the developers is a good indication of
the cooperation throughout the negotiations with the developers.
Motion Motion by Senator Brandt to send H 83 to the floor with a do pass with
legislative intent recommendation; seconded by Senator Williams. Motion
carried.
There being no further matters to come before the committee, the meeting
was adjourned at 3:10 p.m.






DATE: March 31, 2003
TIME: 1:30 p.m.
PLACE: Gold Room
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, Kennedy
The meeting was called to order by Chairman Noh at 1:40 P.M.



Rick Stott, representing Idaho Cattle Association as a member of the
Board of Directors and Executive Committee and is the treasurer for Agri-Beef, a Idaho cattle company, stated the importance of the issue is the
efficiency of government. With the state budget crisis, there is a need to
look for efficiency and effectiveness in state government. He stated H 284
focuses on those needs by allowing the Department of Water Resources to
do what they do best, review the issues specifically related to water. He
urged support of the legislation.

Helen Will stated she was opposed to H 284 but did not wish to testify.
Cheryl Kaatz stated her and her husband retired eight years ago from the
U.S. Air Force to Buhl-Twin Falls area. They purchased a home seven
miles north of Buhl. It was unknown to them that there would be
additional inhabitants above them in Gooding County. She stated she does
not have a science degree, but she trusts her nose for the detection of
smell. Two days ago stepping out on their patio, smell does not know a
one-mile limit and neither does water. Water flows down hill and it will
flow more than one mile. Even though they are not within the one-mile
impact area, they feel they should be able to have their views heard. She
urged the committee to listen to the public on these issues.
Dick Rush, Idaho Association of Commerce and Industry, stated their
organization supports H 284 because state government is organized into
departments with specific purposes and responsibilities. In recent years,
the director of the Department of Water Resources in the reviewing of
applications for use of water has had to base some of DWR decisions on
non-water topics as traffic and air quality. He noted there are other state
departments which have the responsibilities for those areas. H 284 would
cease the jurisdictional drift and would clarify the responsibilities for
water issues and the issues under the purview of other state departments.
He urged support for the legislation.
Joyce M.. Chase, retired politician, owning acreage in the Dry Lake area
of Canyon County, stated they have been in the area since 1902. She
stated two years ago they attempted to sell the property to individual for a
dairy operation. In order to sell the property, it was necessary for them to
assure a well for water. At the present time, the land is irrigated from the
Snake River and in order to install a well it is necessary for them to
mitigate the water right. They filed to do so in January 2002. In June
people who moved into the area protested the application. To date there
has not been a final hearing. In the meantime, they have had to hire
environmental resource experts and attorneys in this regard. She stated the
original protest was not just strictly on water but because it was a dairy
and odor. Five of the six criteria had been met by the sellers so the
transaction is still in limbo. She noted to date the cost to them has been
$36,241.54 and they still don’t have an answer. If it had been strictly on
water, they would have known by now whether the transaction could or
could not proceeded. Protesting could have taken place at planning and
zoning, county commissioners and other areas which are better equipped
to deal with the concerns expressed in the protests other than the water.
She urged the Committee to consider the legislation as it does not take
away anyone’s rights. There is still the right to file protests in other areas.
Let the Department of Water Resources deal with water issues.



Senator Stennett inquired whether passage of the legislation would effect
their pending matter before the Department of Water Resources. Chase
said she was unsure if the legislation would have any effect. Their hearing
is scheduled for April 21. She expressed concern for other people. The
area they live in has had this problem for eleven years. There have also
been protests against another landowner who has been there for over forty
years and already has a small dairy and wants to enlarge. The protestants
are protesting about everything there also.



David Mead, Twin Falls, stated he is a retired banker with experience and
education in agriculture. He stated without water there would not be any
agriculture production. He owns an agricultural operation in Twin Falls
County. Mead has served on the city planning and zoning committee and
helped develop the county planning and zoning. He has served on the
state Board of Health and Welfare for almost ten years. H 284 is
legislation primarily to help a small number of industrial dairy operators
who did not get all they wanted from the Department of Water Resources.
Now, the public interest part of water law changed even though it has in
existence for over twenty years and working well. Mead stated the public
interest portion of the water law has worked well because he has noted the
protestants have used a broad public interest citation to challenge a
project. He noted he has not seen any abuses of the law. The current law
is not broken and should not be fixed for the benefit of few. Mead noted,
H 283 a concurrent bill dealing with local land use planning is not up to
the task of filling for what is lost in H 284. He stated H 284 limits the
ability of business owners to protect their investment and livelihood from
the negative impacts caused by mega dairies and power plants. There is a
need to maintain the versatility of the public interest provisions of the
current law to make sure that impacts are reasonable in scope. He stated it
makes no sense whatsoever for the Department of Water Resources to
blindly grant permit requests without regard to water quality regulations.
He urged the Committee to oppose H 284.

Terry Ottens, representing Canyon County Farm Bureau Federation Board,
agrees that water issues should be concerned at the hearings by water
experts at DWR. Land use and other issues should be heard in their
appropriate forums as already directed by state law. The local land use
planning act is very specific in that the locals should be making the
decisions on land use and they should not pre-empted by state agencies.
They recommend H 284 do pass.
Steve Kaatz, owns a farm seven miles of Buhl Idaho and has a vested
interest in the Magic Valley. He noted he served last year as the president
of the Buhl Chamber of Commerce and is currently president of the Rural
Magic Valley Economic Issues. He stated the frustration in the Magic
Valley with the degraded quality of life being experiencing because of the
confined animal feed operations. He stated his water has gone from no
measurement of nitrates up to six parts per million. The report by the
Department of Environmental Quality in August of 2000 forecasted that
they would no longer be able to drink their water by 2005. He noted they
have spent a great deal of money investing in the property and in their
homes. The vast majority of people living in the subdivision are very
disappointed and see their land values declining and cannot sell their
property close to what they paid for it. This law is twenty years old and
ensures public interest in the water, a common economic factor. To
eliminate the public interest from water is hard to understand. If there is a
complaint about a confined animal feeding operation, the Department of
Agriculture should be contacted, but there is not an office in the Magic
Valley. He stated they have been unable to obtain a response from the
Boise office of the Department of Agriculture to complaints. He stated he
does not see a problem with asking an enterprise which provides an
economic vitality to an area to come before the public, most affected by
the enterprise, to explain when and how much they want to be good
neighbors. He opposes the legislation.
Toy Smith, Twin Falls, stated he sees the issue as one between an Idaho
industry that is trying to grow and develop versus large out of state
enterprises funding citizen groups. He noted there have been some
problems with specific instances in the dairy industry, but 98 per cent of
the dairies in Idaho have never had an odor complaint against them. The
local public interest law is an attempt to make an end run around local
planning and zoning, who have the authority to decide who should or
should not being doing what within each county. If protestants cannot get
what they want through planning and zoning, they then file against the
water right transfer. The protestants are not well versed in the issues used
to condemn a particular development and the need to protect their own
credibility. When a permit is delayed or denied, it is an easy thing to do.
He believes passage of the legislation is in the best interests of the state.
He encouraged the committee to send the legislation to the floor with a do
pass recommendation.



Upon inquiry, Smith stated he was an employee of Northwest Dairy
Association, a farmer owned cooperative in Idaho, with three processing
plants with 200 employees with a $5,000,000 payroll.

Stacy Butler, Spring Cove Ranch, Bliss, presented to the Committee
testimony from the 600 members of the Idaho Rural Council. A copy is
attached. She noted she is the Executive Director of the Idaho Rural
Council. She presents this testimony in behalf of herself and her family.
She stated her and her husband are fifth generation ranchers. She asked
the Committee to vote no on H 284. Her family was one of the first to
protest a water transfer application from a large dairy in Idaho. In an
effort to protect the natural springs, which provides the drinking water for
five homes for over 85 years, the family filed a protest. The protest took
over three years and cost the family over $70,000 to protect their water.
The water transfer was denied by the Department of Water Resources and
she was able to prove that the transfer would damage their existing water
right under all four of the criteria required by DWR, including the local
public interest criteria. After the preliminary order of denial was
published by DWR, the applicant withdrew the original application and
reapplied for the same water at the same site for the same use. The family
was unable to fund another protest battle and therefore entered into an
agreement to protect the water quality in the springs. The agreement was
been disregarded by the diary men and ten years after the initial water
protest was filed there is now civil litigation pending. She stated she is
concerned if H 284 becomes law, water transfers previously denied by
DWR will reapplied due to the new definition of public interest. This
would be costly not only to those who protested the water transfers, it
would also be costly to the state through DWR. The water protestants
have indicated the law has cost them thousands of dollars by allowing a
broad interpretation of the public interest criteria. Butler stated the cost of
a water transfer battle are incurred on both sides. The state law in effect
benefits the applicant over the protestant. If a water transfer is granted, the
protestant must live with the decision or file for judicial review. On the
other hand, if the water transfer is denied, the applicant can reapply for the
same water at the same site for the same use and drain the financial
resources of the protestant. The public interest criteria as written provides
citizens an opportunity to participate in the decisions concerning Idaho’s
water uses. The interested public should not be limited to speak when
water has no boundaries or limits. The irrigation water for the ranch
comes from the American Falls Reservoir. The water, while used for
irrigation, also provides recreation, water fowl habitat and stock water.
She expressed concern how the interests of citizens could be limited in the
protection of the resource for the public benefit. Butler further said H 284
will narrowly limit DWR in considering water permits. She asked the
committee not to consider the interests of a special interest lobby, but to
stand up for the Idaho citizens’ right to participate in the process and to
vote no on H 284.
Reagan Hatch, managing partner of Castleford dairy owner, stated as a
dairymen, resident of Twin Falls County, and current chairman of the
Twin Falls County Planning and Zoning, he is well aware how contentious
the dairies are in their area. The process of protesting a water right
transfer is dealing with issues that should be handled by the local planning
and zoning and county land use issues and has absolutely nothing to do
with a water right. He stated their water transfer was one of the first to be
protested and he has personal experience with the process. They were
required to hire a hydrologist, attorney and expert witnesses to develop
one of the first nutrient management plans in the state. The nutrient
management plan was one of the good results of the process. Their
application was based on science and documented facts pertaining to water
use and operational issue concerning the dairy. The protest were not based
on fact or science but newspaper articles. He stated they are currently
milking 200 cows under their permit and are at capacity. They are
currently pumping right at their water right and they do not have the water
they will need to add 200 cows for economic purposes. He stated DWR
has their own work sheets and the information regarding the water transfer
had to be transferred to DWR forms. The calculations determined by
DWR was much lower than what was original determined their water
rights to be. Because of DWR work sheets, a substantial number of dairies
that transferred water during the three year period following their water
transfer do not have adequate water to operate at capacity. He noted they
do not have a problem with transferring water to cover their usage because
there is a well on their farm a mile and one-half west of the dairy and will
transfer some of that water to fill their needs. He stated their problem is in
applying for the transfer of water, changing the point of diversion and
change of use from agriculture to commercial, there will be someone in
the Magic Valley, outside of his immediate community, will spend the $25
to file a protest and force a hearing. He stated he was equally sure that his
neighbors, nor anyone in their community, would protest the transfer.
Water transfer hearings under the local public interest doctrine have
become a circus that is being used in the public forum to harass dairy
people. He stated DWR should be dealing with water issues, quality and
quantity and not other matters outside the scope of DWR.
Upon inquiry from Senator Cameron, Stacy Butler responded her husband
is a fifth generation rancher and she is a sixth generation rancher. They
have 1,000 deeded acres since the early 1900’s owned and managed by a
member of the Butler family. They have a water right for the ranch
operations which dates back to 1922 with an additional water transfer
made in 1945. She does not know whether there was ever a protest filed in
connection with their water rights.
Jeff Brooks, a resident of Idaho with a degree in civil engineering with an
environmental emphasis. He suggests to the Committee that any
legislation designed to limit review and public participation is by
definition poor public policy. It is un-American to limit the public
process. His experience has been that many state agencies often are
outspent and outgunned by well funded private interests and need to rely
on the input of private citizens to bring the issues to attention. Public
review and participation are the court of final resort and this basic
American value should not be short circuited by private interests. He
urged the Committee to vote no on the proposed legislation.
Adrian Boer stated he has been operating dairies in Idaho for over 22
years. His sons and him have never had complaint in the years that they
have been in business. He noted in a current venture they have been
delayed for three and one-half years under the public interest doctrine in
their water transfer. He stated the water transfer should have been just a
simply change of use. They have the property with the water. After
receiving all the siting permits and other requirements in Gooding County,
they have been delayed by the local public interest criteria. They have
provided a nutrient management plan, which cost over $13,000, along with
$4,300 in attorney fees and engineering fees and compiled with the
Gooding County CAFO ordinances as required. The odor management
plan passed into law last year is now also required. He stated they
understand the proposed legislation would not have an effect on their
application. He stated they support and passage of H 284.
Bill Chisholm provided written testimony which is attached to the
minutes. He stated the primary role of government is protect the
inalienable rights of all the citizens and not to protect special interests. He
noted water is not a commodity, but is the common denominator on which
all life depends. The public interest should be defined by the public and
not by lawyers for special interest groups. The issue before the Committee
is not about CAFO but the CAFO issue is certainly a driving force. He
noted in local land use planning many of the impacts go across county
lines. H 283 does not protect the public and the public does not deal with
the inter jurisdictional issues. That legislation does not deal with people
outside the one mile or businesses, schools and churches, but addresses
primary residences within the one mile. The local public interest as set
forth in Shokal v. Dunn is a twenty-five year concept that addresses the
secondary issues. If water is to be used for beneficial use, how can
something that creates a beneficial use be considered a public nuisance.
One of the places for the public to express their concerns is through the
public interest aspect of water law. Chisholm stated his opposition to H
284 and H 283. Chisholm presented to the Committee a petition from 136
citizens around the state.
Lauren McLean, Idaho Conservation League, provided a handout to the
Committee. (A copy is attached.) She noted there is 179 signatures from
Meridian and Moscow opposing H 284 along with editorials from various
newspapers. In the Shokal decision states “The public interest should be
read broadly in order to secure the greatest possible benefit from the
public waters for the public. By using the general term, local public
interest, the Legislature intended to include any locally important factor
impacted by proposed appropriations.” She stated H 284 restricts citizen
participation in public decision making because it would limit the scope of
what would be allowed in the discussion under consideration. The
proposed legislation would change the body of law which has been
thoroughly debated and worked well for twenty-five years. This
legislation is not needed because there is not a clear reason why the law is
needed and would not solve the problems indicated. She stated H 284
does limit testimony and court consideration of testimony if it is outside
the scope of water quality and quantity. She noted H 284 deals with a
body of law in existence for twenty-five years. According to DWR, on
average it takes nine to 12 months for a protested case to be completed. In
southern Idaho since 2000 to January 2003 there were approximately 753
water transfer applications of which 83 were protested with 30 being
protested under the local public interest issue. She noted that is only 4
percent of the southern Idaho water transfer applications. H 284 will
eliminate people from participating in issues relating to the local public
interest. She stated a Deputy Attorney General previously stated that H
284 limits what DWR can consider, limits testimony and limits public
input by narrowing the scope. She urged the Committee to hold H 284 in
committee.
Brad Hoaglun, representing Food Producers of Idaho, stated the process is
broken and H 284 will allow decisions to be made in a timely fashion by
DWR. Government should be an orderly process and for a decision to be
rendered in a timely fashion. There should be a system in place that
follows through. The issue is about water rights, not about dairies. Idaho
is an agricultural state and water is integral. DWR is being abused by
opponents to dairies by tying up the system. He urged the Committee to
send H 284 to the floor with a do pass recommendation.
Senator Kennedy inquired when the local public interest doctrine was
broken. Hoaglun responded the doctrine and system is broken when
people cannot get a decision by government. He further stated the law did
work well for a good portion of time, but when the issues of dairies and
the size of dairies and CAFOs became an issue, that is when the doctrine
was broken because it was used for purposes outside the scope of DWR.
The questions can be and should be addressed through other avenues.
Bobi DeKleinhaus stated she lives on the Snake River near Salmon Falls
Creek, flowing through their property as it goes into the Snake River.
Water right, land use, the pollution involved and the amount of water
taken are important issues to her. She urged to the Committee to vote no
on H 284 as she does not think it is needed at this time. She thinks a good
job is being done right now and urges that public not be removed from
public interest.
Del Kohtz, own and operate Idaho Water Company at Eden, Idaho, stated
his company deals in water rights and transfers for milk processing, dairy
and farm clients in southern Idaho. He is familiar with what it takes to
transfer a water right to a business needing water. He noted he is also a
member of the Jerome County Planning and Zoning Commission and in
that capacity he has seen businesses make an effort to try and get the
necessary permits and comply with county land use ordinances. He
believes the commissions of the various counties should have the final say
on whether a business should be sited in a particular place. Too many
times, those in opposition to a particular business oppose the siting at
commission hearings and then if the commission finds for the applicant,
the opposition then moves to water rights transfer protest to further stall
the process of getting the required permits to run the business. Not many
business can wait two years for the necessary permits to begin business.
He stated the local public interest provision should not be a part of Idaho
water law because the provision shifts the responsibility for land use
decisions from the local commission to DWR. DWR does not have the
expertise, personnel or funding to properly make a decision on matters of
property rights. He supports and urges the committee to send H 284 to the
floor with a do pass recommendation.



