Senate Resources & Environment Committee


2004 Minutes


January 14, 2004
January 19, 2004
January 21, 2004
January 23, 2004
January 26, 2004
January 28, 2004
January 30, 2004

February 2, 2004
February 4, 2004
February 6, 2004
February 9, 2004
February 11, 2004
February 13, 2004
February 16, 2004
February 18, 2004
February 20, 2004
February 23, 2004
February 25, 2004
February 27, 2004

March 1, 2004
March 3, 2004
March 5, 2004
March 8, 2004
March 10, 2004
March 12, 2004
March 16, 2004
March 19, 2004
March 20, 2004

DATE: January 14, 2004
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS PRESENT: Chairman Noh, Vice Chairman Pearce, Senators Cameron, Burtenshaw, Williams, Brandt, Bilbao, Stennett, and Kennedy
MEMBERS ABSENT: Senator Schroeder excused.
The meeting was called to order by Chairman Noh at 1:35 p.m.

Chairman Noh stated there were two issues before the Committee.

The news media was in attendance because of concern about closed committee meetings. The Committee's issue is the protection of water rights of the citizens of Idaho. He informed the Committee the meeting on Monday would be general discussion.

Chairman Noh noted Judge Burdick has scheduled a status conference with the mediators for Friday, January 16, which necessitates the Committee to review and discuss the matter now.
Betsy Russell, reporter, Spokesman Review, stated she objected to the closure of the meeting on 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 asked that her objection be noted in the minutes of this meeting.

Senator Stennett stated the Democratic caucus has reviewed the statute and the constitution. He stated he interprets the constitution requiring all business of the House and Senate be conducted in the open. The Senate rule which allows for meetings to be closed cannot preempt the statute or the constitution. The Democratic party respects the integrity of the committee and the chairman, but are unable to participate in an executive session. Written statement is attached to these minutes.
Chairman Noh expressed concern over the loss of the benefit of advice and arguments on the very complex matter, but it is necessary to respect the order of the court that the proceedings be conducted in a closed or private session. He urged Senators Stennett and Kennedy to obtain briefings so the constituent they represent will be have the benefit of their expressions even though the committee will not have the benefit.

Stennett noted there is a meeting scheduled Thursday, January 15, with the Attorney General to be briefed and brought up to date on the issue. Any concerns for their constituents will be noted at that time.

Clive Strong, Deputy Attorney General, reported there is not an agreement and negotiating processes is still underway.
Motion Motion by Senator Brandt that an Executive Session will be held pursuant to Senate Rule 20(E) and Idaho Code Section 67-2345(f) 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 Bilbao.

Roll call vote:

Ayes: Brandt, Burtenshaw, Cameron, Bilbao, Pearce, Williams, Noh

Nays: Kennedy and Stennett

Absent: Schroeder

Motion carried.

The committee secretary requested non-committee individuals to leave the room.

Executive Session The meeting entered into executive session at 1:40 p.m.
Motion 3:00 p.m. Motion by Senator Brandt to adjourn executive session; seconded by Senator Cameron. Motion carried.
Chairman Noh called the meeting to order and stated there was no committee action taken during the executive session.
Motion Motion by Senator Pearce to adjourn; seconded by Senator Williams.

Motion carried.

Meeting adjourned at 3:00 p.m.

(Scanned copy of letter)

(208) 726-8106

Idaho State Senate

January 14, 2004

Senator Laird Noh, Chairman
Senate Resources and Environment Committee
State Capitol
Boise, Idaho 83720

Re: Executive Session on January 14,2004

Dear Chairman Noh:

This is to follow up the conversation you, Senator Fred Kennedy and I had yesterday concerning the meeting of the Senate Resources and Environment Committee that has been scheduled for 1 :30 P.M. today, to be conducted in 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.

In accordance with the position taken by the Senate Democratic Caucus, Senator Kennedy and I will vote "No" on the motion that will be made to allow the Committee to go into executive session to consider and discuss the matters described above. If two- thirds of the committee members, however, do vote in favor of going into the executive session, neither Senator Kennedy nor I will attend or participate in the meeting. As we discussed, Idaho Code Section 67-2346 clearly provides that ~ meetings of any standing, special or select committee of the House and Senate mill! be open to the public at all times. Our senate caucus does not believe that the Senate has the constitutional authority to unilaterally adopt a senate rule that is in direct conflict with a state law adopted by both houses of the legislature and approved by the Governor, and may in fact be in conflict with Idaho's Constitution. As a result, the Senate Democratic Caucus believes that to conduct an executive meeting of the committee, relying on Senate Rule 20(E), will be in violation of the open meeting laws of the State of Idaho, and particularly Section 67- 2346, Idaho Code. This is the same position that Senator Kennedy and I took when the Senate Resources Committee voted to go into executive session for a committee meeting on Apri123, 2003.

Senator Kennedy and I believe there may be legitimate extraordinary circumstances under which it would be prudent for a committee of either house of the legislature to be able to meet in executive session, closed to the public and the press. The purpose of the meeting you have now scheduled for today may well be one of those legitimate circumstances. It is the judgment of the Senate Democratic Caucus, however, that if the legislature desires its standing, special or select committees to be able to hold executive meetings, closed to the public and press, to discuss sensitive legal issues to which the State is a party, and if the Idaho Constitution will allow it, as is discussed below, legislation should be enacted so amending I. C. Section 67-2346, clearly stating the circumstances and procedures under which executive sessions of the committees may be conducted. Our caucus is aware that the Attorney General has issued his opinion stating that since Article III, Sec. 9 of Idaho' s Constitution provides that each house of the legislature shall determine its own rules of proceeding, the current rules adopted by both houses providing the authority for committees to conduct meetings in executive session, being in direct conflict with I. C. Sec. 67-2346, must govern the actions of each house. Other attorneys, however, have opined otherwise, and have taken the position that since Article III, Sec. 12 of the Idaho Constitution provides that "the business of each house, and of the committee of the whole shall be transacted 1 openly and not in secret session," neither house of the legislature has the constitutional power to adopt rules of procedure that conflict with this specific prohibition against secret sessions. Our caucus believes that, unless determined otherwise by a court of competent jurisdiction, this clear, direct conflict between a rule adopted by either house of the legislature, a state law enacted by both houses of the legislature and approved by the Governor, and Article III, Sec. 12 of the Idaho Constitution, should be resolved and construed in a manner consistent with the policy set forth in our Constitution prohibiting secret sessions, set forth above, and adopted by the legislature when the Open Meeting Law was enacted. This policy was clearly stated at that time by the legislature:

". ..the legislature finds and declares that it is the policy of this state that the formation of public policy is public business and shall not be conducted in secret."

Please make this letter a part of the record and minutes of this committee meeting.


/s/ Clint Stennett

Clint Stennett
Senate Minority Leader

cc: Senator Robert L. Geddes
Senator Bart Davis

DATE: January 19, 2004
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS PRESENT: Chairman Noh, Vice Chairman Pearce, Senators Schroeder, Burtenshaw, Williams, Brandt, Bilbao, Stennett, Kennedy
MEMBERS EXCUSED: Senator Cameron excused.
Chairman Noh called the meeting to order at 1:35 p.m.

General discussion ensued in relation to subjects of interest to be discussed by the Committee during this Legislative session.

Issues to be considered will be: Department of Fish and Game's Access Yes program; gubernatorial appointments of Alex Irby and Cameron Wheeler to Fish and Game Commission; status and review of Tamarack Resort; Department of Lands policy regarding timber harvesting; wolf delisting report by Office of Species Conservation; Wyoming's wolf management plan; Cascade Reservoir; invasive species issues; ground water quality program; nitrate issues; pending water litigation; Snake river Basin Adjudication; administrative rules, which will be reviewed by Senator Pearce and Chairman Noh; access to state land locked parcels (Senator Burtenshaw stated legislation is being drafted to address the issue); Senator Schroeder expressed concern regarding the high disease rate in the Clearwater area due to a high concentration of deer and drought conditions; an update on elk farms; Senator Kennedy would like to obtain current information as to the Department of Fish and Game's winter feeding efforts for deer and elk; Senator Stennett expressed concern regarding the interaction of state lands with local planning and zoning authorities; Fish Creek dam and stream protection issues; Senator Stennett also expressed interest in current information regarding water bank lease program for the head waters of streams; and issues concerning the outdoor recreational vehicles.

Jeff Youtz, supervisor, budget and policy analysis, Legislative Services, and Ray Houston, analyst, provided to the Committee the natural resource budget handbook. Youtz advised the Committee the state budget is tight in regard to the general fund and state departments are becoming resourceful in developing revenue sources to meet budget needs. He noted the state general fund is no longer a viable source for department funding. Dedicated and federal funds are the primary sources of revenue.

Youtz reported the Department of Parks and Recreation manages 27 state parks, along with the administration of boating, recreational vehicles and trails programs. The department is 25% supported by the general fund with 65% funded by fee-supported dedicated funds and the balance from federal funds. The comparative summary of the department was explained noting the 20% increase in employee insurance costs. Youtz noted the Department of Administration is working with budget personnel to adjust the time frame for insurance bids to conform with Legislative needs. Some state employees received less net take home pay due to the increase in insurance costs no longer covered by the state. The Governor has recommended a 2% salary increase to be given on a merit basis. Upon inquiry, Youtz stated the criteria for merit raises is wide open. He urged legislative guidance for fairness concerns because of the differences between state agencies. Youtz noted the state employee salaries have not meet statutory requirements to be equal to the average labor market. He stated state employee salaries are approximately 14% behind the average labor market now. Upon inquiry, Youtz stated the Governor has statutory authority to recommend merit raises. He informed the Committee the general funds returned by the various departments represented mostly vacant positions that the department could have filled.

Youtz explained the Parks and Recreation Department budget by decision units as set forth in the handout, noting the nonstandard adjustments reflect cost allocation for attorney general, risk management, state controller and state treasurer fees. Spending authority for receipts from the Sawtooth National Recreational Area license plates and federal funds for various department projects is provided. In conjunction with employee compensation for department employees, the budget reflects a 1% salary increase for permanent and group positions. The maintenance program of the department sets forth requests for park facility and equipment upgrades to enhance services. There is a request for funds for seasonal personnel and operating expenses which would be from park user fees for camper cabins in several parks, as well as expanded services for RV users.

The department requests funds to contract support and maintenance of the existing network on a 24 and 7 basis. It was noted the demand for services has been significant throughout the state and difficult for existing staff.

Additionally, the department requests funds to study the development of marinas at Dworshak Reservoir and Heyburn State Park, along with a master plan for the Thousand Springs complex and plans for Castle Rock campground, phase two. The department has also requested facility modifications and improvements at Billingsley Creek and marina improvements at Cascade Lake. Dedicated funds will be used for camping cabins and yurts. Three projects to be funded if donations are received include: Bruneau Dunes Science Center, Harriman State Park Welcome Center and the Ole Mission Sacred Encounters.

Included in the handout on page 4-57 is an index of self supporting state parks setting forth the budget, receipts, the percent of self support, along with visitation data for 2003.

Page 4-58 of the handout sets forth the current fee schedule for the Department of Parks and Recreation and the proposed changes. Specifically, daily motor vehicle entry fee would be raised from $3 to $4. The annual park n'ski permit would increase from $19 to $25. Fees for the nordic ski program at Harriman State Park and Ponderosa State Park would be instituted at $2 per person per day and $25 per family per year. In connection with reservations, the fee for an additional person overnight fee would increase from $2 to $3. Youtz noted in addition to the basic fee change, the department will collect sales tax on fees.