Upon inquiry from Chairman Noh whether Kohtz agreed with the
testimony of the Jerome County Commission that there should be no
public hearing required for planning and zoning for the siting of large
CAFO. Kohtz stated he supports H 283.

Jim DeKleinhaus, retired professional engineer, living north of Buhl,
stated his opposition to H 284. The change in Idaho water law removes
the safety net to protect onerous developments, regardless of what type
they are, as now enjoyed by all the citizens to the benefit of a few. He
stated the legislation is unneeded and urged the Committee to hold in the
Committee and proceed with more important business of the Senate.
Roger Ling, attorney, Rupert, stated he is a native of Idaho and has been
involved in water law issues during his 39 years as an attorney. He
appears before the Committee representing the Idaho Water Users
Association and himself. Local public interest under Shokal v. Dunn
resolves only water issues. He stated the wheel was broken when the local
public interest criteria was considered in water issues which can properly
be addressed by the existing statutes and not solely by the Department of
Water Resources. When the siting is approved by local planning and
zoning commission, as well as city or county commissioners, and could
have been appealed in the courts. Siting and odor are issues to be
addressed by other agencies other than DWR. He asked why an agency of
the state without expertise in issues outside of water should be required to
make decisions on issues not related to water. He stated you do not have
to have water to have an odor, or dust or traffic. Water quality problems
can be created without any water being on the premises. He asked that the
Committee stop and consider the issue in the proper perspective. The
issues should be further challenged in the appropriate agencies,
commissions and departments and not with DWR.



Upon from Senator Cameron whether the legislation would cause an effect
or cause the water to go downstream or over the hill. Ling stated he has
been involved in water law since the adoption of the Water Resource
Board and can find nothing in the proposed legislation which would affect
water going out of state. He noted the current local public interest does
not prevent renting water for out of basin or out of state use, but there are
other statutes that clearly prohibit out of basin or out of state water use.



Upon inquiry from Senator Kennedy, Ling stated the discussion in Shokal
did not address any local public interest except local public interest
involving water. The cases cited all dealt with water related local public
interest. Ling further stated that in Shokal in quoting Judge Smith, as a
district court judge, pointed out that water quality was an issue could be
considered in the local public interest, but said it would be addressed if
water quality standards were a concern and the permit could be
conditioned upon not violating water quality standards. This is placing a
condition on the permit, not denying the permit. If there is a concern
about siting, it could also be a condition with approval from the proper
authorities.

Valerie Chisholm, Buhl, educator, stated as an educator she must be held
accountable and responsible to her community. The large industrial
agricultural interests are furthering their interest through the proposed
legislation by removing the local public interest. She stated the new
criteria would enable agricultural interests to be less accountable. The
scientific effects of ground water show how they all interact and they
should be reviewed together, not separately. She stated the legislation
addresses only 4 percent of the cases over the past two years and the
Legislature should be spending its time on more significant and important
issues such as obtaining more funding for education. She noted nutrient
management plans are not enforced; departments and agencies are limited
and the Department of Agriculture does not answer telephone calls. She

noted that citizens are frustrated and do not need the legislation. She
stated that pollution is expensive for the public and for government to
cleanup afterwards. Chisholm stated common sense and knowledge
should guide good stewardship of the environment.

` Bill Ringert, attorney and grape grower at Hammett, representing Idaho
Water Users Association and himself, stated he is a native of Idaho and his
grandparents and parents were farmers. He still owns a farm in the
Castleford area and has been involved in water law for over forty years.
He noted the local public interest criteria has been a problem since it was
enacted because it imposes vague requirements. He further stated the law
on local public interest is ambigious. The proposed legislation retains a
good portion of the ambiguity. He supports the legislation as it will be a
good attempt to limit the impact on the water right issues and not hold
every water right hostage. He stated DWR, with their limited resources, is
doing a good job, but expertise is limited and they should not be the “one
stop shop.” If the Legislature wants, it could create an agency which
would encompass the whole scope of issues, but this would take decisions
out of the local public interest. He urged the Committee to send H 284 to
the floor with a do pass recommendation.
Ripkin Hilton stated she was born and raised in Idaho and is representing
herself. She requested the Committee to vote no on the legislation.
Dan Shoemaker, Kimberly, has a farming and ranching operation and
represents himself and as President of the Idaho Water Users Association.
He stated the association and he supports H 284. The local public interest
criteria are considered in all water right proceedings. The proposed
legislation would not change these criteria, but under H 284 DWR would
be required to consider impacts to the public water resources. Other local
and state agencies, as well as counties, should consider air quality and
traffic. The Department of Water Resources should not make decisions
regarding secondary impacts. The local public interest criteria are
important for the department to consider in making water right decisions.
He stated DWR is being distracted from doing it job as required by the
statutes. The department should not be bogged down in local public
interest issues that should be addressed by other state and county agencies
having jurisdiction. He further noted the legislation would clarify that
minimum stream flows would not be required to be considered under the
local public interest criteria. The existing process for minimum stream
flow water right must be followed. He noted that those concerned about
water issues are being outspent and outgunned by out of state interests.
Shoemaker thanked Representative Stevenson and Senator Noh for their
time and effort into the drafting of the legislation. He stated H 284 is good
legislation and urged the Committee’s support.
Upon inquiry from Chairman Noh, Shoemaker stated he is not
representing the Twin Falls Canal Company, whose position is neutral on
the legislation.
Fred Brossey, Lincoln County farmer along the Little Wood River, stated
he disagrees with H 284. He stated that although the legislation should be
about water, does not seem to be about water, but about economics. To
change the definition of local public interests states the change will not
adversely affect the local economy of the watershed. Water is the life
blood of Idaho. Idaho’s water belongs to all its citizens and those with a
water right have a right to put the water to beneficial use. The use of
water affects much more than just local economies. It also affects
ecological health of the region. Water has more than just economic value.
The current definition for local public interest in Idaho Code is the only
opportunity for those who care about environmental values, beyond
economic impacts, have to protect those values. He further stated H 284 is
short sighted for the best interests of the state. Idaho’s water in the Snake
River Basin is fully appropriated. He urged the Committee to not pass H
284. Upon inquiry from Senator Cameron, Brossey stated he grows
alfalfa, potatoes, dry beans, wheat, pasture, sweet corn, seed corps,
asparagus and cattle. He stated in a past life he did use pesticides and burn
fields, but he no longer does. He further stated his water right dates back
to 1910.
Russ Hendricks speaking in behalf of Greg Nelson for the Farm Bureau
stated the members fully support H 284 because it returns the local public
interest doctrine to the original intent. The members believe that all issues
not directly tied to water should more properly be handled by local and
other state entities. He urged the Committee to send H 284 to the floor
with a do pass recommendation.
Joanna Weber stated she was representing Citizens for Responsible Land
Use, which is a broad-based organization of 300 members in Canyon and
Ada County. She noted the group was organized two years ago to oppose
a power plant by IdaCorp. She stated the organization is in strong
opposition to the legislation because they know first hand how difficult it
is for the public voice to be heard. It is a necessary and fundamental
element to retain local public interest criteria for major decisions that
affect the quality of life. She stated it is critical that people remain part of
the process. She urged H 284 be rejected by the Committee.
Jim Stewart, Canyon county dairymen and Board of United Dairy, has a
family dairy farm milking 800 cows. He noted they are life long residents
of Idaho and the family is involved in community and industry. He noted
the family received the Governor’s Environmental Stewardship award. He
noted the past ten years the dairy industry has made significant strides to
process milk and make cheese. Expansion has a positive and negative
impact on Idaho based on individual operations. He provided a handout to
the Committee which is attached. He supports H 284.
Bill Sedivy representing Idaho Rivers United stated their opposition to H
284. He stated the legislation would make it more difficult for public
participation in the process. The local public interest criteria are needed to
protect against the public from negative changes. He noted DWR should
consider all factors as water is a public resource and it is appropriate to
restrict its use and not restrict the public from participation.
Marc Brackett, Twin Falls County, stated he is a property owner and a tax
payer so anything the Legislature does is of interest to him. He noted he
also has a water right and considers it a property right. The expansion of
the local public interest criteria in relation to water issues restricts the use
of that property. There are other legitimate avenues to protest. He noted
DWR should not be responsible for dairy siting and local issues. He
supports H 284 and urges the Committee to send the legislation to the
floor with a do pass recommendation.
Ken McClure, Boise attorney, representing Milk Producers of Idaho,
stated the issue is not about CAFOs or agriculture. He related one of his
client’s experiences in Valley County where more than 100 hearings were
conducted to accommodate local public interests prior to a hearing by the
Idaho Land Board in regard to a lease of state lands. The Land Board
determined the lease was not only in the public interest, but in the best
interests of the state of Idaho and the endowment funds. Following those
hearings, application was made for a water right because there was
concern that there would not be sufficient water available for the project.
A deep well resulted in the discovery of an unknown aquifer with
sufficient water which would prevent any harm to existing water rights.
He noted there was a six day hearing process for the application for a
water right through the Department of Water Resources. The issue was
not whether any other user of the aquifer would be harmed because there
were no other users or water quality concerns. The protestants had
conceded at that point that there were no issues associated with water, but
there was a six-day hearing on other issues. McClure stated the procedure
is not healthy for the Idaho economy. He urged the Committee to let
DWR and the local planning and zoning entities do their respective jobs.
Rick Pearson, Magic Valley Farms, stated his support of H 284. The
restrictions by the broad definition of the local public interest are placing
issues outside the jurisdictions of DWR.
Brent Olmstead, Executive Director, Milk Producers of Idaho, stated their
support for H 284 and let local issues be dealt with on the local level.
Jeff Martin, ground water irrigator, representing the North Snake Ground
Water District, presented to the Committee signed petitions. Upon inquiry
from Chairman Noh, Martin said the petitions are the same as the ones he
submitted in the House and he understands the language in the legislation
has since changed. The 130 signatures were gathered around February 10
when Mr. Boer was concerned that the legislation would not apply to him
and the petitions were then circulated. Martin stated their support for H
284 and the concepts presented in the legislation . Chairman Noh inquired
if at the time the petitions were circulated there was a concern that Mr.
Boer’s water permit was not covered, thus the mitigation plans on
conjunctive management would not be successful. Martin stated that
wasn’t exactly correct.
Mike Quesnel, Twin Falls dairyman, support H 284 and appreciates the
local public interest criteria, but the criteria should be the responsibility of
the various local entities. He noted it was important for water transfer
applications to be handled in a short period of time without unnecessary
delay.
Claudia Haines opposes H 284 because of her experiences in Canyon
County with errors in siting. She urged the Committee to oppose H 284.
There being no further matters to come before the Committee, the meeting
was adjourned at 4:00 P.M.






DATE: April 2, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, Kennedy
The meeting was called to order by Chairman Noh at 1:40 p.m.
H 44 Jay Biladeau, Department of Lands, informed the Committee the
legislation addresses the definition of the lease year. The lease year is
from January 1 to December 31 and leases expiring on December 31 of the
year of expiration. The restriction applies to all leases except for
geothermal, oil, gas or mineral. The legislation would also exempt
commercial leases. The last few years the State Board of Land
Commissioners has acquired commercial buildings in the capital mall area
for office and retail uses. The lease terms for those types of uses usually
runs from one to three years and now all of them expire on December 31
for negotiations. He noted December 31 is the slowest time of the year for
getting new tenants or moving tenants. The Division of Financial
Management has requested the lease period for state entities occupying
endowment owned facilities be based on the state fiscal year rather than
the calendar year.
Motion Motion by Senator Little to send H 44 to the floor with a do pass
recommendation; seconded by Senator Schroeder. Motion carried.
H 284 Chairman Noh welcomed Chairman Stevenson in attendance.
Clive Strong, Deputy Attorney General, Chief, Division of Natural
Resources, stated the effects of H 284 on the local public interest body of
law are set forth and compared in the handout. (A copy is attached.) He
noted it was important to review the issue and the intent of the sponsors.
The office of Attorney General does not have a position on the proposed
legislation. The intent encompassed reviewing and preserving the original
definition of local public interest and as set forth in Shokal v. Dunn. The
local public interest is defined as the affairs of the people in the area
directly affected by the proposed use. That language has remained
unchanged since it was originally enacted. He noted it was important to
keep in mind that there are two aspects of a legal decision. There are the
general discussions of the case, but the critical aspect and interpretation of
the case are the holding effects that bind the parties. The courts sometimes
make other statements that are not necessary to the decision and they are
referred to as dicta. That dicta language is often being used by attorneys to
try and predict what the outcome will be by a future court, but it is not the
controlling part of the decision. The court in the future can ignore dicta
but is required to follow the holding in the case. He noted this is a critical
aspect of considering and comparing H 284 with Shokal. Under the
interpretation of the statute, the court in Shokal placed the burden of
production of evidence upon the party that has knowledge of the issues
before the court. In terms of an application for a water right, an applicant
has submitted a project to DWR for review and approval of the application
for a water right. The applicant has the burden to show what effect the
proposed use would have on the local public interest. If the application is
protested because the intended use would adversely affect the protestant,
the protestant has the initial burden to set forth the evidence. The next
level concerns the burden of proof and who has the responsibility to
provide the evidence in order to prevail on the issue. Under Shokal the
burden of proof is on the applicant. The applicant must overcome any
allegations about the impact on the local public interest presented by the
protestant. Those provisions would not be changed by the proposed
legislation, H 284.



Strong noted the real issue in the legislation is the discretion of the director
of Department of Water Resources as to the elements he may consider and
what weight to accord those elements and whether there was sufficient
evidence to resolve the dispute over the local public interest impact.
Strong said the important policy language to consider is the use of the term
local public interest and if the Legislature intended to include any locally
important factor impacted by the proposed appropriation. He stated the
Fifth District Court in the K&W Dairy case held that any impact of the
proposed activity, whether it was related to water or not, could be
considered. The proposed legislation would set out that the director’s
discretion would have some side boards. Those side boards are that if the
issue is a matter of local public interest, you have to show that the element
of public interest is related to the public water resource. He stated that is
the critical change proposed by H 284.



Upon inquiry from Senator Cameron, Strong stated the language is not
always so precise as to present an absolute conclusion. Reasonable
interpretations differ and that results in court clarification. Generally
courts restrict their decisions narrowly because they cannot foresee all the
alternatives. The Legislature enacted the statute and has the final authority
to interpret the statute as the Legislature determines is consistent with
public policy.



Upon inquiry from Senator Kennedy, Strong stated it was important in
discussion of the Shokal decision to remember how the case ended.
Strong stated his interpretation is that all aspects are included under the H
284. In terms of the elements of local public interest, what is set forth in
Shokal is direction to the director to use broad discretion in looking at the
local public interest and take into account the many factors. The court did
not define at that time what local public interest was, but stated the
definition would be known when seen. It becomes difficult to figure out
where the local public interest criteria are going with the decisions in
recent cases because the full extent of the local public interest is not
known until the court rules. H 284 still leaves broad discretion with the
director to consider the local public interest, but there must be shown some
connection to the public water resource. The policy choice to be made is
whether the Legislature sets forth the intent of the statute or the issue
proceeds through the courts for determination. Upon inquiry, Strong
stated H 284 does not change the Shokal decision. He does see H 284
changing the interpretation of the guidance given by the District Court in
the Fifth Judicial District case of Chisholm v. DWR and K&W Dairy. In
that case, the issue is what does the guidance mean and the interpretation
by the Fifth District Court of an unending and open interpretation of the
local public interest on the public water resource? H 284 would change
the interpretation of the decision by the Fifth District Court as not being
consistent with Legislative intent.



Upon further inquiry, Strong stated that under Shokal an appropriation
could not occur that will impact the ability to maintain a minimum stream
flow. In discussions with the drafters of the legislation, there was a
concern to resolve the issue so that people would not make the argument
that you ought to be able to establish a minimum stream flow water right
under the local public interest.



Strong noted an important issue, such as a dairy lagoon discharge, will
result in litigation and whether H 284 would resolve the issue. He stated
whenever there is new legislation, it creates its own set of litigation for
interpretation. This legislation will result in litigation determining the
intent of the Legislature.



Upon further inquiry, Strong stated there is language in the legislation
intended to address interbasin transfers. Basins can be large or small so it
becomes difficult with specific language, but the idea is if there is an area
with a water supply and the effect of the appropriation would be to
dewater that area for the benefit of another. The effect of the local
economy needs to be considered in that context. Strong stated, based on
his knowledge, the legislation would not allow or facilitate the diversion of
water out-of-state because the legislation addresses, specifically, transfers
from one basin to another. In addition, he stated other statutes speak
specifically to out-of-basin transfers and the legislative requirements for
dealing with those. He does not interpret H 284 as impacting the ability to
divert in or out-of-state, but there are other statutory provisions to restrict
out-of-state diversions. Water is defined as an article of commerce and
subject to the commerce clause under the United States constitution.
There will be constitutional issues as to how far the state can go in
protecting its water supply for in state uses.



Upon further inquiry, Strong stated there would be side boards on the
director’s discretion. He noted it was clear under H 284 that the director
can take into account the full economic benefit of the proposed activity
because under Shokal if one side of the activity is considered then the
other side must be considered.



Chairman Noh informed the Committee of a recent report wherein the City
of Denver has had discussions with the City of Pocatello about the
possible purchase for the city’s storage water in Palisades Reservoir. It
was inferred that H 284 would facilitate such a transaction. Strong stated
H 284 would not facilitate such a transaction but as long as man tries to
harness the west, there will be continued proposals for out of basin
transfers.



Upon inquiry from Senator Stennett, Strong stated he believed there were
less than 10 dairies denied permits based on the local public interest
criteria.



Upon inquiry from Senator Cameron, Strong explained the permitting
process for siting applications. He noted in many counties there are local
ordinances for siting permits along with the state water quality process.
There are requirements of the Department of Agriculture to meet nutrient
plans and treatment facilities. Typically the water right application is
better filed toward the end of the process because some of the
considerations will have been addressed. The issue is the adequacy of the
other mechanisms to address the concerns rather than the water right
process. The local public interest has become the vehicle to address the
inadequacies of the other provisions of the law. The goal is to assure
public hearing processes to addresses all issues.



Senator Stennett noted that all the county needs is an application for a
water transfer. They do not have to hold a water right. All that is
necessary to begin the county process is the filing for a water application
with DWR. Whether the county holds a public hearing is different from
county to county. Chairman Noh noted that the controversy concerning
odors and dairies will not be eliminated by the passage of H 283 and/or H
284. Stennett further noted that in the Hagerman Valley there has been
significant time and money invested, including the String of Pearls, state
investments in a system of parks, toward the development of a recreational
area. Odors are definitely in conflict with the recreational use the valley is
trying to achieve. Strong stated the legislation is a public policy question
and how the secondary effects of particular activities should be handled. It
is reasonable public policy debate whether the odor issue should be
addressed through the local public interest through DWR or whether it
should be handled by other entities. The appropriate way for public policy
to resolve the issue is to address the issue through the alternative process,
not through DWR. The question then becomes whether the alternative
process is adequate. Stennett noted the Hagerman Valley sits in two
counties, so it has a minimal voice. Strong further stated H 284 will not
change the effect of the other authorities concerning the public water
resource. In the instance of an issue of water quality, DEQ is responsible
for the issue. DWR would give deference to DEQ in relation to water
quality issues. Strong noted if there is an air quality issue it would not be
a local public interest issue under DWR with H 284.

Motion Motion by Senator Little to send H 284 to the floor with a do pass
recommendation; seconded by Senator Brandt.
Substitute
Motion
Substitute motion by Senator Kennedy to hold H 284 in committee;
seconded by Senator Stennett.
Roll call vote on
substitute
motion:
Ayes: Kennedy, Schroeder and Stennett

Nays: Brandt, Cameron, Little, Pearce, Burtenshaw, Williams and Noh

Substitute motion failed.

Roll call vote on
original motion:
Ayes: Brandt, Cameron, Little, Pearce, Burtenshaw, Williams and Noh

Nays: Kennedy, Schroeder and Stennett

Motion carried.

There being no further matters to come before the Committee, the meeting
was adjourned at 2:50 p.m.






DATE: April 7, 2003
TIME: 2:00 P.M.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Senators Cameron, Schroeder, Burtenshaw, Williams,
Brandt, Little, Stennett, Kennedy
MEMBERS
ABSENT:
Senator Pearce absent.
The meeting was called to order by Chairman Noh at 2:05 p.m.



Representative Bert Stevenson thanked Chairman Noh for his efforts in
behalf of H 284 this session.

H 294 Representative Bert Stevenson explained H 294 as legislation to enable
the transition from federal management to state management regarding
wolf conservation and management. He noted the issue of wolf
reintroduction in the Legislature began in 1987 by prohibiting the
Department of Fish and Game from participation in the program or
management. He reminded the Committee that during the Legislature’s
organizational session, this year, information was presented that now was
the time to allow the Department of Fish and Game to participate in the
management process.



The Office of Species Conservation would remain as the lead state
agency in the management of wolves as is stated in the wolf management
plan. The plan for operation would be the wolf management plan passed
by Legislature in 2002. He noted the Legislature is to be keep advised of
the involvement of the Department of Fish and Game with the wolf
management plan. The proposed legislation also urges the coordination
of the Office of Species Conservation and the Department of Fish and
Game with Wyoming and Montana in the development of their plans.
Stevenson said these were the items noted by the House Resources and
Conservation Committee to be considered of importance in the revision
of the statute. The wolves are here and the state has the responsibility to
manage them.