Ray Houston, analyst, Budget and Policy Analysis, Legislative Services, provided information to the Committee on the budget for the Department of Water Resources. Personnel costs, operating expenditures, capital outlay and the trustee/benefit account budgets had a proposed overall increase of 31.9% for FY 2004 and 7.4% for FY 2005. The Governor's recommendation is approximately a 2.8% increase with the major difference reflected in general fund revenues for the department. The number of personnel within the department will remain at 175. One area in the budget is the residential energy efficiency program which manages contracted inspections of manufactured homes to ensure compliance with electric and natural gas energy efficiency standards. The program also provides training with manufacturers, installers and sales personnel for manufactured homes along with site built homes in conjunction with the Northwest Energy Efficiency Alliance. This joint program provides $41,000 in personnel costs to the department.

Houston noted the proposed reallocation of two positions between programs resulting in a reduction in federal funding for a position under the energy program. The budgeted personnel cost rollups are due to the estimated changes in the state employee benefit program. The health insurance rates are projected to increase by 17% and the retirement system will increase in excess of 6%. The budget for the Department of Water Resources includes a general inflationary increase of 1.9% for operating expenditures and trustee/benefit payments.

Replacement items requested by the department are for 7 vehicles, computer equipment, field equipment, office furniture and office equipment. Houston noted the Governor does not recommend general fund revenues for replacement items. Dedicated and federal fund spending authority is recommended for office furniture, equipment and testing equipment.

Adjustments to the statewide cost allocation for Attorney General, State Controller, Risk Management and State Treasurer fees are included in the budget. Houston noted the Governor's budget does not recommend funds to maintain the water measurement program which would result in 5% of the measurement sites discontinued. The department has budgeted 1% for salary increases for permanent and group positions, while the Governor's budget recommends 2% distributed on a merit basis.

Houston noted during the 2002 session, JFAC reduced the impact of budget cutbacks by shifting funds from the general fund to the water pollution control fund. JFAC was unable to shift funding back to the general fund last year. The department requests shifting 6 positions and $510,300 from the water pollution control fund to the general fund. The shift from the water pollution control fund to the general fund is not recommended by the Governor. The Governor does recommend reappropriation authority which would mitigate the loss of four positions. Therefore, the position are not eliminated, just the funding for the positions.

In relation to the Idaho Water Center, the department is scheduled to move in October 2004. The budget sets forth funds for the FY 2005 lease. The department anticipates one-time costs of $500,000 for movable walls, record vault equipment, security system, furnishings, office equipment, and moving expenses. The Governor has recommended $360,000 for one-time moving costs which funding would come from the Miscellaneous Revenue Fund and the Petroleum Price Violation Fund.

The Idaho Water Resource Board has four in stream flow water rights to be adjudicated. Forty percent of the licenses and filing fees for these were paid last year, with 30% scheduled to be paid this year and the balance in FY 2006. Houston noted the Governor recommends funding from the Water Pollution Control Fund.

The office space in the Idaho Falls office of the department is insufficient with the existing space being inadequate for the computer network system. The department has requested an increase in the annual lease payment, plus one-time expenditure for remodeling, furnishings and moving costs. The expansion would require trading places with the Department of Environmental Quality's Idaho Nuclear Engineering and Environmental Laboratory oversight program. This budget request is not recommended by the Governor.

The Department of Water Resources has acquired software for electronic documents and data via the internet. Many of the department's documents are official records to be kept indefinitely and are converted to digital format. The department has requested additional storage, but the Governor has not recommended this budget item.

Information on issues and strategic planning performance has been set forth on page 4-67 of the handbook along with the costs in the Snake River Basin Adjudication on page 4-68.

Upon inquiry from Senator Schroeder, it was noted there is not an item for the Palouse Aquifer study contained in the department's budget.

Houston then explained the budget for the Department of Environmental Quality reflects a 19% increase in spending authority recommended by the Governor. Replacement items requested by the department include computers, ultra-low emission vehicles, low emission trucks, alpha radiation instruments and air quality monitoring equipment. The Governor recommends a portion of the computer request, some of the air monitoring equipment and two alpha radiation survey instruments, but no funding for replacement vehicles. The department's budget also includes adjustments for the statewide cost allocation plan. The department, with the Governor's recommendation, will shift 6 positions to federal funds from a Department of Energy grant. The adjustments assumes the grant will be received in FY 2004 and future payments will be in grant form rather than on a per ton of pollutant basis.

The department has received funds for the Coeur d'Alene Basin remedial action and to improve state waste management and remediation. Four position unfilled last session are requested to be filled this budget year. Spending authority for two federal grants for oversight of construction of wastewater and drinking water facilities is provided in the budget. There will also be funds for administration and support through indirect federal funds.

The primacy issue for the National Pollutant Discharge Elimination System will remain with the U.S. Environmental Protection Agency as the Governor does not recommend taking over this program. It is estimated the program could cost in excess of $2,000,000 per year to administer.

In relation to the Drinking Water State Revolving Fund which is funded by the Environmental Protection Agency with 20% matching state funds, the department charges the fund for time spent. The interest rate on loans through the program range from zero to 4%. Congress has authorized $60.3 million for Idaho which will require $12.1 matching state funds. The fund is continuously appropriated and has a cash balance of $8.9 million with outstanding loans in the amount of $18.4 million.

The Clean Water State Revolving Fund finances publicly owned wastewater treatment facilities and pollution control projects. Environmental Protection Agency grants support the fund which requires the state to match 20%. Interest rates on loans through the fund vary between 3.75% and 4.5% with repayment over a twenty year period. The department charges the fund for time spent, as there are no full time employees. This fund is continuously appropriated by Congress. The fund has a balance of $71.l million with outstanding loans of $66.1 million.

The department's strategic planning act performance measures are set forth in the handbook at page 4-12 included with the original minutes.

The proposed budget for the Department of Fish and Game was discussed and explained to the Committee by Houston. He noted there are 518 full time equivalent employees within the 8 major programs in the department. The positions are primarily funded through licenses, fees and federal funds. The department has request, and the Governor has recommended, federal funds from Northwest Power Planning Council through the U.S. Department of Energy and the Bonneville Power Administration for subbasin planning contract which will add 4 employees. The contract is for subbasin planning in the Upper Snake, Mid Snake and Salmon River areas. Subbasin planning sets forth habitat conditions and evaluates strategies to enhance, mitigate and protect fish and wildlife that may be adversely affected by the operations of the Columbia River hydro power system.

Another budget item for the department is the lease of additional office space in Salmon and Jerome, along with spending authority of federal funds for temporary customer relation specialists in Nampa, McCall and Boise. Federal funds would also be used for office supplies. Fees assessed from fishing and hunting violators are used to processed meat which is then donated to charitable organizations. Houston noted license fees provide for the deficit funding for the printing of hunting regulation brochures. The Governor's recommendation reduces the department's spending authority and allocates lease costs to be paid out of existing spending authority.

The statewide information system operated by the department interfaces with the employee information system and statewide accounting and reporting systems. The department noted some critical applications are outdated and need extensive maintenance. It was noted that the network is overloaded which causes delays and system inactivity.

The department has requested funding for equipment in addition to the replacement equipment request. Satellite phones, portable radios, blue lights, generator, global positioning system, truck winch and training rifles are items needed by the enforcement program. The wildlife program needs power augers, wildlife guzzler, projection unit, remote cameras and a welder. The winter feeding and habitat improvement program requests a digital camera along with a security camera for the MK Nature Center. These department requests are recommended by the Governor.

Repair and maintenance of state fish hatcheries and anadromous facilities is budgeted for these facilities funded by U.S. Fish and Wildlife and Idaho Power. This would include maintaining water supplies, repairing raceways and buildings.

The department has requested spending authority for federal funds from the U.S. Fish and Wildlife Service and Idaho Power to increase monitoring by adding temporary season employees. Additionally, funds would be needed to increase electrical and maintenance costs along with the repair and maintenance of the sockeye and Chinook programs at the Eagle Fish Hatchery.

Another budget item is for the improvement of fish habitat, fishing access and fish screening operations. Houston noted the department, because of the number of species listed under the Endangered Species Act, is required to monitor, evaluate, develop plans and projects to assist in recovery efforts. There are a number of federal fish management contracts to be fulfilled and additional seasonal personnel will be needed.

The department's "Access Yes" program to provide for public access for hunting, fishing, trapping and wildlife viewing currently has 30 landowners enrolled in the program. This has provided access to 107,000 acres of private land along with access to another 200,000 acres of public lands through private lands. The Governor has recommended the continued funding of this program.

Dedicated license fees and federal funds will be used to pay lease rate increases to the Department of Lands which provide fishing and wildlife habitat. Likewise, the funding for this is recommended by the Governor.

The implementation of the state's wolf management plan requires authorization for spending authority. Wolves are currently managed by the U.S. Fish and Wildlife Service and the Nez Perce Tribe with the department coordinating with those agencies. The budget provides for elk monitoring and for training and strategy development which would require 2 regional wildlife biologists and 6 part-time wildlife technicians. This budget item also includes the leasing of vehicles and equipment through the fleet management program. Source of funding is from federal funds allocated by Congress on an annual basis through the U.S. Fish and Wildlife Service and the Idaho Office of Species Conservation.

Current information is lacking on the distribution, abundance, trend, and status of populations and habitats of at-risk nongame and endangered species. The department requests temporary personnel and operating expenses to gather this data for bird species.

Because of the increase in demand for hunter and fisher education programs, the department is requesting temporary employees for the MK Nature Center. Federal grants will be used for gathering and analyzing information on wetlands, rare plants and rare animals.

Time having expired; Houston will continue the budget presentation to the Committee at the Wednesday, January 21, meeting. Meeting adjourned at 3:00 p.m.

DATE: January 21, 2004
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS PRESENT: Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder, Burtenshaw, Williams, Brandt, Bilbao, Stennett, 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 14, 2004; seconded by Senator Williams. At Senator Stennett's request, a copy of his letter regarding the executive meeting of the committee referred to in the minutes of the meeting of January 14, 2004, will be included in the internet copy. Motion carried

Steve Huffaker, Director, Department of Fish and Game, introduced the members of the Fish and Game Commission in attendance: John Burns, Marcus Gibbs, John Watt, Alex Irby, Cameron Wheeler, and incoming Chairman Nancy Hadley.
Gubernatorial Appointments Alex Irby of Orofino, Idaho, gubernatorial appointee to the Idaho Fish and Game Commission, informed the Committee of his expectations of the commission's future goals. Upon inquiry from Senator Cameron, Irby stated some of the challenges facing the department include the biological problems. In the Clearwater Region, there was a problem with the decline of the elk herd on the Clearwater and Selway areas. The department reduced the number of bears and mountain lions which showed an initial improvement. The reintroduction of the wolves by the federal government into those areas displaced the improvement in the elk herds. When the wolf is delisted in the state, the commission will need to be prepared to readdress the problem. Another biological problem which occurred was with mule deer.

In connection with fisheries, the last 4 to 5 years have been excellent salmon and steelhead fishing. The reservoirs have been good. Financially the department 5 years ago was in dire need of sufficient funding to properly manage. He noted the fleet management program has addressed the department's vehicle needs. Within the next couple of years, he anticipates the challenge will be to meet the financial obligations required by the programs within the department. The future concerns would be biological and financial.