Chairman Noh welcomed Representative David Langhorst.
Greg Schildwachter, Office of Species Conservation, stated the Governor
appreciates the strong message the Legislature has sent on the issue
because it coincides with the Governor’s message to the Bush
administration in regard to needed changes in federal policy. The
Governor’s overall strategy for managing wolves in the state is based on
some critical changes in federal policy. The Governor has written a letter
to the Secretary of the Interior. A copy of the response of March 21,
2003, from Secretary of the Interior Gale A. Norton in which she concurs
in amending the rule governing management of Idaho’s nonessential
experimental population of gray wolves is attached. Until delisting is
finalized, U.S. Fish and Wildlife Service and the Tribes will manage
wolves according to our state plan. He noted the proposed legislation
clarifies the operation of management within the state. He noted the
detail handout he has provided to the Committee; a copy is attached. He
called the Committee’s attention to the estimated time line on page 11 of
his handout.
Steve Huffaker, Director, Department of Fish and Game, informed the
Committee the department is not anxious to get into wolf management,
but is prepared to do so and ready to do the job, if asked by the
Legislature.
Upon inquiry from Senator Stennett, Huffaker stated ongoing
negotiations with the Nez Perce Tribe concerning the Tribe’s role in post
delisting is underway. The development of a memorandum of agreement
is being negotiated that would set out the Tribe’s role and the transition
process. There will be a meaningful role for the Tribe, but what that will
be is to be defined.



Senator Cameron stated his concern on page two, line six, of the language
“may assist” and why is there permissive assistance rather than
mandatory assistance? Huffaker responded there is not an option for the
department.

Schildwachter stated the permissiveness was in deference to the Office of
Species Conservation not the department. The attempt is for the Office of
Species Conservation to work together within the Executive Branch to
play whatever role is necessary. It is not the intention to be an option to
assist, but just a matter of flexibility to determine how the two roles will
be worked out. Upon further inquiry, he stated he could not think of an
example as they have found the department to be helpful in all matters.



Senator Burtenshaw inquired as to the funding set forth in
Schildwachter’s handout on page 10. Schildwachter noted there are two
federal budgets which provide the funds for the project. The $1,300,000
is divided equally among the states of Idaho, Wyoming and Montana,
which is through the Department of Agriculture’s budget to the Animal
and Plant Health Inspection Services. He noted APHIS has been a part of
the project since before the wolf reintroduction in regard to control and
damage complaints. They are a key partner with the state. The other
funds come through the Department of Interior budget to the Fish and
Wildlife Service. He noted the exact amounts for these different budgets
are yet to be determined.



Schildwachter noted that with the increased number of wolves in Idaho
there is more work to be done than in the past. The only field team to do
the field work was the Nez Perce Tribe. The funding enhancement in the
Idaho program for field work will be split between the state and the tribe.
The key component is to move forward with the tribe to get the job done.



Upon inquiry from Senator Stennett, Schildwachter stated the 2003
budget allowed for an increase of $250,000, which is less than half of the
requested amount. OSC is in discussions with the Fish and Wildlife
Service and the Nez Perce Tribe as to what needs to be done the rest of
this year. The intention for the funds is the same as set forth for the
$460,000 projections. He noted those key elements to be understood in
elk management when wolves are in the area relate to production, such as
the number of calves born and number of calves which survive. $200,000
will go into that study which is an enhancement of the monitoring already
taking place. $100,000 will go toward a cooperative position to be
established within the state system for on-the-ground efforts presently
provided by the Fish and Wildlife Service. Another $100,000 is for the
county partnership depredation program. The program is called Wolf
Depredation Compensation, which has been developed with the county
commissioners in the effective counties, but is available to anyone in the
state. This will pay for losses which are not paid for with current
depredation programs. $60,000 is planned for an information and
education program which would probably be contracted. He noted these
are all items required in the wolf management plan.

Representative David Langhorst informed the Committee the wolf issue
has undergone a significant transition and now is the time to proceed with
state management by passing the legislation.
Motion Motion by Senator Little to send H 294 to the floor with a do pass
recommendation; seconded by Senator Stennett.
Substitute Motion Substitute motion by Senator Schroeder to send H 294 to the fourteenth
order for amendment of “‘ma'” to ‘shall’ cooperate with the
legislature…”; seconded by Senator Cameron.
Roll Call Vote on
substitute
motion:
Ayes: Cameron, Kennedy and Schroeder.

Nays: Brandt, Burtenshaw, Little, Stennett, Williams and Noh

Absent: Pearce

Motion failed.

Vote on original
motion
By voice, vote the original motion carried.
HCR 22 Orville Green, Administrator for the Waste Management and Mediation
Division, Department of Environmental Quality, explained HCR 22, a
concurrent resolution rejecting a rule of the Department of Environmental
Quality relating to underground storage tanks, leaking petroleum storage
tanks, water quality standards and waste water treatment requirements.

He informed the Committee why the underground storage tank rules were
developed. It was the intent to operate the program by the state, rather by
the federal government. Seeking primacy for the underground storage
tank program was the goal of DEQ in developing the rules. He noted a
revenue neutral approach was guiding in the development of the rules and
that the proposed rules fit the state needs through common sense and
technical assistance rather than enforcement procedures. The rules were
discussed and negotiated with effected business within the state. A
committee was established several years ago for this purpose, involving a
wide area of interests in the state. He noted there are also four members
of the committee in attendance who wish to testify, along with DEQ
personnel.

Rick Jarvis, Underground storage tank petroleum person, DEQ, provided
handouts. Copies are included in the minutes.
Green stated there are some clarifications of the existing federal rules in
the proposed rules with more requirements on the tank owners to notify
the state when certain things happen and more self-monitoring. The
intent is to clarify the rules, but to allow through the use of self-monitoring and auditing, development of a program that would cost about
half of the federal program requirements. In seeking primacy, DEQ must
adopt rules which mirror the federal rules and show that the state has the
resources to implement the program. The federal program would entail
hiring inspectors and inspecting each of the facilities a certain number of
times within a certain time period. In this proposed state program, DEQ
is attempting to rely more on self-monitoring which would be just as
effective. The owner would do the inspecting and notify DEQ when there
was an issue. Any leaks would be detected earlier and fewer inspectors
would be required. This step would be the first in an effort to gain
primacy from the federal government. He noted it would require showing
that the state program was as effective as the federal program. He
anticipates it will take a couple of years to establish that the state can
achieve a better result. Only about half of the underground storage tanks
comply with the rules presently and a technical improvement effort could
improve that data. He noted when tanks do leak the average cost if
approximately $50,000 for a contamination cleanup. Those costs could
be drastically curtailed if the leaks were caught when they begin.



Senator Schroeder inquired if there was anyone in attendance in support
of the rule rejection. Senator Little noted that Carl Bianchi is shown as
the sponsor, but actually is not. Chairman Noh noted the legislation came
from the House Environmental Affairs Committee.



Senator Cameron noted the rule change proposed by DEQ is to allow for
underground tank owners to monitor their own equipment, but where is
that language contained in the rules? Green stated one of the handouts
shows the changes between the federal and state rules. A copy is attached
to the minutes.



Jarvis introduced a few members of the advisory committee which
included the Idaho Petroleum Marketers, the state fire marshall, and
others.



Green informed the Committee that originally the rule was accepted by
the House Environmental Affairs Committee and then later rejected. He
is unaware of the reason for the rejection. He noted originally section 51
on page 56 addressing automatic line leak detectors. This language is the
same as in the federal law except that owners and operators may not use a
sump sensor to satisfy the requirement. Because that language was in the
rule, the House Committee rejected the section the first time. He noted
that section is not in the federal rules, but as a practical matter, the federal
government does not allow some sensors to be used for this purpose as a
matter of policy. Whether or not the sentence is in the proposed rules,
some sensors cannot be used because the federal government does not
allow them. In order to clarify the rules, the sentence was added because
it is federal practice to date. Because the rule is different, the state rule is
more stringent than the federal law, but not more stringent than what the
federal government requires in practice.



Senator Williams inquired whether everyone having an underground tank
must now change the monitoring device on the tanks. Green stated the
state rules would not impose anything the federal government does not
already impose. Certain tanks will be required to install the monitoring
device. He noted the question is, who is going to administer the program
that brings them into compliance if they are out. It will be either the
federal government or the state agency. Upon further inquiry, Green
stated the state rule will not change federal practice and will have no
effect on whether an individual is in compliance today. They may be out
of compliance with the federal rule already. The state rule does not affect
that. If a sump sensor is being used today, it is not allowed by the federal
government today. Senator Williams inquired, if some sensors were not
acceptable in the past why were they used in the first place. Jarvis replied
that there is a stringency standard for that particular provision. The only
way to meet that standard is through a mechanical or electrical detector,
but with the sump sensor there is a double wall line. If there is a leakage
in the line, it would flow back to the sump and set off the alarm but you
can’t demonstrate that it will meet the standard. Therefore, electrical or
mechanical line detectors are required; sump sensors are not acceptable.
Federal rules are interpreted that sump sensors are not allowed.



Steve Leonard, Leonard Petroleum, Twin Falls, noted his company is
licensed in nine states to install underground storage tanks and related
piping systems for the retail fuel industry and wholesale fuel industry. In
the processing of licensing in the western states, they must license as a
contractor but all of their personnel had to be licensed environmentally
and as underground tank handlers. Idaho does not require a contractor
license for that type of work, nor does the state require any of the
employees be trained or licensed environmentally. He stated in other
states there is a permit process required with predetermined inspections at
critical installation times. He stated Idaho should be proactive in
protecting the water resource of the state. He stated he opposes HCR 22
and support DEQ regulations allowing the state primacy. He would hope
the state regulations would be more stringent than the federal regulations.



Roger Logan, representing Gowen Chevron, stated he was a member of
the advisory committee. The goal was to try and identify how the federal
agencies dealt with the application of their requirements. The concern of
the advisory committee was to try to get more specific, not more
restrictive, in interpretation of the rules. The intent was clarification.
The proposed rules meet the advisory committee’s objective of
clarification. The federal rules do allow for sump detectors, but in
actuality the federal rules are more restrictive than the requirements. He
opposes HCR 22.

Time having expired; the meeting was adjourned at 3:15 p.m.

Chairman Noh stated the committee is adjourned at the call of the chair.






DATE: April 9, 2003
TIME: 2:00 p.m.
PLACE: Room 435
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, Kennedy
The meeting was called to order by Chairman Noh at 2:05 p.m.
MINUTES: Motion by Senator Pearce to approve the minutes of March 10, 2003;
seconded by Senator Little. Motion carried



Motion by Senator Little to approve the minutes of March 21, 2003;
seconded by Senator Pearce. Motion carried.

Chairman Noh welcomed Chairman Stevenson and Representative Bolz.



Chairman Noh informed the Committee that some aspects of the budget of
the Department of Water Resources need to be discussed since the budget
is not complete. It is important that the Committee understand how the
joint federal-state river planning operates.



Karl Dreher, Director, Department of Water Resources, provided to the
Committee four handouts: state water plan summary-tentative planning
schedule, Memorandum of Understanding between Idaho Water Resource
Board and U.S. Department of Agriculture dated August 1, 2003, the
2002-03 Conservation Agreement in the Lemhi River Basin, May 15,
2002, and the Memorandum of Understanding among Idaho, U. S. Fish
and Wildlife Service, and NOAA Fisheries concerning a conservation
program in the Upper Salmon River Area, dated January 3, 2003. Dreher
reminded the Committee of the efficiency and improvements made by
DWR beginning in 1997. Those improvements were largely complete by
the time hold backs were implemented. As a result, DWR has received the
lowest general fund increase in appropriations during Governor
Kempthorne’s administration. When a hold back became necessary, DWR
began making reductions in programs and cutting programs. One of the
areas changed was the way the department handled comprehensive river
basin plans. The department strived for ways to tie those plans to ongoing
activities to provide immediate and long term benefits to those respective
areas. The planning summary depicts which basin plans are underway and
which ones are planned, based upon priorities. He noted DWR has
completed half of the plan for the Lower Boise Valley, which is intended
to provide a framework for irrigation entities, municipalities, and
industries to use as they address TMDLs, recreational issues and flood
plain management. The other one almost completed is the South Fork of
the Clearwater Basin. He reminded the Committee, in the SRBA, the U.S.
Forest Service claimed water rights for numerous purposes. One of those
purposes was for channel maintenance under the Organic Act. He noted
Stan Clark, who previously worked for Senator Kempthorne, Governor
Kempthorne and then DWR, began negotiations with the Forest Service to
develop a better way to address the Forest Service needs. As a result of
Clark’s efforts and others, a Memorandum of Agreement was entered into
with the Forest Service for cooperative land and water resource planning.
He stated the agreement stayed the federal government’s land use planning
in the Clearwater Basin and replaced it with the comprehensive river basin
plan by the Idaho Water Board. Under the agreement, the Forest Service
withdrew the channel maintenance claims from SRBA and agreed to use
the state comprehensive river basin planning and the recommendation for
minimum stream flows which replace the channel maintenance claims.
Upon inquiry, Dreher stated the Forest Service’s agenda to gain control
over allocation of water involves the channel maintenance claim, which
are based on a certain amount of guaranteed water to be delivered through
the stream channel for the purposes of clearing the channel so water can be
delivered for downstream users. He stated a Colorado case regarding
channel maintenance claims was won by the state based on the facts. The
legal issue has not yet been resolved in any western state. There was risk
to the Forest Service if the claims were pursued in the SRBA they might
loose. There was a risk in Colorado that the state might loose as a matter
of law and both sides agreed to a review of the facts to determine what
minimum stream flows really were necessary. The Forest Service-State of
Idaho planning process identifies minimum stream flows that are
necessary and would then be established under state law as minimum
stream flows with a junior priority as opposed to using federal law with a
reserve right with a senior priority. The agreement is in place but would
be lost if additional budget cuts are necessary. DWR could loose the
ability to fulfill the agreement which would allow the Forest Service to go
back into federal planning mode. This would put them in the position of
again trying to seek a basis for a reserved water right.