Senator Cameron inquired if the department has conducted any studies or reports indicating the quantitative effect on the big game herds by the wolves in regard to the economic impact to the state. Irby responded the report is in progress and will be available at a later time. He noted observations by those in the field recognize there is a problem, but the quantitative data is not available currently.

A continuing problem has been access, stated Senator Cameron, and inquired what the financial consideration could be. Irby recognizes the access problem and pointed out that neighboring states have incurred significant financial expenditures in obtaining access. There will never be enough access but the commission will be working on how financially they can build toward the future. He anticipates the financial figures would be in excess of $1 million.

Senator Williams explained a hunting license fee scenario concerning an out of state young hunter as compared to an in state young hunter which will be researched by the director and the commission.

Upon inquiry from Senator Schroeder, Irby stated there were a number of deer lost in the Clearwater Region last year. The area from Kamiah to Kooskia experienced significant numbers It has not been determined whether it was as a result of the Clearwater tag or because of a local deer overpopulation compounded with 4 years of drought.

Senator Burtenshaw inquired as to the amount the commission allocates for research and disease control. Irby noted in the example of the Clearwater Region, the department veterinarian began researching the problem. There is an ongoing program concerning disease control. The department is presently checking with hunters for additional information. The department is attempting to prevent any disease from coming into the state in cooperation with the Department of Agriculture and the universities.

Upon further inquiry, Irby stated the Salmon River sheep fatality information was attributed to pneumonia. Chairman Noh stated concern about wildlife and domestic animal diseases has increased in public awareness. The inter-relation of animal, wild and domestic, and human diseases is growing concern in the nation and world. He provided to the Committee a copy of a letter, dated November 12, 2003, to one of the scientist at the Caine Center. The original is on file with the minutes of the Committee. Ward's letter states his concern about the continuation of wildlife disease research in Idaho and the availability and research of the Wildlife Health Facilities at the Caine Center.

Irby stated determination has been made that domestic and wildlife animals could live together if managed properly. Any research should be coordinated with other opportunities. Chairman Noh noted the University and the department are reviewing the status of diagnostic laboratories and research efforts should be structured in relation to animal/human health field. He stated the research facility and the Caine Center are being encroached upon by the development of subdivisions. Inasmuch as federal funds may be available, this would be a good time for those involved to review the program's future.

Senator Burtenshaw expressed concern regarding the new livestock/elk feeding rules place an unrealistic responsibility on ranchers for reporting. He stated the department is responsibility for the wildlife, not the rancher. Ranchers should not be required to control the wild animals, especially during deep snow conditions. The rules need to be reviewed by the department to be fair and just. Irby urged cooperation and good communication between the department and ranchers. He stated through such efforts the department is urging the Corps of Engineers to develop winter habitat for elk in other areas around Dworshak Dam as mitigation for construction of the dam.

Senator Kennedy inquired as to Irby's philosophy on the winter feeding program. Irby stated the department's winter feeding program which will take care of the game when necessary. He noted some areas winter feeding should be on a natural basis. The department has required the U.S. Forest Service is to develop more in depth planning for the creation of winter habitat and feeding in fire and logging operations.

Some areas have too many elk and in order to keep the population, winter habitat and natural winter feeding need to be encouraged. He acknowledged sometimes the department waits too long to begin winter feeding operations. The department is aware of this and is working to correct the problem. Senator Kennedy stated encroachment by the public on winter feeding grounds can cause emergency situations, where if the herd is to be maintained a supplemental winter feeding program will be instituted. Kennedy noted the many problems in Boise and Elmore Counties in the past which is the result of limited areas for the elk to winter.

Upon inquiry from Senator Stennett, Irby stated the department's Access Yes program is intended to be widespread and not limited to specific game, fish and birds. Stennett requested clarification about the $2 paid in licensing for habitat improvement set aside. Irby responded the funds are not used for access but for habitat improvement programs.

Upon further inquiry from Senator Stennett concerning pheasant hunting, Irby stated the state does not have the quantity as in the past and the department is working with landowners regarding access to move the pheasant program ahead. He noted the main concern is pheasant habitat.

In relation to chronic wasting disease and cervidae farms, Irby stated there is a joint effort with the Department of Agriculture in the planning and testing. Hunters are encouraged to report any of their findings. Additionally, the department limits imports.

Speaker of the House Bruce Newcomb informed the Committee, Cameron Wheeler was a good committee chairman while he served in the Idaho House of Representatives and good at solving problems and finding solutions. He urged the Committee's approval of Wheeler's gubernatorial appointment to the Fish and Game Commission.

Cameron Wheeler of Ririe, Idaho, appointed by the Governor to the Idaho Fish and Game Commission, stated he has a long time interest in natural resources and is curious about the Endangered Species Act (ESA). He noted the impact on the state because of ESA and wildlife issues. He hopes his grandchildren will have the same opportunities and enjoyment he has had. Chairman Noh commended Wheeler for his efforts in the development of the Office of Species Conservation. Wheeler stated his concern for the funds necessary in connection with ESA listings and the need for proactive actions. An example is the recovery plan for slick spot lemon pepper grass, which could be accepted by the Department of Interior. Through cooperation between the various departments and agencies it could solve the problem for the benefit of landowners, sportsmen, tax payers and everyone. Idaho has step forward on this issue and can use this experience in connection with other such listings.

Senator Bilbao stated the slick spot lemon pepper grass was first discovered by the Department of Transportation along Highway 16.

Senator Bilbao reported Senator Little had located 2 collared wolves taking down one of his calves. This is the second sighting of collared wolves in Gem County on their way to Oregon. Wheeler stated the state wolf management plan in conjunction with Montana and Wyoming will address the problem. Senator Bilbao noted an abundance of deer in Unit 32 and inquired of the commission will be increasing the deer harvest or capturing and moving the deer. Wheeler stated mule deer will not be transferred in the state at this time but the commission will consider harvest numbers for proper management while sustaining the population. He noted the decision is made on a region by region management basis.

Upon inquiry from Senator Stennett, Wheeler stated the department has a role in the biological aspect of river usage. The existing statutory laws guide the department and other agencies on river usage. Upon further inquiry, Wheeler stated the department was involved in the water bank program on the Lemhi River which has produced good results. He supports this positive example of cooperative efforts in Idaho to natural resources. Senator Stennett noted the conflict between recreational areas and the preferences of local county commissioners and planning and zoning as to the department's ownership for use of the public. Wheeler stated his philosophy on this issue is based on a willing seller/willing buyer concept. The Access Yes program is a good example along with incentive program for landowners meet public needs. Funding is a significant problem for the department in this regard. The department has resources which could be further developed, especially in relation to education and being a competitive business.

Senator Kennedy inquired as to Wheeler's philosophy on winter feeding. Wheeler stated the winter feeding advisory group along with the criteria developed by the department are guiding. He noted the department does a reasonable job, but they know they can't wait too long to begin the program. Wheeler is not a proponent of feeding if you don't have to but the decision has to be made early enough. The department should have the flexibility to determine on a regional or area basis what needs to be done.

Senator Burtenshaw stated he appreciates Wheeler's understanding of the issues and concerns in connection with the Department of Fish and Game.

Senator Schroeder expressed his appreciation of the two applicants under consideration for the Fish and Game Commission.

Snake River Basin Adjudication Honorable John Melanson, presiding judge, Snake River Basin Adjudication, informed the Committee of his educational and professional background, noting his application for the position was on a voluntary basis. He believes that the adjudication can be completed during his tenure on the court. The time and expense of the process to date has been extensive, but it is the largest adjudication ever attempted. He provided the Committee with statistics regarding issued and pending decrees noting total of 145,000 issues have been entered by the court. The remaining directors' reports should be completed by the end of 2005. There are significant issues remaining to be decided which include the Nez Perce reservation in stream flow claims on appeal and negotiation efforts. He noted A&B Irrigation District enlargement claims regarding waste and surface water which is also on appeal. Also pending is the Bureau of Reclamation ownership claims and the subordination language in connection with the Swan Falls agreement. There are some claims in Basin 29 in connection with Fort Hall Indian Reservation. He stated the court will begin working on deferred claims and claims filed over the next three years. Melanson informed the Committee progress has been good which has energized the Department of Water Resources and the court. The protection of Idaho's water is the most important. The negotiations and defense against the demands placed on Idaho's water unless the water rights have been determined. More importantly, the rights cannot be administered without that determination by the court. The recent formation of water districts has allowed the director of the Department of Water Resources to begin administering claims between ground and surface rights in Basin 29 and other areas.

Melanson stated Idaho's adjudication process has become a model for other states in addressing their claims. He noted financing of the adjudication process is important because if funding is not available for investigations the adjudication stops. The director's report allows the adjudication through the court. He also indicated changes in personnel affects the progress of the adjudication process because of retraining of key staff. Melanson noted the court has an excellent working relationship with the Department of Water Resources and the director. The director's reports are admitting promptly and it enables the court to proceed. He urged keeping personnel within the department to maintain the good relationship with the court. He reminded the Committee nothing is complete until the whole thing is complete. Anyone can come in at any time and challenge prior decisions of the court until this is completed.

The potential for changes in federal water law could affect the adjudication process. He noted the public interest is high because of the drought conditions and asserting their water rights resulting in additional filed claims. Melanson emphasized to the Committee that for the SRBA to proceed to conclusion the Department of Water Resources must be properly funded so that the investigations can be compiled and submitted to the report. The reports are scheduled to be completed in 2005.

Upon inquiry, Judge Melanson explained the logistics of handling of the negotiations on the Nez Perce Tribe claims by Judge Burdick. Burdick moved the process along by setting deadlines. The last status hearing Judge Burdick made it clear that it was appropriate for him to step aside now. Melanson stated Burdick should be able to sit on the Supreme Court should the action be appealed. Melanson's position is that he does not want to know from any of the parties the specifics of their negotiations, but wants to keep the process moving along so when the case comes back to the SRBA, Melanson will be able to handle the case.

Ray Houston, analyst, Legislative Services Office, answered questions from the Committee in relation to the $2 set aside fund from license fees. Upon inquiry from Senator Kennedy as to the current status of the winter feeding account, Houston stated the account is within the set aside fund. Houston will provide to the Committee a break down of the set aside fund depicting the various accounts within that fund.
Time having expired; Houston will return to the Committee on Friday, January 23, for the presentation of the budget of the Department of Lands.

DATE: January 23, 2004
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS PRESENT: Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder, Burtenshaw, Williams, Brandt, Bilbao, Stennett, Kennedy
The meeting was called to order by Chairman Noh at 1:35 p.m.
Vote gubernatorial appointment Motion by Senator Brandt to recommend confirmation of the gubernatorial appointment of Alex Irby to the Idaho Fish and Game Commission; seconded by Senator Stennett. Motion carried.

Motion by Senator Stennett to recommend confirmation of the gubernatorial appointment of Cameron Wheeler to the Idaho Fish and Game Commission; seconded by Senator Burtenshaw. Motion carried.

Gubernatorial appointment Ernest Lombard, Chairman, Idaho Park and Recreation Board, stated his support for the reappointment of Jean McDevitt to the Board, noting she is the mothering influence that keeps the Board on track and in line.