Another example is the Lemhi River Basin and the conservation
agreement entered into between the state, U.S. Fish and Wildlife Service,
and National Marine Fisheries Service. The idea is to use the state water
planning function to develop the framework for on the ground habitat
projects which will provide coverage under ESA against a claim of “take”
of endangered fish. In quantifying minimum stream flows, the federal
government, in the Lemhi, was seeking a guarantee in stream flow of 60
cfs year round with little science to support their claim. The local citizens
in the Lemhi area were willing to do something to avoid this risk and
requested state assistance in establishing a minimum stream flow. A
minimum stream flow of 35 cfs that is almost never met, but a guaranteed
stream flow of 20 cfs during the critical migration period was the
negotiated agreement. The reduced stream flow was acceptable to the
federal agencies, the ranchers and irrigators in the Lemhi area while the 60
cfs would have put some of them out of business.



DWR is in the process of expanding these kinds of efforts in the Upper
Salmon River Basin which is under a Memorandum of Understanding with
federal, state and private parties; a copy of which has been provided to the
Committee. The comprehensive river basin plan in the Upper Salmon
River Basin is to start later this year. He noted that planning is tied to the
other two agreements to provide a way to develop projects that will give
coverage and protection for landowners under ESA. The budget problem
for DWR is the commitments made to federal agencies and citizens. If it
is necessary for DWR to make additional budget cuts, something in these
efforts will have to be terminated. There will be something DWR will be
unable to do. As a result, there will be a void likely to be assumed by the
federal government. The agreements and the planning process take the
place of federal regulations under ESA. He noted OSC and the
Department of Fish and Game are also involved with DWR in these
matters. Dreher stated he is concerned that those efforts which provide
immediate and long term benefits may be lost in part or totally.



Another area of concern is the Rathdrum Prairie Aquifer system and how
the sole source aquifer should be managed. The state of Washington
wants a compact which he does not favor because the federal government
would participate through the ratification process. There would have to be
statutory law by the Idaho and Washington Legislatures and the states
involved. Identical laws would have to be passed and then those laws
would need to be ratified by Congress with a compact commission
established which would be chaired by a federal appointee. Dreher stated
the state does not need that kind of involvement. This issue should be
sorted out by the two states. DWR advised Washington that Idaho’s
planning process would be moved up to quantify what needs to be done to
provide for the future water supply. Rathdrum aquifer is the sole source
drinking water supply for cities of Coeur d’Alene, Post Falls and Spokane.
There is no other water source. Ground water withdrawals in the
Rathdrum are causing some affects in Washington. The aquifer is hydro
logically connected to the Spokane River in Washington, but it is not in
Idaho which means ground water depletions in Idaho do not affect stream
flows in Idaho. The allegation in Washington is that the depletions in
Idaho are causing the reduced stream flows in Washington. The planning
process is one aspect of reviewing the issue and identifying alternatives.



Upon inquiry from Senator Little, Dreher stated if the Legislature does not
fund the project, DWR cannot do the project. He does not anticipate that
the other signators to the three agreements would be receptive to a
sabbatical because of funding for the implementation of the agreements
because a number of advocacy groups do not like what has transpired. He
feels certain that as soon as something is not done, they will file suit
against the federal agencies. If these projects are not funding, the
consequences will be considerable.



Upon inquiry from Senator Pearce, Dreher stated the funding for the
Lemhi would be for one or two positions and for the Upper Salmon that
would probably be another one or two positions, but the problem is the
planning employees are specialists in biology, engineering and economics.
That blend of expertise is required to do the work. Upon further inquiry,
Dreher stated $453,000 in program funding would be the estimated
funding required as recommended by the Governor.



Upon inquiry from Senator Stennett, Dreher replied that it was more cost
effective to add an employee than to contract because the state pays less
than what is available in the private sector. The department would be
unable to contract for less money than what is currently being paid the
department’s employees.



Upon inquiry from Senator Kennedy, Dreher noted that if some of the
efforts to date are undone now they will be difficult to reestablish and
some will not be reestablished.

Motion Motion by Senator Schroeder that the Committee recommend to JFAC that
the $450,000 be reinstated and included in the budget for DWR; seconded
by Senator Stennett.
Motion
withdrawn
Following committee discussion, Senator Schroeder stated based upon
Senator Cameron’s statement that if additional funds become available,
DWR’s budget will be given full consideration by JFAC, with the consent
of the seconder, he withdrew his motion. Senator Stennett, the seconder,
agreed to withdraw the motion.

Senator Stennett expressed concern that if the programs outlined by
Dreher, along with the Stream Channel Protection Act, are not carried out
by DWR, the federal government will step in and take control.
Ray Houston, Budget and Policy Analysis, Legislative Services, informed
the Committee the DWR budget which the Governor vetoed was about
$450,000 below the Governor’s recommendation. He noted the
Governor’s recommendation does eliminate the Stream Channel
Protection Program. JFAC’s recommendation was below the Governor’s
$450,000.

Anything below the Governor’s recommendation cuts into the director’s
next priority. Dreher stated the reason the Governor did not recommend
funding the Stream Channel Protection program was because there are no
funds. The Governor does think the program is important. Dreher has
been instructed to do everything he can to find other funds for the
program. Dreher noted he has a meeting scheduled with the Corps of
Engineers to suggest there is a role for the Corps in funding part of the
state’s program. The work load for the Corps is increasing because part of
the work was being done by DWR. The director said funds are being cut,
but statutory requirements are not being eliminated. Dreher stated the
only areas that can be cut are those where there is some discretion. These
programs are very important, but they are discretionary and there is not a
statutory requirement to perform work.



Upon inquiry from Senator Burtenshaw, Houston stated the Water
Pollution Control Fund is broke with the exception of a small amount.
Houston stated the question then becomes whether to fund the program on
a one time basis which would require a $500,000 funds shift that was not
in the legislation vetoed by the Governor. The water pollution control
fund would then be bankrupt.

HCR 22 Chairman Noh noted to the Committee a letter from the Idaho Retailers
Association in reference to HCR 22, along with a letter from Realtors
Association indicated their support and participation in the process and in
opposition to HCR 22. He further advised the Committee that Mr.
Jackson, one of the petroleum marketers association representatives on the
advisory Committee, stated he had no position on the measure.
Additionally the Chairman stated lobbyist for the association is unable to
attend, but stated the association does not have an official position and did
not testify in the House hearing. He noted there have been a number of
telephone calls from members of the association.



Representative Jack Barraclough explained HCR 22 proceedings in the
House Environmental Affairs Committee and introduced Representative
Raybould, Vice Chairman of the House Committee, for further
explanation.



Representative Raybould stated the reason for the House Committee
rejecting the rule was the concern of stringency as compared to EPA rules.
Raybould stated Orville Green from DEQ informed the Committee some
of the rules were more strict than the federal rules. DEQ felt they could
have some efficiency operating under the rules and reduce costs. An
additional concern of the Committee was that there is only one place in the
rules which defines a farm storage tank. The definition for farm storage
tank is 1100 gallons and they are many farms with more storage than 1100
gallons. Raybould stated rules would need to be promulgated specifically
for those considerations. The biggest concern by the House Committee
was the installation of automatic leak detectors be installed. He noted the
underground storage tanks were updated and brought into compliance with
the federal rules prior by 1999. There were many upgrades completed but
without the automatic leak detectors installed on the piping between the
submersible pumps and the fuel tanks and the dispensers. To do that now
would required significant expense even though the leak detector is only
$300 to $400. The cost of installation would be high after just completing
the installation of new tanks and replacing the concrete. Another issue
considered by the House Committee was there was not a provision for
transfer of records from the present owner of an installation to another.
The House Committee decided ,with the Department of Environmental
Quality, that the rules would be rejected. DEQ would then promulgate
new rules that would address the concerns and submit them to the
Legislature next year. If the proposed rules are rejected, the existing rules
would still remain in effect. Upon inquiry, Raybould stated if the EPA
rules were more strict than the present state rules, the EPA rules would
take precedence.

James H. Werntz, Director, Idaho Operations Office, Environmental
Protection Agency, stated the proposed rules by DEQ were developed over
a two year period with members of the industry to provide the building
blocks needed for the state to have primacy over the underground storage
tank program. Idaho is last among the 50 states in regulations of
underground storage tanks and EPA currently runs the program. EPA is
supportive of the state developing a program to meet the needs of the state
better than EPA. EPA’s cursory review of the rules proposed indicates
they are a step forward. He noted the state program follows the federal
program with some Idaho specific modifications which will enable station
owners to come into compliance with the ongoing more stringent federal
rules. He informed the Committee S 195 pending before the U.S.
Congress will increase the number of inspections required and requires
that states must have an underground storage tank program. The
authorization is in the range of $2,000,000 to $3,000,000. He stated the
underground storage tank program is a pollution prevention program. The
proposed regulations by DEQ are a positive step but EPA is committed to
carrying out the federal mandates under the program. Upon inquiry,
Werntz stated 18 states have primacy, but 49 states have a stronger
regulatory framework than Idaho.
Erik Sirs, Underground Storage Tank Compliance Officer, Environmental
Protection Agency, stated Washington has a full primacy program with
their own rules and inspectors. Oregon has rules in place and are applying
for primacy so EPA works with Oregon to run the program. Idaho is a
state without regulations for operating systems in compliance. Upon
inquiry, Sirs stated the proposed Idaho rules are only a clarification. One
area of contention is the sump sensor issue. The federal rule does not
allow the sensor so some sensors can be used as a leak detection for piping
as long as they meet the leak detection standards. There are catastrophic
and monthly numbers for the systems. He noted how EPA approves the
systems which have not been independently tested by third party
laboratories for approval to meet the federal standards. EPA allows the
system to be used but they must be individually tested by a professional
engineer before the system can be certified. He stated the federal
requirement has been in place for a long time. The tendency across the
country is that state’s are disallowing the sensors. Oregon, Alaska and
Montana are a few of the states which have eliminated the sensors by state
rule. From a technical standpoint, there is evidence of twenty to forty
percent failure to detect leaks. Sirs stated over half of the sump sensors
are not even properly installed. Upon inquiry from Senator Williams, Sirs
stated the majority of the leak detection systems that are in place and
commonly used are systems with automatic line leak detectors. Ninety-five percent of the installations in Idaho are mechanical. He noted there
had been some interpretations by service companies and vendors in the
past was that sump sensors were allowed. EPA has clarified in their
policy that they can be used but they have to meet the criteria of third
party evaluation. Enforcement has been discretionary by EPA. Many of
his warnings have been verbal and have not progressed to the written
citation. This year, from now on, those systems, approximately 5 percent
of them, will have citations issued by EPA.
Time having expired; the meeting was adjourned at 2:15 p.m.






DATE: April 14, 2003
TIME: 3:00 p.m.
PLACE: Room 435
MEMBERS
PRESENT:
Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder,
Burtenshaw, Williams, Brandt, Little, Stennett, Kennedy
The meeting was called to order by Chairman Noh at 3:05 p.m.
MINUTES: Motion by Senator Burtenshaw to approve the minutes of March 17, 2003;
seconded by Senator Brandt. Motion carried.



Motion by Senator Williams to approve the minutes of March 19, 2003;
seconded by Senator Burtenshaw. Motion carried.

HCR 22 Chairman Noh explained to the Committee the procedure for consideration
of HCR 22 and the effects of sending the legislation to the floor for
consideration or holding the legislation in committee.
Upon inquiry from Senator Kennedy, Orville Green, Department of
Environmental Quality, explained the two rules set out in the legislation
for rejection. He explained 0202 would move the existing rules from
water quality into the new rule package while 0201 would be the new
proposed underground storage tank rules and just one set of rules.
Dennis Stevenson, Department of Administration, Office of
Administrative Rules, verified Green’s explanation of the two rules.
Keith Donahue, Deputy Attorney General, Department of Environmental
Quality, confirmed and reiterated Green’s explanation of the two rules.

If HCR 22 is passed, it will reject the proposed rules by DEQ. What
would remain on the records would be the current set of rules by DEQ for
leaking underground storage tank in the water quality standards. Upon
inquiry from Senator Williams, Donahue stated there are eleven points in
the rules that vary from the federal program.



Chairman Noh provided to the Committee a copy of a press release, April
10, 2003, relating to the action by EPA against Cowboy Oil Co., Pocatello.
The action began in May 1998. In the press release, the state director of
EPA stated “the action reflects the regulatory reality of underground
storage monitoring in Idaho.” EPA’s action is driven by the fact that
Idaho does not have approved rules for the underground storage tank
program. EPA will continue to enforce the program until DEQ receives
primacy for the program. DEQ is able to investigate and report the
leakage and is working with the owner/operator to clean up the site.