Jean S. McDevitt of Pocatello gubernatorial appointment to the Idaho Park and Recreation Board, informed the Committee of her personal, educational and professional background, stating she strongly supports the philosophy set forth in the department's mission statement. She noted a family interest and belief in community service and urges all citizens throughout the state to do community service. The budget concerns of the department have required reorganization and resourcefulness to assure good usage of user fees. She noted the department is moving out of its infancy stage and is developing and progressing towards the future.

Senator Stennett inquired as to the status of the Billingsley Creek Park project. McDevitt noted through cooperation of federal, state, county and state interests the development has obtained strong community support. The biggest concern at the present time is finding a funding source for the master plan for the area so they can proceed further. Stennett noted the local offers of services comes from a wide background and he urges utilization of those services to start the planning process.

Senator Cameron noted the department has certainly been resourceful in utilizing its budget. He expressed concern for the department's budget in FY 2006 which could be a target for the shifting of funds to other departments. McDevitt noted her confidence and trust in the staff and employees of the department in keeping the parks operating despite budget constraints. Upon inquiry from Senator Cameron, McDevitt noted the assistance of the Idaho Parks Foundation, as well as donations from some estates. She stated the volunteer efforts the past year resulting in a savings to the department equal to 28 full time employees. Upon further inquiry, she stated the board will be adding approximately 200 yurts and cabins as funds are available.

Senator Stennett asked about the status of the 427 mile ATV trail program and area ranchers concerns. McDevitt stated the Lost River Trail is a partnership among many city, county, state and federal entities. She noted control concerns could be addressed through the availability of facilities for trail users with the goal of "keeping on existing roads." The board will move forward with hearings to obtain user comments, as well as provide education about equipment, safety and enforcement matters. Upon inquiry, she stated the funding for enforcement will be determined after negotiations with the entities involved in the project.

Senator Schroeder thanked McDevitt for her good service to the state over the past six years. Chairman Noh noted the McDevitt family is an excellent example of Idaho political and public service.

Ray Houston, analyst, Legislative Services, provided a handout to the Committee explaining the Department of Fish and Game's set aside fund and the respective accounts in the fund.

Houston then reviewed the budget of the Department of Lands. Pursuant to the natural resources budget handbook provided to the Committee, Houston explained the department has 5 budgeted programs: support services, forest resources, land, range and mineral resource management, forest and range fire protection and scaling practices.

Budget items requested by the department include requirements of the Idaho Abandoned Mine Reclamation Act which is funded from a portion of mine license tax. The Governor recommends this budget item.

Fire suppression for the 2003 fire season was approximately $11 million from the general fund and an additional $1 million from receipts from cooperating agencies. The department participates in cooperative fire fighting agreements with federal, local and other state agencies and is then responsible for costs for fire suppression on lands protected by the state, regardless of ownership.

Due to an internal reorganization which shifted personnel without realigning funding, endowment earnings operating expenditures is budgeted for personnel costs. The shortfall for the Forest Resources Management Program is now supported by personnel funding from the Fire Protection Program.

The department has requested computer equipment, 16 pickups, 2 truck chassis, field equipment, repeater stations, mobile radios and portable radios (specifically for the Southern Idaho Timber Protective Association of McCall). Houston noted the Governor's budget recommends the department use current year funding for information technology replacement.

The annual timber harvest is requested to be increased by 20 million board feet beginning in FY 2006 and another 10 million in FY 2007 for the next ten years. The increased harvest would improve forest health on endowment lands and result in better value for the milling of larger trees. The increase in timber harvest will necessitate 10 full time positions, temporary help, contractual services and vehicles, along with a global positioning system, radios, relaskop scales, all-terrain vehicles, office furniture and computers which would be funded from the Endowment Earnings Reserve fund. The Governor supports this budget item.

Upon inquiry, Houston stated the Department of Lands cuts about 200 million board feet which has decreased to 160 million board feet. He noted it is now back up to 180 million board feet. The department has budget items to increase the timber harvest. Houston noted much of the budget is driven by the stumpage prices so the funds to the endowment are dependent on stumpage prices.

The department along with private landowners are faced with possible litigation regarding endangered species. The coordination and review of endangered species issues and development of agreements will need to be funded. However, the Governor has not recommended this budget item request by the department. The department has requested the dedication portion of the request be approved.

Senator Brandt inquired whether actions regarding the Endangered Species Act were under the Office of Species Conservation. Wiggins explained the incidental take coverage involves a land owner agreement negotiated with the federal agencies. The land owner is the endowments administered by the department. The Office of Species Conservation is assisting the department. He noted the program will probably take several years to accomplish. Brandt expressed concern because it was his understanding the Office of Species Conservation was to take care of these types of issues. Wiggins stated there are a number of avenues under ESA for getting incidental take coverage. He noted the department does not currently have any specific plan so as to allow flexibility in negotiating with the federal agencies. Wiggins noted he views the process as an insurance program for the timber resource program. The timber resource is worth approximately $1 billion which generates in excess of $50 million per year. The department is attempting to buy an insurance policy which will allow the department to continue timber operations without judicial review. Upon inquiry, Wiggins noted the request for 10 additional permanent employees for additional timber harvest results in approximately an additional 3 million board feet per employee per year. Designing and implementing timber sale projects is complex and labor intensive but enhances the health of the forest stands and is estimated to generate about $6 million in additional revenue per year.

Upon inquiry, Wiggins stated the department's budget does not contain litigation costs. He noted the department is not involved in any litigation at the present time. The sixty day notice of pending litigation from the environmental groups has expired. Wiggins responded to the notices, but has not heard anything since his reply. There are costs associated with negotiating agreements for assurance in connection with incidental take coverage. Incidental take coverage means that the department agrees to certain practices on the ground and the services will not hold the department liable should a listed species be harmed. The department is in discussions with the U.S. Fish and Wildlife Service regarding incidental take coverage on state lands.

Senator Cameron informed the committee, due to a misunderstanding the Governor does not agree with the department's withdrawal of the general fund request but agrees with the dedication fund request.

Larry Schlicht, Division of Financial Management, stated the division has not had an opportunity to review this with the Governor but will make that recommendation to him.

Through the Priest Lake office, the department oversees the Priest Lake sewer hookup project. Due to the upgrading of the Coolin Sewer District, the department has been assessed a fee of $6,000 for each residence unit. There are 3 units, plus a trailer pad, at the Coolin housing complex and 6 at Cavanaugh Bay administrative site. The Governor recommends this budget item which would be from general and dedicated funds.

Computer operations and proposed improvements require added computer disk space. Inasmuch as these operations support accounting, geographic information, land records, real estate, land range and mineral leases, the web site, email, timber sales, compliance and fire systems, general revenue funding is requested. The Governor does not support this budget request.

The Reclamation Fund is revenue from small mine operators since May, 2003. Mine reclamation, administration and mineral education are areas supported by the fund. The Governor has recommended this budget item from dedication funds.

The reorganization of the department has resulted in inadequate space for staff and meeting rooms have been converted to office space. Funding is requested to remodel a shop into office space at Cataldo, remodel the shop into office space and build a new shop at Mica, construction of an addition to the McCall office along with a storage shed. Part of the funding for these projects would come from the Endowment Earnings Reserve Fund and from the Permanent Building Fund Advisory Council. The Governor has recommended $144,000 from dedicated funds for this budget unit.

The new organizational chart for the Department of Lands is set forth on page 4-41 of the handbook included in the original minutes of this Committee.

Chairman Noh noted the Land Board has reduced the percentage from the endowment fund to the endowed institutions this year. Chairman Noh inquired if the reductions are reflected in the Governor's budget. Houston stated the reductions are reflected. The Governor does not recommend replacing that with general fund revenues. In the case of public schools, the revision will show the $23 million reduction in the endowment fund with no replacement from the general fund.

Schlicht further explained the public school budget request did not ask the full anticipated reduction. The agency budget request for public schools was predicated on the assumption there would be a 7 percent payout. Because of the market situation and reduction in timber receipts, the figures will be lowered. The Land Board agreed with the Governor's recommendation that the payout for the public schools would be lowered 5 percent and 7 percent in subsequent years. The numbers are being revised and will be submitted to JFAC. Schlicht stated that based on the estimates made by the endowment fund investment board there will be enough money at the 5 percent payout rate to schools to generate under $23 million, which is a $14.8 million reduction.

Chairman Noh requested clarification of the statutory provision that the loss of corpus in the endowment fund must be replaced as of a certain date by the legislature. He further inquired if there would be legislation from the land board to modify the law. Houston stated he and Jason Hancock are reviewing legislation to extend the pay back period from 4 years to10 years. Senator Cameron reported the legislation was discussed by JFAC under the possibility of repayment over a period of time with a broader scope. This would be reflected first in the FY 2006 budget. He reminded the Committee the economic forecast is precarious with an estimated $70 million budget deficit. Legislation has been drafted to extend the time frame from 4 years to 10 years. The 10 years would be a rolling time frame so the full amount in arrears would not have to be paid at any one time if there was an arrearage during the 10 year period. A suggestion was made that the CPI (consumer price index) should be included in the payback schedule. At this time, CPI will not be included because of the potential of never being able to repay the amount. The legislation will be handled by the State Affairs Committee. Cameron stated another meeting is scheduled with the Endowment Fund Board and its director to finalize the proposed legislation. Upon inquiry, Cameron noted the constitution provides keeping the endowment fund whole without further definition. The beneficiaries recognize that the fund must be held harmless and paid back.

Senator Schroeder commented this is what happens when gambling debts are due.

RS13534 Steve Barton, Legislative liaison, Department of Fish and Game

explained RS13534 will revise provisions regarding quarterly meetings of Fish and Game Commission. Barton explained the legislation would allow the Commission to meet at any time within the quarter instead of on a specific month.

Motion by Senator Schroeder to print RS 13534; seconded by Senator Bilbao. Motion carried.

RS12535 Barton then informed the Committee concerning RS12535 which may specify requirements for signage for shooting preserves boundaries and artificially propagated upland game birds released on shooting preserves. He noted the legislation is presented in cooperation with the shooting preserve industry. The legislation would give the Commission authority to provide for marking boundaries and to mark birds by the rule making process rather than legislation. This would allow the industry and the Commission flexibility in the development of solutions and guidelines for the industry.

Senator Cameron expressed concern for shifting legislation to rules. Barton replied the industry preferred to have the flexibility of working with the Commission as the need for changes evolved. He noted the Commission does not have a reluctance to legislation just that it is easier and more flexible through the rule making process on the minor changes required by the industry and/or the Commission.

Motion by Senator Kennedy to print RS 13535; seconded by Senator Brandt. Motion carried.

RS13537 Barton stated RS1537 provides that publication and posting of season closure orders and depredation hunt orders are not required to be published. He explained depredation hunts are completed several weeks prior to when the order is actually published. The proposed legislation relates to seasons and closures. It is not the intent to eliminate Commission orders that the public would be interested in.

Upon inquiry from Senator Cameron, Barton noted depredation hunts occur after the department has worked with the landowner to remove the animals. The landowner wants and deserves to have the animals removed. The regulation brochure provides for application by hunters to their respective regional offices for notification of depredation hunts. If the hunt is ordered on Wednesday to occur on the following Saturday or Sunday, the regional office attempts to notify hunters who have indicated interest in participating in a depredation hunt. Sometimes the regional office contacts those who have controlled hunt permits in the same area to see if they would be interested. The intent is to remove the animals as soon as possible. However, the publication of the order appears later. He noted there is a very short time frame and a small number of animals in these types of depredation hunts.