Erik Sirs, Environmental Protection Agency, Enforcement, informed the
Committee of an action taken by EPA against Cowboy Oil Co. of
Pocatello with proposed penalties last week. He noted the original
inspection in 1998 noted numerous violations. A subsequent inspection
found the same violations again and the required upgrades had not been
completed as of 1998. The violations were repetitive violations and
accumulate on a daily basis which results in a significant fine. Upon
inquiry from Chairman Noh, Sirs stated if Idaho had primacy or the new
rules had been effect, Idaho authorities could have advised and worked
with the violator to prevent the violation from reoccurring.
Steve Allred, Director, Department of Environmental Quality, stated the
state has the responsibility once the tank leaks to take care of the problem.
About 25 percent of the tanks begin leaking after a period of time. The
inspection, regulation and maintenance to assure they do not leak is not
part of the state’s responsibility. Allred stated the situation is DEQ cannot
do anything to stop the cleanup from developing but have the
responsibility for problem after it is detected. The estimated average cost
for cleanup of a tank is approximately $50,000. The federal program is
more enforcement than prevention because EPA does not have enough
inspectors. If the proposed rules had been in place, DEQ would have been
involved in negotiating solutions. He stated the state needs to be
participating earlier in the process to prevent leaks, rather than after the
leak.



Upon inquiry from Senator Kennedy, Allred stated under the negotiated
rules the department would be operating the program at the state level.
The department is in favor of the proposed rules and opposes HCR 22.
He noted the rules were negotiated and developed by a group of stake
holders and it is the best way for the state to address the problem. Allred
further stated there are also liability concerns to be considered. He noted
in real estate transactions prior leakage violations must be disclosed.



Upon inquiry from Senator Little, Allred stated EPA pays the department
$250,000 annually for different services. The costs for implementation of
the program are within the range of funds received from the federal
government. The submitted self-inspection reports would take the place of
agency inspections and thus reduce the overall costs. Allred stated he did
not anticipate a request from the department for a budget increase.



Upon inquiry from Chairman Noh, Allred stated the costs associated with
the cleanup are handled by the owner/operator because of liability
concerns. He noted that in a real estate transaction the violations or
leakages must be disclosed. Jarvis provided to the Committee handouts
depicting the sump sensors (copies are attached) and how they can be
installed. Additionally he passed around for the Committee’s inspect the
mechanical leak detector. Allred noted this equipment would be required
under the proposed rule which is not required under the federal rule, unless
the sump senor, on its own, is not certified to do the same task by a third
party engineer.



Upon inquiry, Sirs stated the electric sump sensor, alone, does not meet
federal requirements because it cannot stop or slow down a leak, but the
mechanical system does slow down the pumping to prevent additional
leakage. If there are stand-alone sump sensors, there would be the
necessity to add the mechanical detector on top. The cost is about $400
for the unit.

Upon inquiry in regard to farm tanks, Jarvis explained a spill bucket goes
around the fill pipe to catch any releases that may occur in delivery and a
float value is required that goes into the fill tank which will close out when
it is 90 percent full. Estimated cost for the device and installation is
between $1,500 to $2,000. Jarvis stated the proposed rules attempt to
clarify the gray areas of the federal rules. Allred further stated under the
current rules if there is a spill on a farm it must be cleaned up.

Dennis Baird, Baird Oil Company, Boise, past president of Idaho
Petroleum Marketers Association and currently on the Board of the Idaho
Petroleum Marketers Association, stated his support of HCR 22. He stated
the association does not support the proposed rules by DEQ. Baird noted
the alleged leak at Cowboy Oil in Pocatello was not a leak but a spill over
from the filling of a truck tank. There are no regulations which would
cover that situation. He noted Idaho has 17 percent of the tanks in EPA
Region 10. The ongoing cleanups in the state are 220 or 4 percent of the
total in the region. He further stated Idaho is first in the region for
compliance with the federal rules. His statistics are from EPA Region 10,
an end-of-the-year activity report on the regulated tanks. Idaho currently
has an underground storage tank fund which is an insurance fund.
Insurance with a $10,000 deductible is required. To qualify for the
insurance fund, there is an annual line test, a yearly inspection by an
insurance representative, and a daily reconciliation of the product. The
provisions for the insurance fund are a duplication of EPA requirements.
Baird stated DEQ rules are more stringent than EPA’s. He noted H 150 is
awaiting the Governor’s signature and states that the rules should not be
more stringent than federal rules without a scientific basis. This becomes
effective July 1. Baird cautioned that the mandatory monthly self
inspection report would evolve into a mandatory fee program. The
proposed rules will cost more and not protect the environment any better.
Baird stated DEQ has stated there would be eight to 10 inspectors for the
program and wonders who will be funding the program. Upon inquiry,
Baird stated there were two members of the association on the advisory
committee (which negotiated the rules), but the majority membership does
not want the proposed rules.
Suzanne Budge Schaefer, Idaho Petroleum Marketers and Convenience
Stores Association lobbyist, provided a statistical handout to the
Committee (a copy is attached). She stated if DEQ is to administer the
leak detection portion of the federal rules, the rules should not be more
stringent than federal rules. She inquired as to how the program would be
funded. She noted Idaho is in good shape compared to the other states as
indicated by the national statistics. The proposed rules are more stringent
in that they eliminate regulatory options which are currently available
under federal law. Vapor monitoring, ground water monitoring, secondary
containment, control for new systems, five years monitoring with tank
tightness test, and the catastrophic line leak detection are some of the areas
with increased stringency. Eliminating the federal deferral for emergency
generators is another example of the proposed rules being more stringent
than federal law. Another critical issue is that the proposed rules extend
the chain of liability to include common carriers and make carriers
responsible for enforcement through red tagging. A definition is added in
the state proposed rules for common carrier which is not in the federal
rules. She stated the membership of the advisory committee was
composed of seventeen people with two members representing the
industry. Other members of the committee were DEQ employees,
installer, realtors, and bankers. She stated the association was not
appropriately engaged. She further stated the record keeping requirements
by the proposed rules have many more specific requirements that would be
imposed on the industry than the federal rules. .
Norm Hobson, Dale’s Service, Inc., Boise, a petroleum equipment installer
for more than twenty years. His father founded the first such company in
Idaho in 1949. He stated there were two reasons why he should not be
testifying in support of HCR 22. As an installer, the proposed rule could
be potentially economically beneficial to his company. The second reason
he should not be testifying is because he is currently involved with
inherited real property that is under DEQ action. Hobson stated he would
rather deal with DEQ than EPA on this action because the intentions of
DEQ are honest and sincere. He noted DEQ has staff to handle the
requirements under the proposed rules and does a great deal currently in
regard to education. He stated EPA has a very good record in the state of
implementing the federal rules. He then stated if it isn’t broke, don’t fix it.

Hobson stated in the late 1980’s an insurance program was developed that
is funded by the state. It is almost entirely state funded. Those who
participate in the program pay a fee which is not related to the economic
reality of insuring the tanks against spills. The first $10,000 of the costs
for a spill are the responsibilities of the owner/operator, but the balance
comes from state funds. If the proposed rules go into effect, it would be
necessary to change enabling legislation for the insurance fund because
the insurance fund requires that the underwriting of that insurance cannot
take into account anything more stringent than the current EPA
regulations. Hobson stated the pressure monitors are required by the fire
code. The fire codes are just as valid as any other regulations taking care
of the fuel in the tanks. He urged the committee to send HCR 22 to the
floor with a do pass recommendation so the proposed rules would be
rejected.

Jase Houson, professional engineer, representing Association of Idaho
Cities, and works for the City of Nampa, was a member of the task force
for approximately two years. He expressed concern regarding the local
public safety. He reminded the committee of an incident several years ago
in Caldwell, when petroleum leaked into the sewer lines, someone threw a
cigarette in the sewer and the manholes were blown out. He stated there
should be more care in how the fuel is delivered and handled. He noted
more important is how the facilities are constructed for storage. He urged
the Committee to hold HCR 22 and let the proposed rules go into effect.



Representative Meyer stated the House Environmental Affairs Committee
rejected the proposed rules on the stringency issue. He is a board member
of the State Insurance Fund which has oversight over the petroleum
storage tank fund. There is a new state insurance board to take effect as of
July 1, 2003.

Fred Knehans, Boise, a banking associate, was a member of the advisory
committee for the proposed rules representing the Idaho Bankers’
Association. He stated he has not had an opportunity to discuss this issue
with members of the Idaho Bankers’ Association so he presents his
testimony as a committee member and a private citizen. The prevailing
idea during committee negotiations was for a preventive program so funds
do not have to be expended for clean up. The insurance trust fund came
from an increase in the gasoline tax within the state. If the trust fund is
below a certain level, the gasoline tax will be raised to refund the trust
fund. He supported H 22.
Motion Motion by Senator Pearce to send HCR 22 to the floor with a do pass
recommendation; seconded by Senator Williams.
Substitute
Motion
Substitute Motion by Senator Schroeder to hold HCR 22 in committee;
seconded by Senator Stennett.
Vote on
substitute
motion
Ayes: Kennedy, Schroeder, Stennett and Noh

Nays: Brandt, Burtenshaw, Cameron, Little, Pearce and Williams

Substitute motion failed.

Vote on original
motion
Ayes: Brandt, Burtenshaw, Cameron, Little, Pearce, and Williams

Nays: Kennedy, Schroeder, Stennett and Noh

Motion carried.

There being no further matters to come before the Committee, the meeting
was adjourned at 5:20 p.m.






DATE: April 23, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Senators Cameron, Schroeder, Burtenshaw, Williams,
Brandt, and Little
MEMBERS
ABSENT:
Senators Pearce, Stennett and Kennedy excused.
The meeting was called to order by Chairman Noh at 1:40 p.m..



Chairman Noh explained the purpose of the Executive Session meeting.
Court orders filed in the two litigation actions prohibit the release of
confidential information as a part of the mediation process. A copy of the
court order in SRBA Case No. 39576, Nez Perce Tribal claim, is attached.
Chairman Noh noted in the other litigation, Wild and Scenic rights, the
parties are prevented from releasing copies of the court protective order
issued in that mediated action.



Chairman Noh informed the Committee a current opinion of the Attorney
General has been obtained by Senate leadership, confirming the legality of
the Executive Session to be conducted by the Committee. A copy is
attached.



Chairman Noh stated he had met at length with Betsy Russell, President of
the Idaho Press Club, explaining the protective orders from the courts
which preclude discussions in open sessions under penalty of contempt of
court and the critical nature of the legislative participation in the
mediation. She was provided with a copy of the protective order covering
the Nez Perce Tribe mediations. Clive Strong, attorney for the state of
Idaho in the mediations, and Chairman Noh offered to meet with Ms.
Russell yesterday afternoon or this morning. It was not possible to
provide a copy of the protective order for the Wild and Scenic mediations
because the order explicitly prohibits providing a copy of the order to the
news media. Ms. Russell requested that the press club attorney, Allen
Derr, be involved which was satisfactory. Other legislative events
precluded her from meeting. She had also suggested that Kevin Richert,
Editorial Page Editor, Idaho Statesman, also participate if a meeting could
have been arranged.



Clive Strong, Deputy Attorney General, Chief, Natural Resources
Division, further explained to the Committee the background and reasons
for the need to maintain the confidentiality of the mediated actions.

MOTION Motion by Senator Brandt, pursuant to Senate Rule 20(E) and Idaho Code
Section 67-2345(f), that the Committee resolve into an executive session
for the purpose of considering and advising legal counsel on pending
litigation relating to federal reserved water right claims filed in the Snake
River Basin Adjudication; seconded by Senator Williams.
Roll call vote on
motion:
Ayes: Brandt, Burtenshaw, Cameron, Little, Schroeder, Williams and Noh

Nays: None

Absent: Kennedy, Pearce and Stennett.

Motion carried.

Betsy Russell, President, Idaho Press Club, respectfully objected to the
closure of the meeting on the grounds that it would violate the Idaho Open
Meeting Law which states, “All meetings of any standing, special or select
committee of either house of the legislature of the state of Idaho shall be
open to the public at all times.” She requested that the objection be noted
in the minutes.
Executive
Session
The Committee went into Executive Session at 1:55 p.m.
Reconvened Motion by Senator Brandt to adjourn the Executive Session at 3:00 p.m.;
seconded by Senator Williams. Motion carried.
HJM 12 Representative Cuddy informed the Committee of HJM 12, stating
findings of the legislature and requesting that the U.S. Congress fully
support the Healthy Forest Initiative and individual proposals of the
United States Department of Agriculture and Department of Interior. He
noted the risk of wildfire and forest health. In 2000, 1,400,000 forest acres
were burned while another 8,600,000 were at risk due to insects, disease
and fire. He noted passage of the joint memorial is an indication of
support for the U.S. Department of Agriculture in the implementation of
measures to improve forest health and to reduce damage to the
environment and loss of natural resources by wildfire.
Motion Motion by Senator Little to send HJM 12 to the floor with a do pass
recommendation; seconded by Senator Brandt. Motion carried.
Senator Williams commented and complimented the timber industry mills
for their innovative and technical improvements to utilize more of the
timber for production.
There being no further matters to come before the Committee, the meeting
was adjourned at 3:05 p.m.