Senator Cameron inquired whether the depredation hunts could be listed on the department's web site as soon as they were made available. He noted this would make those types of depredation hunts available to anybody who has a license.

Motion by Senator Cameron to return RS 13537 to sponsor; seconded by Senator Kennedy. Motion carried.

Time having expired; the meeting was adjourned at 3:10 p.m.

DATE: January 26, 2004
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS PRESENT: Chairman Noh, Vice Chairman Pearce, Senators Schroeder, Burtenshaw, Williams, Brandt, Bilbao, Stennett, Kennedy


Senator Cameron excused.
In the temporary absence of Chairman Noh, Vice Chairman Pearce called the meeting to order at 1:35 p.m. Vice Chairman Pearce welcomed representatives of the Twin Falls Chamber of Commerce Leadership Program who were in attendance.
Motion by Senator Stennett to recommend the appointment of Jean S. McDevitt of Pocatello, Idaho, to the Idaho Park and Recreation Board; seconded by Senator Bilbao. Motion carried.
Office of Species Conservation Director Jim Caswell of the Office of Species Conservation, introduced his staff in attendance: David Hensley and Steve Yundt. Other members of the staff are: Jeff Allen, Nate Fischer and Terry McRoberts.

Caswell stated this has been a positive year for OSC. He informed the Committee wolves are now listed as a threatening species. The Western Distinct Population Segment was created which includes half of Colorado and Utah, all of Montana, Wyoming, Idaho, Oregon, California, Washington and Nevada. There is pending litigation on the formation of WDPS. The Governor, OSC and the Department of Fish and Game have intervened in the case and been granted status to intervene on behalf of the federal government. He anticipates the litigation will be ongoing with David Hensley, OSC, and Michael Bogart, Office of the Governor, as the attorneys of record representing the state. The issue is, when the three states are delisted all the other states in WDPS will be delisted. Accordingly, if a wolf is found in Oregon it would be considered delisted the same as Idaho's wolves. This would be true no matter where the wolves range within WDPS.

Caswell stated the peer review of the three state wolf plans was completed by 11 national and Canadian wolf experts at the request of the U.S. Fish and Wildlife Service. The October 2003 report was then responded to by the states and the Department of Fish and Game. On January 13, 2004, the Secretary of Interior advised the Idaho state wolf plan was sufficient. Montana's plan was also approved. Wyoming's plan states they will manage for 15 packs, 8 in the parks and wilderness areas next to the parks and 7 packs statewide. Anything over and above the 15, Wyoming will determine on a quarterly basis whether they are a predator or a trophy big game animal. USFWS reacted to this provision negatively, as well as to Wyoming's definition of a pack. Delisting is dependent upon Wyoming's state wolf plan being approved by the Department of Interior.

Caswell noted the Wyoming situation makes Idaho's position important in regard to amending Rule 10(j), because it will allow Idaho's state plan more flexibility. The Department of Interior has committed to publish a proposed rule amending Rule 10(j) by the end of the legislative session. Until Wyoming's state wolf plan is approved, the proposed rule change will allow flexibility, fulfills the Secretary of Interior's commitment and assists in an orderly transition to state management. Additionally, this will provide an incentive for Wyoming to proceed.

Upon inquiry, Caswell anticipates the proposed amendment to Rule 10(j) should be in the federal register or a copy for publishing will be available. He noted because all 3 state plans have been through the review process he anticipates publication will be forthcoming. Upon further inquiry, he stated the Department of Fish and Game will be ready to operate by the October 1 anticipated date. The Office of Species Conservation continues work with the Nez Perce Tribe to define the Tribe's role after delisting.

At the end of last year $90,000 was paid in compensation damages to producers for lost stock for the previous two grazing seasons. The Board of County Commissioners governing the compensation account will meet next week to decide on payments to be made by the end of February. At this time, only two producers have submitted claims, additional claims will likely be filed before the deadline of February 1.

Upon inquiry, Caswell explained under the proposed amendment to Rule 10(j), the state would have the flexibility to amend the definition of "livestock" to include guard dogs and has the ability to take positive action. The people taking the action now would be the same people taking the action under the proposed amendment of the rule.

Senator Stennett stated it is his understanding that the state will ultimately manage wolves similar to management of cougars and bears. Caswell noted that is what the plan provides. Huffaker affirmed, after the harvestable surplus is determined tags would be issued to remove the harvestable surplus where wolves need to be reduced.

Chairman Noh presided over the meeting at this time.

Caswell noted the Department of Fish and Game has been and continues to monitor and collect data on elk and wolf interaction. He stated a study has also been funded through the department. $400,000 has been accumulated over the past three fiscal years to gather the data necessary.

Huffaker stated the Nez Perce Tribe has been gathering data which has been incorporated into the department's data base along with additional information on pack activity and depredation rates in conjunction with an enhanced monitoring program. Aerial survey information is added. The department will have as much information as can be obtained. Upon further inquiry, Huffaker noted the department began compiling information on wolves as soon as the department was legally allowed. The department does not have all the information it could have had if the department had been involved over the past six or seven years. The Nez Perce Tribe has been gathering information which will be utilized. Department employees have now been trained to obtain further information and which is shared among all interests.

Upon inquiry, Huffaker anticipates by next year there will be wolves in the Boise Foothills and all the fringe areas. The back country territory is filling up and because wolves are territorial and multiplying rapidly, young male wolves leave existing packs and set up their own territories and form a new pack. The places where they will inhabit first are big game winter ranges and around the Cental Idaho area. He noted it was only a matter of time before wolves are in Southeast Idaho. There are undocumented reports in Owyhee County and Nevada. Wolves will range 150 miles and will go anywhere they choose to go. The whole state of Idaho is wolf habitat.

Upon inquiry from Senator Schroeder, Huffaker stated all the neighboring states are contemplating what to do with wolves as they move into their respective areas upon delisting. States that are included in the WDPS would be able to deal with them as they would any other game animal.

Caswell noted the authority to kill wolves exists now in connection with livestock but not in relation to big game or someone's dog. A rancher has the opportunity to kill a wolf if he sees a wolf actually killing livestock, but that does not allow a rancher to kill a wolf feeding on livestock carcass. In the future there will be a relaxed set of rules where the state will manage for a minimum of 15 packs. He stated it is to be determined what the definition of "packs" will be in the final delisting. Once delisting occurs the state can bring the number down to 15, if it chooses to do so. The decision will be up to the state under the state wolf management plan in an open public process with the Department of Fish and Game and under its rules. Caswell stated the pending draft wolf report includes the statistics for all three states with the final report available by the end of the month. It is estimated there are now approximately 361 wolves in Idaho, plus or minus 20 percent.

In relation to slickspot pepper grass, Caswell provided to the Committee a handout, incorporated into the minutes, setting forth pertinent data. He noted listing of slickspot pepper grass was withdrawn by the U.S. Fish and Wildlife Service last week. The plant has a small range in Idaho of approximately 90 by 25 miles in Southwest Idaho. He noted this is the first time a species as designated to be placed on the list as endangered has been removed from the list. He further stated this is the first time, nationally, that a conservation agreement has been reviewed and evaluated by USFWS for implementation. In conjunction with the military, OSC, Department of Fish and Game, Department of Lands, Bureau of Land Management and a group of private landowners, a conservation agreement was completed and submitted to the USFWS for consideration. He noted several reasons for the success of the conservation agreement. He stated there may be litigation by Western Watersheds challenging the conservation agreement. He noted there was a significant contingent of private land owners involved in the development of the conservation agreement. Technical people assisted policy people in the development of the agreement, with OSC drafting the document.

David Hensley, attorney, OSC, explained some of the types of management as a result of the conservation agreement. He noted the conservation measures are based on the potential threat to the species. Wildfire, wildfire management, grazing, and outdoor recreational vehicle usage were some of the considered threats addressed by the conservation measures. The agreement would reduce or mitigate the threats. He stated private landowners and grazers developed conservation measures that address the impacts and process of grazing. One item was to allow a buffer zone to provide water and supplements for livestock without jeopardizing slickspot pepper grass. Private landowners also determined they would not create new roads in areas where the species was located and would use and limit existing usage to prevent impact to the habitat. Upon inquiry, Caswell noted the area basically encompasses the Snake River Plain from Marsing to Glenns Ferry.

In relation to the Bull Trout, Caswell stated a draft critical habitat plan will be available by March as per court order. During the comment period, the Governor and the congressional delegation requested a five-year status review on bull trout. The ESA requires that every listed species has a five year status review. He noted that in 30 years USFWS has never done a five-year status review on bull trout. USFWS has three areas they are working on in regard to bull trout: status review, critical habitat and the recovery plan.

In regard to anadromous fish, the omnibus spending bill has passed Congress and is to be signed by the President. There should be $5 million additional available for salmon programs for the Idaho.

The Lemhi short term agreement provides for law enforcement discretion on the part of USFWS and National Marine Fisheries. The long term agreement is two-thirds completed. The short term agreement will expire in the spring. Caswell noted the negotiations are proceeding through the efforts of Clive Strong, Deputy Attorney General. He stated the same approach is being used in the Upper Salmon Basin. A short term agreement was signed in October 2003. Negotiations are underway for the long term agreement.

Upon inquiry from Senator Stennett as to the use of the $5 million, Caswell stated the funds can only be used where there are anadromous fish which would mean the Clearwater River, the Salmon River Basin or the Main Snake River. The bill had language added in regards to accountability which has resulted in some confusion. One of the provisions is that NOAA must enter into Section 6 agreements with the five states. Idaho does not have a Section 6 agreement. Additionally there is a provision for review of the project and review of the funds committed to the projects. Caswell noted uncertainty until NMFS receives the fund and discussions begin. He stated Steve Yundt heads up the program for OSC. The intent is to use as much of the funds on the ground as possible with minimal administrative costs. He noted there is an absolute need on public lands. He estimates there are 1200 diversions needing attention in the Upper Basin.

In relation to sage grouse, Caswell informed the Committee OSC is working with the Department of Fish and Game along with the state advisory committee on a plan with local working groups. Funds will be available through OSC for project work. He noted Huffaker is head of the Western Association of Fish and Wildlife Administrators which is in the process of a science assessment and development of a regional plan encompassing the state plans for sage grouse. There are 11 western states participating in this significant, coordinated effort with a number of unanswered questions. Upon inquiry, Caswell stated the Bureau Land Management has requested coordinated state/federal efforts for sage grouse throughout the 11 western states. The sage grouse listing decision is scheduled for March. The six petitions relate to the greater sage grouse, which is all sage grouse in all the western states.

Huffaker informed the Committee there is a 90 day review date for range wide listings. Six petitions have been grouped for consideration as they relate to a single species. Litigation is pending alleging a timely decision had not been made which resulted in a settlement for a 90 day review which expires on March 27. If the petitions are determined to have merit, there is another nine months or a year from the original petition (January 2005) to enter a decision whether the species should be listed. The western states sage grouse group will have a full science review and a candidate conservation assessment done by May 2004. Following that will be a written conservation agreement similar to the process used for the slickspot pepper grass. Huffaker will be meeting with federal officials next week on the national plan for sage grouse conservation for USFWS consideration by January 27, 2005. The plan will apply to all lands not just federal and state. Conservation is necessary on all lands to protect the species on federal land. The local working group plans will be contained within the state plan which will be contained in a western states conservation plan for sage grouse. The federal plans will compliment and complete the plan in relation to adequate regulatory mechanisms. Positive actions must be undertaken so they can be considered when the decision is made in January 2005.

Caswell stated the grizzly bear issue has resulted in a conservation agreement with an anticipated USFWS delisting in 2005.

Time having expired; the meeting was adjourned at 3:00 p.m.

DATE: January 28, 2004
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS PRESENT: Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder, Burtenshaw, Williams, Bilbao, Stennett, Kennedy
MEMBERS ABSENT: Senator Brandt absent.
The meeting was called to order by Chairman Noh at 1:35 p.m.

Chairman Noh informed the Committee of a National Public Broadcasting crew will be active throughout the legislative session for a program on state legislatures. Idaho was chosen to be the model. Their equipment and personnel will be in attendance and in the background of many proceedings.

Chairman Noh noted members of the water users community have devoted a enormous amount of thoughtful, intelligent time to addressing serious water conflict issue and will related to the Committee pertinent information for the Committee's consideration and evaluation. He noted the Legislature may be asked for assistance. The Governor's Office, Attorney General's office, the University of Idaho and the Department of Water Resources will also assist in developing solutions to try to avoid litigation. Chairman Noh noted the over arching conflicts over salmon, steelhead and the ESA. If it comes down to a question of the dams versus water, only Congress can move the dams but a court could adversely determine the water issue. Other conflicts and disagreements should not be allowed to spill over and damage our ability to deal with these broader issues which could affect the state adversely.

Chuck Coiner, Board of Directors, Twin Falls Canal Company, has been a leader in working out solutions to the conjunctive management issues.

Coiner then introduced Chuck Brendecke, hydrologist for the ground water users, Chuck Brockway, and Tim Deeg, Idaho Ground Water Association,.

Chuck Brockway presented a slide presentation to the Committee, a copy of the slides are attached to the minutes of this meeting. Brockway informed the Committee of his professional background stating he was on the staff at the University of Idaho Civil and Agriculture Engineering Department for 32 years and retired to Twin Falls and established Brockway Engineering. He has assisted the Twin Falls and North Side Canal companies, and other water users on water issues in Idaho.

The Eastern Snake Plain Aquifer studies began in 1977 and developed a ground water model. The aquifer encompasses all of the Snake River Plain from King Hill to Mud Lake and to Ashton. Significant parts of the aquifer are American Falls Reservoir and the Milner to King Hill area known as the Thousand Springs Reach. The aquifer is 10,000 square miles of lava flows and basalt. The water flows from the northeast to the northwest. Most of the water flows out the west end in the Thousand Springs Reach. Between Blackfoot and the lower end of American Falls Reservoir at Neeley, there are many springs. There are two main areas where water comes out of the aquifer. The water goes into the aquifer from irrigation application, water diverted out of the Snake River and its tributaries and the Lost River comes into the aquifer but does not reach the Snake River. The inflow to the aquifer is from deep percolation from irrigation water applied to the aquifer and from precipitation that occurs over the aquifer and snow melt. The tributaries, Lost River, Silver Creek, Big Wood River, Little Wood River, Medicine Lodge Creek and the Portneuf River flow into and contribute to the water going into the large aquifer.

About 7 to 8 million acre feet of water goes through the aquifer annually. Water exists from the aquifer at Thousand Springs and American Falls. In addition there is ground water pumping from the aquifer and in some places water is used for vegetation over the aquifer. He noted for a long time it was thought the aquifer was an unlimited source of water, but that is not the case.

He presented to the Committee an aerial map depicting the irrigated areas over the aquifer. There is a significant amount of irrigated land overlying the aquifer. On the west side of the aquifer there are two ground water districts: the North Snake and the Magic Valley Ground Water Districts, which comprise the bulk of the irrigated area on the western part of the aquifer. Other ground water districts are 130 and 120. Water district 130 was recently created to cover most of the western part. Water district 120

covers the Blackfoot area. Irrigated areas are watered from ground water and surface water diversions. Major canals from the Snake River are all along the reach, particularly in the Milner area.

Indicator springs which flow out of the aquifer are used to determine the health and actions within the aquifer. Spring Creek at Sheepskin Road comes out of the aquifer just above American Falls and is a measuring location utilized since 1980. The downward flow trend began in 1997 and has continued to date. This is an indicator of the reach gain or loss of other springs in the area. The current flow since April 2002 shows a wider difference between the historic flow and the current decreased flow. In January 2004 there is a difference of 100 cfs decrease over the normal of 356 cfs. Aquifer water levels and spring flows are declining in the American Falls area as result of better water management by the use of sprinklers. Ground water pumping began in 1950-60 and has taken water out of the aquifer and consumptively used it which has resulted in less water in the aquifer and less water coming out of the springs. Spring Creek is a good indicator of what happening in the northeast portion of the aquifer.

A US Bureau of Reclamation chart shows the accumulated reach gains. The river from Blackfoot to below American Falls Reservoir gains flow naturally from all the springs entering the river. The accumulated reach gains indicate in 2000 there was 2 million acre feet of water coming into the river through the springs in that reach. In the following years, 2001, 2002 and 2003, the reach gains have decreased to 1.5 million acre feet. This is indicative of the decline in the river and must be addressed due to water rights.

In the western part of the aquifer in the Gooding-Jerome area, there are some indicator springs. Box Canyon Spring, located near Wendell, comes out of the aquifer and is a large spring. The flow used to be 450 cfs and fluctuates according to use, recharge and pumping. He noted the declining trend is also reflected in the Box Canyon Springs at approximately 21.4 percent since 1950. Another indicator spring, the Blue Lake Spring, provides domestic water for the City of Twin Falls, has been measured since 1950. He noted the declining trend for the Blue Lake Spring is 30 percent since 1950. Blue Lake Spring and Box Canyon Spring are two major indicator springs in the Thousand Springs Reach for the western part of the aquifer.

The USGS estimate of flow for all of the springs depicts the Milner to King Hill area, also known as the Thousand Springs Reach. Those estimates began in 1902 and show the increase when irrigation began on the Snake River Plain. In the 1950s through better water management, well drilling, ground water irrigation, and the conversion from flood irrigation to sprinklers, resulted in a 21 percent declining trend in those stream flows in the Thousand Springs Reach. From Milner to Hagerman the annual flow of the river has declined at about the same rate. He noted the corroboration of information indicates the management needs of the aquifer.

A chart depicting water levels in wells in various points within the aquifer

in the Burley-Minidoka area indicate a consistent decline since the 1950s. He noted this area includes the A&B Irrigation District which is ground water irrigated. The well level and the spring flow declines are indicators of the declining trends in the aquifer. He noted the wells are operated and maintained by the US Geological Survey and are measured many times continuously with recorders showing the same trend. Another chart depicting the Bonneville/Jefferson area indicates the ground water levels are not declining at the same rate, but do show continuous declines. The aquifer is experiencing declines everywhere. Brockway stated management of the aquifer is imperative because of the declines and the resulting conflicts by users of the aquifer.

The springs in the American Fall Reach run 2,000 to 2,500 cfs and constitute the natural flow in the Snake River that is available at Milner for diversion to the North Side, Twin Fall, and Minidoka projects. As the water in the American Falls Reach declines, the water available to senior water right holders goes down. In the Thousand Springs Reach, as the springs decline, the water users with water right priorities that are senior to the pumpers have a right to a call for their water. He noted a conflict exists between the pumpers and the senior water right holders. Conjunctive management of the aquifer is necessary and must be done, but the ground water model, which was built in 1977 and has been updated, must be available and utilized to manage the water use within the aquifer. Brockway noted the ground water model is being recalibrated and additional work will be required by the Department of Water Resources to plan and manage the aquifer to assist in solving the problems associated with conjunctive management. He stated the ground water model is needed and needed quickly.

Upon inquiry, Brockway explained to the Committee the information obtained from the ground water model is generated by the computer program which simulates the flow of water in the aquifer. Questions may be asked of the computer program do determine the outcome of possible scenarios. One question that could possibly be asked of the computer program would be the effects of a recharge in Jerome County whenever water was available from the Snake River. The program would be able to determine the benefit to the spring flows in the Thousand Springs Reach. Another question would be if all or part of the existing flood irrigated areas were converted to sprinklers what would happen to the spring flows. Brockway noted one of the questions to be asked of the program will be to predict the impact in space and time of better water management on ground water irrigated areas and surface water irrigated areas. Another question would be how to structure mitigation plans to address the impacts on the springs. One of the difficulties in managing water use and water under priority in the aquifer is the time problem. If a senior spring user is not getting their water and makes a call under their priority, the Department of Water Resources is required to provide the water. Many ground water users in the aquifer will be junior to the spring flow priority. However, if a well in Mud Lake is turned off because the spring water user in Hagerman is not getting water, there will not be any noticeable results in Hagerman that season. The time lag through the aquifer of that change is fifty to sixty years before the flow effect of changes travel through the aquifer. If a ground water user a quarter mile away or even three miles away from the senior water right holder is not getting his water, turning the ground water user off and a result would be seen within a month. He noted the time management must be considered along with quantity management. The only tool available to answer and assist is the ground water model.

Upon inquiry, Brockway noted the recharge efforts in 1992 through 1994 have not shown effects because of the time factor the magnitude of the recharge. The outflow in the Thousand Springs Reach is 5,500 cfs. He noted the river in essence is remade in the Milner/King Hill Reach. Sometimes the flow at Milner is zero and the resulting water in the river at King Hill is spring flow. A Jerome recharge is spread out among the springs over six months or more. Additionally, the amount of water recharged was an insignificant amount of 25 to 30 cfs. Recharge is a good tool but recharge is not the panacea for the problem. There is not enough excess water in the system to recharge effectively in the needed areas to overcome the long term decline in spring flows. Recharge should not be abandoned because it does assist in the management and stabilization of the aquifer.

Upon inquiry, Brockway stated the decreases in spring flows are causing the declines in the river. The average flow in the summer time at Milner can be zero. Everything above is diverted from the Snake River onto irrigated areas. As the river flows from Milner, the springs come in and form the river. In measuring the discharge in the river, you are actually measuring the accumulated spring flow into the river from Milner on down the river.

Upon inquiry, Brockway explained the winter water in 1994, Milner to Gooding was going to the Lower Snake Recharge Project, north of Shoshone. That water did some good but the problem is the magnitude of the water going in versus the water coming out was very small. It was too small to measure. He stated originally the North Side Canal and other canal companies had water from the Snake River all year. The reason was for stock water and the only source was the canal. Many communities used the water from the canal for drinking purposes. Twin Falls used to get their water from the Twin Falls Canal. The winter water savings program was started when the Palisades project began. The canal companies agreed to closed diversions for a certain number of days which terminated the use of water and canal seepage in the winter time. In return, added storage became available in Palisades.

Timothy Deeg, President, Idaho Ground Water Appropriators, reminded the Committee the ground water management areas were created in 2001. He noted this was a time when ground water users could have been curtailed. Through negotiations, a stipulated agreement allowed junior water ground pumpers to continue to pump and to provide some source of mitigation water, as calculated by the Department of Water Resources, for senior water right holders. He noted water district No. 120 has extended their stipulated agreement as a result of further negotiations. The first agreement required curtailment of 15 percent if the 28,500 acre feet of water was not available. That requirement has been eliminated through trusting relationships developed between ground and surface water users. The 28,500 acre feet of water is still a requirement and has created a credit-debit system. He noted the significant communication and cooperation by those involved through the assistance of the Department of Water Resources.