DATE: April 28, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Senators Schroeder, Burtenshaw, Williams, Brandt,
Stennett, Kennedy
MEMBERS
ABSENT:
Senator Pearce absent; Senators Cameron and Little excused..
MINUTES: Motion by Senator Burtenshaw to approve the minutes of April 23, 2003;
seconded by Senator Williams. Motion carried.
Chairman Noh provided to the Committee a copy of a Boise Police
Department news report of the death of a thirteen-month-old child by a
wolf-hybrid. Chairman Noh informed the Committee of the legislative
history of private ownership of wolves or wolf-hybrids. The legislature did
attempt to address the concern, but the proposed legislation did not come
out of committee.
Depredation
account
Chairman Noh informed the Committee of House appropriation legislation
which uses a $1,000,000 from the depredation account to address state
budget concerns.
Dr. Kent Marlor, who represented wildlife in the beginning of the
depredation account and advisory committee, stated in 1989 legislation
transferred $500,000 from the Fish and Game Account for a depredation
account. The account was to compensate farmers and ranchers for big
game depredation losses to crops, fences and equipment. He noted the
losses in 1988/89 were significant due to the multiple year droughts which
resulted in big game foraging in cultivated fields. The claims were
submitted to the State Board of Examiners with the state auditor
responsible for authentication of the claims and supervision of the claim
process. In June 1990 at the close of the filing period, there were 111
claims filed for 1988 totaling $l, 390,317 and for 1989 93 claims were filed
totaling $454,198. Priority was given to the 1988 claims, but with a
prorated reduction. The attempt by the Board of Examiners to address the
issue was futile. Everyone in the state was angry and agriculture was
furious. People in the wildlife area were also concerned because $500,000
had been taken from the budget of the Department of Fish and Game.



During the following legislative session of 1989, a wildlife depredation
committee with legislative oversight was established to report to the 1990
Legislature. Enabling legislation was passed in 1990 following the final
recommendations of the committee for the implementation of a depredation
policy. Members of the committee were Dave Bivens, Stan Boyd, Frank
Higgins, Vange Ingram, Bill Youngert and Dave Nelson. Sportsmen were
represented by Steve McGrath, Eric Crosshead, Ed Mitchell, Don Clower,
Kent Henderson and Dr. Marlor. Once the total agreement was completed
and because all the elements of the agreement were tied together, any
removal of any element was tantamount to voiding the entire agreement.



The agreement featured the creation of a $2,250,000 two-tiered fund to
compensate agriculture for depredation related losses. The compromise
agreement required the Department of Fish and Game to develop a
comprehensive depredation prevention program. The funds for agriculture
were only to be paid where the department could not prevent the
depredation from occurring. There was a quick response component in the
program. All elements of the agreement were predicated on the prevention
program. Funding was based on an annual $200,000 Department of Fish
and Game contribution to fund the depredation account. Unexpended funds
were to be returned to the department, but were dependent upon the second
component of the agreement. A secondary depredation account was to be a
trust account funded by $1,000,000 from the state general fund along with
$1,250,000 from the department. The two programs interrelated and none
of the elements could be excluded in order for the programs to work. It was
determined that once the fund, with the payment of expenditures and
interest accruing, reached $3,000,000 wildlife habitat restoration and access
would be the focus of any additional funds. This is the first year for the
surplus which can now be used for wildlife habitat restoration and access.
The agreement also provided for a quick response prevention program to
meet the needs of agricultural interests. Marlor noted the committee was a
volunteer group which held meetings all over the state. Claims procedures
were developed through extensive compromise. The Department of Fish
and Game was required to develop a program of landowner-sportsmen
relations officers. There was to be a field officer in each region of the state
who would focus on the depredation. The regional officers cost the
department approximately $500,000 annually. The staffing requirement
was a necessary component of the final agreement which the department
had to sign off on. He noted other examples of compromises were
applicant eligibility being dependent upon reasonable access to hunters to
lands submitted for claims. The provision was required in order to allow
the department to use harvest as a tool for reducing the depredation.



A disagreement concerning livestock losses on public lands resulted in a
compromise of a $5,000 deductible, but other losses required a $1,000
deductible. There was a $25,000 annual limitation for claims by individual
landowners. He noted claims were to be paid from the secondary account.
Arbitrators were established to settle conflicting claims. Settlements were
to be based on an “either/or” proposition based on which two of the claim
figures were closer to the arbitrator’s determined figure for loss.



Marlor noted there were many compromises resulting in a check and
balance system. The agreement was a bundle of compromises providing a
workable method of handling the depredation within the state. The
agreement has served agriculture and wildlife communities very well. He
noted the committee was well aware that the legislation would need fine
tuning over the years. Marlor stated that there was never an agreement in
the committee that was not developed on substance without unanimous
consent.



Some of the subsequent changes have been the addition of goats in the
livestock definition and honey losses are covered. The deductible for
livestock depredation has been reduced to $1,000. The $25,000 annual
limit on claims has been eliminated. If there is a second year depredation
on a land parcel, the $1,000 deductible is eliminated.



There have been no changes in the secondary depredation account and this
is the first time that funds can be used for habitat restoration and access.
This will provide partial funding of the newly approved “Access Yes”
program which has been developed through unanimous consent of the
committee. This program will enable access to and across private property
and allow landowners to have benefit from the access.



Marlor noted there can always be improvement in a program, but the
system has worked and has provided a method to address depredation
problems. The need for arbitration has decreased significantly. The
prevention program has been successful.

Dave Bivens, an original member of committee establishing the
depredation account, stated his personal, political and Senate experience as
chairman of the Fish and Game Committee, predecessor to the Resources
and Environment Committee. He represented the Farm Bureau on the
original advisory committee. Bivens noted there has always been a
problem concerning depredation and public access to private lands.
Representative Walt Little was the first one to create the proto type
landholder-sportsmen organization in cooperation with the department.
Representative Vard Chatburn was Little’s successor on this issue until
1988 when the negotiating committee was established and subsequent
legislation. He noted the department provided the professional facilitator
for the committee of six sportsmen and six agricultural interests. He stated
the final agreement was a very delicate balance. Monies were provided
from the state general fund representing those who did not purchase fish
and game licenses. The funds were never to be spent, but to be used to
generate revenue. Access to or across private land has always been a
concern and a challenge to the advisory committee, the department,
sportsmen and landholders for many years. The Access Yes program is the
final product of many years of effort and provides a future for all state
citizens for outdoor endeavors. He noted the extensive time and efforts in
developing the agreement which is still an extremely delicate balance. The
program would be seriously damaged or total destroyed by the removal of
the $1,000,000 from the depredation account, which was considered
submitted in behalf of the citizens who did not contribute through hunting
and fishing licenses.



Upon inquiry from Senator Stennett, Bivens stated the $1,000,000
transferred from the general fund was with the understanding it was a one-time transfer, never to be spent, and always to be left in that fund with only
the revenues from the fund to be used. The $1,000,000 was to match the
funds taken from the fish and game account established through hunting
and fishing licenses.



Marlor stated that the department provides $200,000 each year for
depredation along with $500,000 for the regional officers as required in the
agreement. Bivens stated that on July 1 of each year the controller transfers
out of the fish and game account into the depredation program the
$200,000. Upon further inquiry from Senator Burtenshaw, Marlor stated
the amount derived from the secondary account goes for claims that are
more than $9,000 and livestock losses. All the submitted claims, which
have been investigated and certified, have been paid. The present drought
situation will place a strain on the accounts. He noted the unused portion of
the $200,000 goes back to the department.

Carl Rey, chairman of the Fish and Game Advisory Committee, provided to
the Committee two handouts, copies are attached. The depredation
program is a very complicated program which involves five statutes. The
original task force provided significant foresight in developing the fish and
game advisory committee by legislature to provide oversight of the
complicated program. The program has worked very well for fourteen
years and reflects the endeavors and foresight of the original task force.



The structure of the advisory committee comprises agricultural
representatives along with sportsmen. Six representatives, which include
the chairman in alternating years, are appointed by the director of the
Department of Agriculture and six representatives, including the chairman
of alternating years, are appointed by the director of the Department of Fish
and Game. The advisory committee has functioned on the basis of
consensuses with more than 10,000 volunteer service hours to provide
oversight of the depredation program over the last fourteen years. Rey
stated as a representative of agriculture on the committee there has been
continuous input into the decisions made by the advisory committee. He
noted the same is true of the interests of sportsmen.



The reason for the amount in the accounts is that claims tend to be cyclic.
There are sometimes three or four years without many claims and then have
a year with a significant number of claims and amounts. Rey stated it is
incumbent on the committee to protect the accounts. Under the original
basis which the legislative task force set up the accounts, there was a
partnership of sportsmen and the general public created under the premise
that the wildlife of the state belongs to more than just the sportsmen. The
vision was that the $1,000,000 out of the general fund was to represent that
component of the equation that represents the general public interests in
wildlife. The $1,250,000 placed in the accounts was given by sportsmen.
The problem with removing the $1,000,000 is the violation of a trust, the
agreement and the legislative intent of the original legislation that set up the
accounts. Rey cautioned if the $1,000,000 is returned to the general fund,
landowner-sportsmen relations would revert to where they were in 1989.
The committee recognizes that the depredation program was the original
incentive for setting up the fish and game advisory committee as an
oversight committee. The advisory committee has become a think-tank for
developing other landowner-sportsmen relation-based programs. The
landowner appreciation program now in effect is one example created
through the advisory committee. The new proposed program “Excess Yes”
has been under development within the advisory committee over the past
four years. The Fish and Game Commission this year enacted the program
based upon the advisory committee’s recommendations. The original
statutes that created the advisory committee have had the additional
benefits of establishing a foundation for forming other very valuable
programs for Idaho’s landowners and sportsmen. Rey stated if the
$1,000,000 is taken it will never be replaced because the good will
sacrificed will undermine fourteen years of efforts of the committee.



Upon inquiry from Senator Williams, Rey stated one of the most difficult
issues addressed by the committee is the qualification for claims. He noted
the underlying belief is that if there was not a deductible there would be an
infinite number of claims that could not be met by the account. The $1,000
deductible was established for that reason. Currently, claims are not filed
unless they are significant. The committee and the program have made
prevention the goal, not more claims. If a claimant has a problem and calls
the department, the department will work with the landowner to prevent the
damage from occurring. He noted the program is definitely a prevention-based program. He noted the volume of claims per year in the state is only
about thirty. The volume of claims is kept down by a good prevention
program. Marlor noted if there are repeat depredations on the same land
parcel the $1,000 deductible is waived. Rey explained that there are
regional coordinators in the seven districts who work with landowners in
the investigation of claims and attempt to determine the value where the
damage occurs. If the landowner is not satisfied with the outcome of the
negotiations, there is the option of going to arbitration which seldom
happens.

Jim Unsworth, Department of Fish and Game, Wildlife Bureau Chief,
commented that the secondary trust fund is a small portion of the overall
depredation budget. Of the $200,000 in the primary depredation fund
received, approximately $80,000 are paid annually in claims. The
secondary fund is used to pay for claims greater than $10,000. This is the
first year funds have been generated in excess of the $3,000,000. Annually
$40,000 is paid for claims from that fund. A third part of the funding for
the depredation program comes from the sale of tags. $.75 goes into a
dedicated fund to pay for winter feeding and the other $.75 goes into a fund
which pays for the operations of the depredation program. Additionally, $5
comes from nonresident tags for the depredation management fund which
funds studies on deer and elk populations for management purposes and
target harvests. Unsworth stated each year, approximately. $700,000 in
sportsmen’s dollars goes into the depredation program.



Unsworth stated the goal of the depredation program is prevention. There
are thousands of animal damage complaints a year, such as woodpeckers on
the eaves to moose or deer in alfalfa. The work with landowners for
prevention ultimately results in only about twenty or thirty claims.



Senator Schroeder stated, through his experiences on and with the Region 2
Fish and Game Council, there is a delicate balance between the sportsmen
and the agriculture communities which should be preserved. He noted
through extensive and wise negotiations the agreement was developed
based on trust and should be supported. It is not in the Legislature’s
interest to go back to the status in the late ’80’s before the agreement. He
noted it would take a lot more than $1 million to put the program back
together if destroyed.



Upon inquiry from Senator Stennett, Unsworth stated the maximum paid
out during the course of the program was $500,000 in 1988. The recent
high has been $125,000 from the primary account and from the secondary
account, the high was $80,500.

Lake Cascade Al Van Vooren, Department of Fish and Game, Regional Supervisor for
Southwest Idaho, stated the department is beginning a process to
investigate all the ramifications to balance with the fishery benefits in
regard to possibly draining Lake Cascade. He stated the process would not
begin this fall. The process is not just from the Department of Fish and
Game but is a cooperative project by several state and federal agencies
(Bureau of Reclamation and U.S. Fish and Wildlife Service). The project
was initiated by the Department of Fish and Game and is intended as a rural
economic development project. From the three meetings held to date, the
citizens support recovery of the Lake Cascade fishery on different levels
with a minimal risk to the irrigators. The working relationship established
with the irrigators has been positive and cooperative. Additionally, there is
a citizen group that would like to proceed full steam ahead without further
discussion. Another group would like to know more of the specifics about
the project. Yet another group was looking for the simple and easy answer
with no risk through proposed alternative methods to restore the fishery.
Dale Allen, Department of Fish and Game, Regional Fishery Manager,
McCall, stated Lake Cascade is the fourth largest water body in the state. It
is a shallow reservoir of twenty-five feet with a large excess nutrient
problem that has occurred in the past two decades. The lake is currently
under a TMDL, Clean Water Act, process. Yellow perch is the focus of the
fishery and first appeared in 1957. The lake began to be filled in 1951. He
noted the lake used to be the heaviest fished lake in the state in the ’80’s and
was the number one fishery in the state. Yellow perch was the mainstay of
the fishery, with 10-13 inch fish quite common. The perch harvest dropped
from 50,000,000 a year to zero in 1997. The financial loss to the local
economy is estimated at $5.9 million annually.



He provided a power point presentation to the Committee depicting
graphical statistics of fish populations over the years. Beginning in 1998,
the department has identified several problems such as no juvenile yellow
perch have survived since 1990. The fish inspected in 1998 were sick and
full of parasites. Where the disease came from is unknown. Dam
operations have not dramatically changed over the years. The loss of perch
is lake wide and not in certain areas. The food supply has not changed and
the environmental conditions have not changed. There had been no
outbreak of any other diseases since the early 1990. Diseases in fish
populations do not usually affect the whole population. Currently, during
the last four years, the perch are quite healthy. In 2000, research depicted
depredations by northern pike minnow. Young yellow perch disappear
before they reach two years old. He noted experiments of placing yellow
perch in cages was successful while the yellow perch in the lake did not
survive. Northern pike minnows are predators of small yellow perch.
Through the department’s research they have determined that disease and
northern pike minnows are the factors contributing to the decline of yellow
perch in Lake Cascade. The goal is to eradicate the northern pike minnow
to encourage survival of yellow perch, trout and salmon. The fish in Lake
Cascade are 98 percent non game fish: pike minnows and suckers. The
proposal would be to restock the lake with yellow perch, trout and coho
salmon.



The department’s current management is stocking $170,000 worth of fish
annually but that will not recover the yellow perch population. Last year
the department spent $230,000 catching and removing northern minnow
pike. This method for recovery is quite low and such a method would need
to be maintained for twenty to thirty years for unknown success. Another
possible method would be chemical treatment at $250,000 annually for
about ten years with questionable success. Other proposed methods are
equally expensive with no guarantee of any degree of success. The
estimated cost to drain and chemically treat the lake is $300,000 with
significant successful. The following year the expenditure for restocking
the lake would be significant but not more than what is spent restocking
annually now. After the first year of restocking, the cost would decline.
An Environmental Impact Statement (EIS) report would be necessary to
drain the lake. The cost for mitigation has not been determined. The costs
associated with draining the lake are one time cost versus the current annual
costs. There are approximately 700,000 acre feet of water in the lake with
one-half in a conservation pool and the balance is contracted irrigation
water for salmon flow augmentation. The lake would need to be drained by
November with a minimal pool remaining to be chemically treated. The
following spring the lake would restock with desirable fish species.



He noted this would be a federal action because of the state and the
department is asking Bureau of Reclamation to undertake the project.
Because it would be a federal action, the department will need to comply
with NEPA (National Environmental Policy Act) for human and
environmental effects. The department would prepare an EIS on the
proposal to provide a decision document to the Bureau of Reclamation for
their consideration.



Spring irrigation supply impacts the Emmett Valley and the lower Payette
agricultural areas. Water District 65 has stated their opposition to the
project at this time. They would like additional information on the
probabilities of water availability in the spring. He noted, 80 to 90 percent
of the time, all irrigation contracts and all stream flow waters could be
supplied in a given year. Fifty percent of the time, the lake will fill from
zero to full in a given year. There is a big productive watershed associated
with the lake.



Allen noted there would need to be some changes to the state statutes in
regard to water management. He noted 1763(b) deals with salmon flow
augmentation, and guides what can be done with the conservation pool.
The statute sunsets in December 31, 2004.



As the lake is drained there will be movement of sediment and nutrients
into the river that would not occur otherwise. These can be controlled by
how quickly the lake is drained and how much water is retained. The
draining will create more nutrient cycling within the reservoir and the
significance of the impact is to be determined. Water quality experts
believe the proposed project is good for the lake and the fishery.



The draining would not affect recreation because there would not be any
visible change until after Labor Day when tourism normally declines.
River recreation will be impacted and there are negotiations with that
industry to meet their needs. Deadwood Reservoir will be affected as Lake
Cascade and Deadwood Reservoir are managed together. Another area of
concern is the bald eagle, which is a federally threatened species. Lake
Cascade is a major nesting area for bald eagles in this area. The department
will work with the U.S. Fish and Wildlife Service on this issue. One area
of concern would be the lack of food when the eagles return for nesting.
U.S. Fish and Wildlife Service does not anticipate this would be a
significant problem.



The restocking would be with yellow perch with eggs for the first
spawning. Within three years, there should be eight to 10 inch perch for
fishing with the fourth year a very good year for perch fishing. Warm
water fish can be added after the perch are established. He anticipates
trophy trout fishing within the second year of the project.



Some mitigation aspects involve the construction of a marina at Cascade
along with the state park. Different water quality projects can be
implemented along with fish habitats.



The time frame is May 2003 for the NEPA process with the EIS in May
2004 and draining the lake in the fall of 2004. He noted the public
comments have been highly supportive of the project and federal and state
agencies are cooperative.



Upon inquiry from Senator Burtenshaw, Allen noted 310,000 acre feet of
water is contracted for irrigation with 300,000 acre feet in a conservation
pool owned by the federal government along with an agreement for 88,000
acre feet of water for salmon flow augmentation.



The fish species causing the problem are native species of the Columbia
Basin and will never be totally eliminated but the population can be
controlled to the benefit of other species. The lake above is Little Payette
Lake, an irrigation reservoir, which contains the northern minnow pike, as
does Payette Lake. Allen stated the proposal has been submitted to the
Idaho Fish and Game Commission and the department has been directed to
proceed in developing the program.

TMDL Chairman Noh reminded the Committee of the decision by the Idaho
Supreme Court last week regarding the TMDL litigation. He noted David
Mabe, Department of Environmental Quality, and Michael Bogart, Legal
Counsel, Office of the Governor, will bring the committee up to date on the
implications of the court decision.
David Mabe, Administrator of Water Programs, Department of
Environmental Quality, provided a copy of the Idaho Supreme Court
decision to the Committee. He noted Darrell Early, Deputy Attorney
General, Department of Environmental Quality, is also present. He showed
to the Committee the TMDL documents for two projects, indicating the
substantive volume of the documents. Mabe stated the decision by the
Supreme Court sets out that TMDLs must be rules and that the documents
should be adopted as rules. He noted the decision by the Supreme Court
was based on administrative procedures and the definition of a rule is too
broad to be workable. The decision states that the TMDL meets the
definition of a rule under the Idaho Administrative Procedures Act and the
mining companies were correct in seeking district court review. The
district court was correct in determining that the TMDL was void because it
was not promulgated according to the state requirements for rule making.
He noted the case was specific to the Coeur d’Alene River above Lake
Coeur d’Alene. The TMDL, adopted by the state and EPA, was in regards
to lead, zinc and cadmium. He noted the Supreme Court decision will not
affect the EPA approval of the state program.



Mabe explained the department’s procedure in adopting TMDLs. He noted
between eight to twelve TMDLs are adopted each year in accordance with
the schedule set out in an earlier case before Federal District Judge Dwyer.
That litigation resulted in a court schedule for Idaho for the development of
TMDLs. It is unknown how the Idaho Supreme Court decision will affect
the about 400 TMDLs that have already been approved. Mabe additionally
provided to the Committee a copy of the approved TMDL list as of March
24, 2003. A copy is attached. This year, there are ten TMDLs being
developed. Upon inquiry, Mabe stated there are about three hundred more
TMDLs to be done according to the schedule.



Mabe stated there are four ways to resolve the issue. Least acceptable
would be to allow EPA to adopt the TMDLs. The state could adopt the
TMDLs by rule, which would be a second option. The concern is the
volume of the TMDLs and the costs associated with the administrative rules
process. Another alternative would be to amended the statutes to allow for
adoption of the TMDLs by reference in the rules. The other solution is to
change the statutes to clarify that Legislature does not intend TMDLs to be
adopted as rules. There must be a clear process for interested parties to
appeal a TMDL. The costs associated with the rule making process for
adopting TMDLs fully into the rules would be significant. The costs
average $70 per page to the Department of Administration, which
supervises the rule making process. The department would rather invest the
money into research and data gathering work with the watershed advisory
groups.

Potlatch Mabe then informed the Committee on the status of the Potlatch water
quality permit application. Potlatch has been in the process of renewing
permit for four years. The process involves Potlatch application submitted
to EPA for the issuance of a permit. EPA reviews the information and
makes a decision about the permit. Because it is a federal permit, it is
subject to ESA consultation. Potlatch has submitted a biological evaluation
and EPA has determined that the permit is not likely to affect the species.
The Fish and Wildlife Services have been working on a consultation,
considering the evaluation and has augmented the information with their
own. Fish and Wildlife Serves have determined the permit will be a
jeopardy permit. If issued, it will affect four species of fish on the river.
EPA, Potlatch and the state have been in negotiations because of the 401
certification. The draft became a public document even though the
biological opinion is not final. The state is attempting to work with the
federal agencies to resolve some of the questions in the biological opinion
so the permit can be issued. EPA has agreed to have another hearing on the
permit and the state will draft a new certification. Under the ESA
consultation process, Potlatch would be taking an endangered species if a
permit was issued at this time.



Mabe stated DEQ is uncertain that the draft opinion is based on all the
correct facts. It is DEQ’s responsibility to work with those entities to
assure there is a factual basis for any determination.



Chairman Noh stated if the state had assumed primacy of the point source
program there would be only one consultation for all point source permit in
the state which would be issued by DEQ. There would not be consultation
between the individual permitees and the federal agencies. Mabe noted that
state primacy focuses the consultation on the delegation of the program to
the state. The federal agencies would only do a consultation on a one-time
basis based on what is contained in the state program. This would enable
the state to administer the program. He stated the federal agencies would
not consult on individual permits if the state had primacy. The federal
agencies would still work with the state to assure that the standards are
protective of endangered species and there is adequate management and
implementing the permit program.

Time having expired; the meeting was adjourned at 4:10 p.m.






DATE: May 1, 2003
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS
PRESENT:
Chairman Noh, Senators Cameron, Schroeder, Burtenshaw, Williams,
Brandt, Little, Stennett, Kennedy
and Senator Kent Banner (for Senator
Pearce).
Members
Excused:
Senator Little excused.
The meeting was called to order by Chairman Noh at 1:35 p.m.
H 458 David Mabe, Administrator, Water Quality Program, Department of
Environmental Quality, informed the Committee of the background of H
458. Mabe reminded the Committee of the decision of the Idaho Supreme
Court recently issued. He noted H 458 does not change the court decision,
but sets forth that TMDLs are not rules, but proposed plans. Mabe
informed the Committee that TMDLs to be undertaken this year are:
Brownlee, Mid-Snake at Succor Creek, Snake at Idaho Falls, Willow
Creek, Raft River, Goose Creek, Big Lost River, Weiser River and Weiser
Flat, St. Joe and St. Maries Rivers and Bissel Creek.



If TMDLs are to be subject to the rule making process, the costs to the
Department of Environmental Quality could exceed $500,000. If the 56
existing TMDLs go through the rule making process, that cost would be
$784,000. He noted there are an additional 300 TMDLs to be completed
according to the schedule set forth by the federal district court.



In addition to the financial considerations of the rule making process, the
other problems would be confusion as to the role of the watershed
advisory groups. There would also be confusion as to enforcement.
Currently the TMDLs are enforced as plans by other agencies. The
legislation provides what is to take place after the TMDL is developed.
Any interested parties would then have an opportunity to appeal.

Senator Kennedy expressed concern whether there would be enforcement
of the TMDLs and why it was the word “enforce” was removed. Mabe
stated because TMDLs are plans based on DEQ standards, enforcement is
by appropriate agencies through the permit process.
Norm Semanko, Idaho Water Users Association, stated the organization’s
support of the legislation. He noted their participation in the development
of the TMDL process and the intent that they were to be plans not rules.
He expressed concern that the court decision would jeopardize the validity
of the TMDL process and affect the schedule required by the federal
district court. He noted water quality standards would not be changed and
the TMDLs would be integrated to meet those standards.
Dick Rush, Idaho Association of Commerce and Industry, stated the
organization’s support for the legislation, noting there have been extensive
meetings over the past year to bring the issue to negotiated proposed
legislation. The legislation has not been hastily thrown together, but
developed through negotiations.
Lauren McLean, Idaho Conservation League, stated their opposition to the
legislation because of their concern about the TMDL process and that the
legislation does not undermine current projects. She expressed concern
for the replacement of the word “enforce” in the legislation stating the
need for TMDL enforcement.
Kevin Beaton, Boise, attorney, representing Potlatch, stated the company’s
support of H 458 and noted the letter dated April 30, 2003, from Jane
Gorsuch, Vice President of Intermountain Forest Association, to the
Committee in support of the legislation. Beaton stated TMDLs were
intended to be plans to be enforced through DEQ rules which would allow
challenges to the proposed rules.
Lynn Tominaga, Idaho Farm Bureau, stated their support for H 458 and
noted agriculture’s proactive status.
Motion Motion by Senator Burtenshaw to sen H 458 to the floor with a do pass
recommendation; seconded by Senator Brandt. Motion carried.
Adjournment There being no further matters to come before the Committee, the meeting
was adjourned at 2:25 p.m.