Chuck Coiner informed the Committee the initial negotiations were heading towards litigation, but through the commitment of ground and surface water users they have been successful without attorneys. He noted those within District 120 meet together as water users. The district needs assistance in continuing the economic development of the resource. He stated the water districts have been meeting with the assistance of Clive Strong, Deputy Attorney General, and the director has attended most of the meetings. Progress is being made in the development of a mitigation plan or aquifer management plan but the process will take time. The process needs the recalibrated model to accomplish their goals. Through the process those involved have become more knowledgeable about the model and water systems are managed. Coiner stated it is important to have a funded Department of Water Resources with knowledgeable and capable personnel. He urge the Committee's support of the Department of Water Resources.

Upon inquiry from Senator Stennett, Coiner replied the aquaculture industry requires 52 degree water but the irrigators and diverters can use any water out of any storage. The storage and the water bank in the Upper Snake can be made available for mitigation. The water is mitigating the irrigators and diverters and proceeds to assist conversions in district 130. Coiner noted education is needed in the area of municipal usage. Funding should be shared by all water users to move the process along stated Coiner.

Upon inquiry Coiner noted funding is available for the completion of the model, but there are some calibration problems in the Hagerman Reach area. The tool is available and will be used to obtain the needed information. This will allow the development of mitigation and aquifer management plans. He noted the completion of the Snake River Basin Adjudication is also important in the process. Senator Cameron noted there has been a supplemental budget approved for the Department of Water Resources to address the 2004 needs for the program, and he will try to insure the 2005 budget is adequate.

Time having expired; the meeting was adjourned at 3:10 p.m.

DATE: January 30, 2004
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS PRESENT: Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder, Burtenshaw, Williams, Bilbao, Stennett, Kennedy
MEMBERS ABSENT: Senator Brandt absent.
The meeting was called to order by Chairman Noh at 1:35 p.m.

Chairman Noh expressed the appreciation of the Committee for Senator Bilbao participation and service to the Committee during Senator Little's absence.

Karl Dreher, gubernatorial appointee as Director of the Department of Water Resources, informed the Committee his decision to accept the reappointment was due to the critical issues pending before the department and the ability to address the critical issues within the next two years. He noted the Snake River Basin Adjudication should be near completion by the end of 2005. SRBA is the largest adjudication proceedings ever in the United States and end is in sight. He stated the support of the Governor, the Joint Finance and Appropriations Committee and this Committee contributed to his decision.

Even though the department's participation in the SRBA will decrease in 2006, there will not be a staff reduction because the department will then be required to administer the adjudicated water rights.

In connection with the issue of conjunctive management, he noted the misconceptions pertaining to water rights. A water right is the authority to use the water for maximum beneficial use, not entitlement to the water regardless of use. The water is owned by the state. A water right is a unique property right ­ a right to use the water, but not own the water. A water right is the right to beneficial use of the water. The other common misconception is that the prior appropriation doctrine is as simple as first in time is first in line. If this conception were correct, an engineer would not be needed to serve as Director of the Department of Water Resources. A clerk could look at the list of dates and make the determination as to which water right was first in line. There are other common law doctrines and case law provisions along with statutory provisions that must be applied also. He noted it becomes even more complicated in connection with the joint administration of ground water and surface water where the effects of a right holder diverting surface water are immediate, but the effects of a ground water diversion are delayed and spread over time and dispersed geographically. Additionally, the results can only be measured in certain places. Complicated computer models are necessary to determine the results. Dreher stated the Legislature has provided funding for the last several years for the department to reformulate and recalibrate the ground water model. This will allow the resolution of the pending conflicts before the director at this time, as well as litigation where the department and the director are defendants. Dreher noted the facts provided by the model are important to the ground water and surface water right holders to assist in clarification the complex interface. Dreher noted ESA issues will also continue to contribute to water issues.

He noted his pleasure that the Governor reappointed him to serve for another three years.

Senator Schroeder inquired as to the status of ground water and the aquifer in the Moscow-Pullman and Palouse aquifer. Dreher noted a petition has been filed by an environment group seeking to have the two aquifer systems designated as critical ground water areas and requesting a moratorium on future ground water development. The Moscow-Pullman aquifer system has declined for decades. A number of efforts have been made to limit the number of withdrawals from the shallower system. The deeper system is the Grand Ronde system. He noted conservation efforts have been imposed on the shallower system and the system has stabilized. The deeper system is a higher water quality system and continues to decline. Whether the deeper system should be designated as a critical ground water will be determined. He noted as the director of the department he has some alternatives to consider in addressing the issue. The City of Moscow and Latah County do not want any designation and their views will be considered, but the decision is out of their hands. The department will make the decision based on the facts and information available. Dreher noted the lack of investigative effort concerning the aquifer by the department. The department has in its immediate plans to begin work on the Rathdrum Prairie aquifer, but studies of the Moscow-Pullman aquifer have been postponed for now. Upon further inquiry from Senator Schroeder, Dreher noted in 2001 funds were appropriated by the Legislature to begin the hydro geological characterization of the Moscow-Pullman aquifer system but those funds were not encumbered when the first series of hold backs were imposed. These funds were turned back at that time. Dreher noted his decision was to return unencumbered funds rather than have a reduction of personnel.

Upon inquiry from Senator Stennett concerning the costs associated with measuring and monitoring water use and if there was a better way to measure through satellite technology. Dreher stated the department has been utilizing limited resources to develop technologies to monitor water use. Idaho was the first state two years ago to use satellite technology. This technology was utilized in Bear River Basin because the department had data to use as a comparison. The satellite technology is with spatial images and computers. The department was able to calculate the consumptive use of all the crops in that basin within ten percent of the comparison information. Dreher noted that NASA has discontinued the thermal band included in this satellite technology which is crucial to the use of the technology. He stated there are other things that can be done to acquire the needed information such as requiring an analog recorder on measuring devices which would electronically sample the measurements at predetermined increments and store the data. A water master or hydrographer could then collect the data, down load to a computer and provide it to the department. The department is attempting to reduce the costs and improve efficiencies. Upon further inquiry from Senator Stennett, Dreher stated for domestic use either metered usage or satellite imagery would be used. The largest portion of depletion from domestic use is because of landscape irrigation. The department can use satellite imagery to determine if domestic users are complying with the ½ acre limits authorized under a domestic water right. He noted there are a number of areas in the state with violations and enforcement actions have been instigated against the larger violations in Ada County.

Senator Cameron inquired if recharge has a role in negotiations between ground water and surface water users. Dreher stated recharge is a component but additional augmentation would be necessary. The use of water can be extended by using it differently. As an example, he stated there are a number of irrigated parcels in the Thousand Springs area with water rights that rely on stream diversions which are created by springs. He noted this is very high quality water. There is also a number of irrigation systems in the same area which generate runoff water. Perhaps the runoff water could be used for irrigation and then move the higher quality spring water to fish producers. He stated there are some options to apply this interchange now. Previously there were large diversions from surface water to ground water above the Thousand Springs area. The shares for that were sold and moved to the east. Ground water permits were then issued. He explained to the Committee how this scenario could be corrected without a forfeiture. Forfeiture occurs when a users quits making beneficial use authorized under the water right. As long as the beneficial use authorized by the water right is utilized, even though a specific water supply is not used, forfeiture is protected. This stops ground water depletions and leaves ground water in place for discharged in the springs. Additionally, when surface water is added there is some amount of water applied in excess of crop needs that will become recharge. Another option is through the Bureau of Reclamation. Minidoka Dam must be replaced because the structure is unserviceable. He noted the dam could be replaced to a taller height to add storage space using revenue bonds by the Water Board. The Water Board would then own the added water supply which could be leased to ground water districts. The revenue from the leases would be used to pay off the revenue bonds.

Dreher informed the Committee the department needs to have the institutional means and physical facilities to divert excess water, recognizing in stream purposes, for recharge. The 1 million acre feet annual deficit is not from drought but from irrigation efficiency improvements. The deficit has occurred because of diversion from flood irrigation to sprinkler irrigation. He estimates only about 300,000 acre feet will be available in the right location but it could produce significant affects in the Thousand Springs area.

Senator Cameron inquired as to the status of the moratorium on wells and permits. Dreher stated there is a moratorium in place for the Eastern Snake River Plain Aquifer since 1992. The moratorium does allow for mitigation of depletions and the department has issued a limited number of new permits to appropriate ground water. He does not anticipate the moratorium will be lifted until there is a showing that management of the water development can occur.

In reply to Senator Stennett's inquiry regarding the Steam Channel Protection Program, Dreher stated if the budget was adopted as recommended by the Governor the department will not have the funds to administer the program. A 404 permit from the Corps of Engineers will satisfy the minimum requirements of the Stream Channel Protection Act, but the department has a backlog of over 200 stream channel applications which cannot be properly handled within the department. Dreher stated he has suggested to JFAC the stream channel protection program should be moved to another agency with adequate dedicated funds.

Lynn Tominaga, Idaho Ground Water Appropriators, informed the Committee of his and the association's support of Dreher's reappointment as Director of the Department of Water Resources.

Senator Keough informed the Committee about the Lake Pend Oreille Basin Commission noting the formation of the commission is for the purpose of assuring water quality and water quantity in connection with Lake Pend Oreille and Priest Lake.

Ford Elsaesser of Sandpoint gubernatorial appointee to the Lake Pend Oreille Basin Commission informed the committee of his personal, professional and community participation as reflected on his Board Member Data Sheet provided to the Committee.

Senator Williams stated to the Committee his appreciation for the high quality experience and education provided by the gubernatorial appointees to the Commission.

Brent Baker of Sandpoint gubernatorial appointee to the Lake Pend Oreille Basin Commission provided the Committee with information concerning his personal, professional and community participation, which is reflected on his Board Member Data Sheet provided to the Committee.

Marc Brinkmeyer of Laclede gubernatorial appointee to the Lake Pend Oreille Basin Commission was unable to attend due to a business emergency. His appearance before the Committee will be rescheduled.

Linda Mitchell of Sagle gubernatorial appointee to Lake Pend Oreille Basin Commission informed the Committee of her professional and educational background as set forth on her Board Member Data Sheet provided to the Committee.

Representative Campbell briefly informed the Committee of the background of water quality and water quantity issues concerning Lake Pend Oreille and Priest Lake. He noted the Department of Fish and Game has provided good support to the Commission. In 1863 there were 4 species of fish in the two water bodies and today there are 29 species. He expressed concern about negotiations with the Corps of Engineers regarding the fluctuations in water levels for the river and lake.

Representative George Eskridge noted in addition to the community pressures on the lake other concerns include environmental issues and down stream power interests. After the Governor appointed the Lake Pend Oreille Basin Commission, he was concerned about the effectiveness of the committee in dealing with federal and down stream interests. He attended several meetings of the Commission with the Corps of Engineers, US Fish and Wildlife Service, NOAA and others and was impressed with the members of the Commission and the interaction with those with special interests. He noted the members of the Commission have shown the expertise and been effective on water issues and in dealing with special interests. He urges the Committee to recommend the gubernatorial appointments be confirmed by the Senate.

Senator Stennett noted the high quality of individuals recommended by the Governor for appointment to the Lake Pend Oreille Basin Commission. Eskridge commented the concerns regarding the lake level because of the economic impact on the region along with the fish and wildlife health. The lake level is the number one priority of the commission. He noted the down stream power interest also contributes to the economic and fish and wildlife impact in the region. Water quality is also a significant issue.

Steve Huffaker, Director, Department of Fish and Game, stated the fisheries issue with Lake Pend Oreille is the wind and wave action which cleans the gravel where the Kokanee spawn. He noted when the lake is drawn down the spawning area is heavily sedimented and hinders spawning. Huffaker noted the department is very supportive of the Commission and welcomes the assistance the Commission will be able to provide in negotiations with competing interests.

Upon inquiry, Eskridge noted some of the water from the lake is for irrigation in Washington, but Idaho's interest needs to be protected.

Chairman Noh reminded the Committee minimum lake levels are held by the Governor on several of the lakes because the possibility of a threat to Idaho water for irrigation in the Columbia Basin. The lake level laws in the United States, passed in the 1920s, are held in trust by the Governor for the state.

Huffaker then informed the Committee on the status of programs within the department. In relation to Cascade Reservoir, he stated a letter will signed by the Bureau of Reclamation and the Department of Fish and Game stating the reservoir will not be drawn down and poisoned. The department will not proceed with the environmental impact statement, but the fishery will still be renovated without draining the lake. Studies determined there was too much uncertainty the lake would refill to meet irrigation and other needs.

Upon inquiry from Senator Cameron, Huffaker noted the funding request for the EIS will need to be retained for renovating the fishery in Cascade Reservoir. Other ways to accomplish renovation would be to increase the harvest of pike minnows, squaw fish, electric weirs and netting along with restocking yellow perch, small mouth bass and other warm water predatory fish that would have an impact on the squaw fish.

In relation to all terrain vehicles, Huffaker stated the Commission passed a rule last year prohibits hunting from an ATV off the road in 22 of the big game units. He noted this type of hunting has become the number one complaint the department and commission receives from hunters and land owners. There has been some concern about the enforcement of the rule. The number of people hunting in those units is significant but only one citation was issued. He noted there were 26 written warnings based on complaints from other hunters. In addition there were 10 incident reports but personnel were unable to track down the alleged parties. Huffaker anticipates the Commission will expand the rule. Upon inquiry, he stated a lot of the pioneering of new trails, where there should not be trails, occurs during the hunting season by the ATVs. The Commission rule allows packing into the camp on an ATV and retrieving game if it is allowed by the land owner or land management entities. The department recommends hunters put the unloaded gun in the case when packing in or retrieving game.

In connection with the Access Yes Program, Huffaker informed the Committee the Commission voted to expand funding for the program by the selling of lottery big game tags. There will be two sales a year to coincide with the control application hunt time frame. Between $100,000 to $200,000 is anticipated in revenue for the program. Last year with $100,000 in the department budget, the department obtained 32 contracts with landowners encompassing 117,000 private acres which opened an additional 200,000 acres of public land behind the private land. Huffaker noted on the department's website is a map showing the contract areas along with the landowner restrictions and available hunting or fishing.

Upon inquiry from Senator Stennett, Huffaker explained landowners who wish to enroll their land submit bids stating the type of fishing or hunting, access, number of people per day, if it is necessary to call, write or make advance notice, or anything that the landowner wants. The bids are submitted to the department which are then reviewed by a regional sportsmen's board. The regional board decides on the bids and the contracts are written by the department. He noted the department makes every reasonable effort to service the contracts to assure that the landowner obtains what he expected and the sportsmen get what they expected.

Time having expired; the meeting was adjourned at 3:00 p.m.

DATE: February 2, 2004
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.
Gubernatorial appointment Motion by Senator Burtenshaw to recommend the gubernatorial appointment of Karl Dreher as Director of the Department of Water Resources; seconded by Senator Kennedy. Motion carried.
Gubernatorial appointments Motion by Senator Schroeder to recommend the gubernatorial appointments of Ford Elsaesser, Brent Baker and Linda Mitchell to the Lake Pend Oreille Basin Commission; seconded by Senator Stennett. Motion carried.
S 1229 Steve Barton, Department of Fish and Game, reminded the Committee the legislation would revise provisions relating to regular quarterly meetings of the Fish and Game Commission allowing for flexibility in scheduling.

Motion by Senator Brandt to send S 1229 to the floor with a do pass recommendation; seconded by Senator Burtenshaw.

Upon inquiry from Senator Schroeder, Barton explained the legislation would allow the commission the opportunity to avoid having more than one meeting during a quarter period of time by combining meetings.

Motion carried.

S 1230 Barton then explained S 1230 is legislation proposed by the private shooting preserve industry in order to allow the Commission and industry to adjust signage requirements for shooting preserves and marking requirements for upland game birds. He noted department representatives have a good working relationship with the industry and the proposed legislation is an example of good communication. Upon further inquiry from the Committee, Barton noted the proposed legislation does not change or affect the existing statutory trespass laws. He stated the signage requirements would provide notice to the public as well as define the area for a private shooting preserve.

Motion by Senator Burtenshaw to send S 1230 to the floor with a do pass recommendation; seconded by Senator Stennett. Motion carried.

Rick Collignon, Director, Department of Parks and Recreation, provided a handout to the Committee setting forth the proposed fee changes. A copy of the handout is included in the minutes of the meeting. He reminded the Committee of the department's budget for the past three years, noting the budget has decreased $3.6 million. The department has been working with park and recreation users to ascertain suggestions for revenue sources. There have been public hearings and meetings, as well as education and notices in connection with the proposed rule changes. He noted the changes in the proposed fees for nordic skiing went into effect as of January 2004. The proposed fee changes are within the maximum amounts allowed by statute. This allows the Board the flexibility to adjust fees by rule as needed throughout the seasons.

Collignon explained specific fee changes such as the motor vehicle entry fee, noting the department did not previously charge a fee for vehicle entry. Another significant change is the collection of sales tax on fees as the department previously included the sales tax and local option taxes in the fee. He noted the previous system was because of the inconvenience of coinage handling. However, 47 percent of the fees are now paid by credit card with 37 percent by check. Thus the coinage issue would no longer be significant.

Senator Stennett expressed concern about the public relations aspect of the multiple fee charges instead of a charging an overall single fee. Collignon noted the fee charges will be similar to fees charged in private campgrounds.

Senator Cameron commended the department for keeping the parks open and not having to close any parks or recreational facilities during the state's budget concerns. He stated the fees charged by the department are still reasonable for the product provided.

In connection with the upcoming Lewis-Clark Centennial, Collignon stated he believes estimated tourist numbers are low for the state. He noted the Lewiston and Orofino areas, while not having a significant number of state parks, will still experience increased usage, especially Hells Gate State Park and the Lewis-Clark Discovery Center located therein. The Lewis-Clark Discovery Center is scheduled to open in July 2004.

Collignon further informed the Committee that budget constraints have challenged the department resulting in reorganization and retooling of personnel. He additionally noted since September 11 there has been a significant increase in park and recreation usage despite the economy. He anticipates another record user year for the department.

Upon inquiry, Collignon explained the $22 vessel fee encompasses 85 percent designated county fees along with a 15 percent administrative and safety program fees.

In discussions relating to the Billingsley Creek/Vardis Fisher properties, Collignon noted there are some water access issues relating to the University of Idaho fish lab which have been addressed through piping of the necessary water and fencing of fishery site. Chairman Noh recommended reading the biography of Vardis Fisher entitled "Tiger on the Road" written by Tim Woodward. He noted Fisher is rated higher than Hemingway by many literary people. Fisher was born on the South Fork of the Snake River and that land has had protective easements filed this past year. Collignon stated the Fisher site and the Billingsley Creek site with the McFadden Farm are a good mix of resources and for addition to the state park system.

Collignon noted in the Idaho facts booklet is a listing of all of the state parks showing the expenditures and revenues from each of the units. He stated some of the parks because of historical, cultural or natural resource mission will never be significant revenue generators. The department has attempted to incorporate the management of those types of units into another unit which has other revenues. This allows the department to spread the overhead costs and personnel over more than one park unit. He noted Three Island, Hells Gate, Dworshak and Farragut state parks are recreation parks and intended to generate a higher revenue than the respective management costs which helps support other state parks with inadequate revenue sources. There is a good mix of resource mission parks and recreation mission parks within the state park system.

Upon inquiry, Collignon stated the Yankee Fork was the state's centennial effort to highlight Idaho's mining heritage. The park is a collection of sites on Forest Service land such as Bonanza, Yankee Fork Dredge and City of Custer. In development of the Custer Motor Way with a visitors' center the only revenue source is through merchandise sales. The operational costs will be shared with the Lost River Trail Way when it is completed. He noted the project has become an important project for Custer County. The visitor center is always busy and an RV dump station has been added there. The center is open 7 days a week during the season and 5 days a week otherwise.

Chairman Noh noted the Idaho-Lemhi Pass is a significant and perhaps the most interesting of all of the Lewis-Clark Trail sites. It is on an undeveloped, gravel road with views of several miles of the actual trail. Collignon stated there will be renewed discussion with the Bureau of Land Management for joint efforts on the recreation needs on BLM lands.

The Committee having addressed issues scheduled, the meeting was adjourned at 2:45 p.m.

DATE: February 4, 2004
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS PRESENT: Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder, Williams, Brandt, Little, Stennett, Kennedy
MEMBERS ABSENT: Senator Burtenshaw absent.



The meeting was called to order by Chairman Noh at 1:35 p.m.

Scott Nichols, Bureau Chief, Department of Lands, informed the Committee of the history of the Reclamation Fund. The proposed rule sets forth the fee schedule for a reclamation plan, placer permit, temporary permit or exploration project in connection with the Surface Mining Act. The fee scheduled as a result of negotiations and participation by the industry throughout the past 2 years. He noted the intent is that these fees will not be an additional burden and is not in addition to reclamation bonding, but a replacement. An operator who is required to pay a $250 minimum bond payment to the insurance fund will now pay approximately the same amount to the Department of Lands. The goal within the surface mining program is to ascertain the risks and have surface mining operators comply with the Surface Mining Act, including the bonding provisions. The proposed fee schedule provides a better economic alternative and reclamation alternative for the operators and the state. In the event of a forfeiture of a reclamation bond from the fund, the operator would be ineligible to continue operations on other sites until repayment to the fund. He stated the industry felt this would encourage operators to complete the reclamation.

Upon inquiry from Senator Little, Nichols noted the difference between restoration, reclamation and rehabilitation. A reclamation plan might not call for the restoration, but for reclamation which is between restoration and rehabilitation. Stream channels in the state are restored under the regulations to nearly original conditions.

Upon inquiry, Nichols stated the Surface Mining Act applies to state, private and federal lands. There are memorandums of understanding in regard to Forest Service and BLM lands. The state endowment lands and private lands are under the Surface Mining Act also. The Surface Mining Act does not indicate to an operator how to mine or how much acreage can be disturbed, but does set minimum standards for the reclamation. He noted there are exceptions within the Surface Mining Act which are applied evenly throughout the state regardless of ownership.

Upon inquiry, Nichols stated the pending fee rule applies only to commercial operations where the operator is removing material for immediate or ultimate sale. Under the present Surface Mining rules, if the anticipated reclamation bond exceeds $2,500 per acre, the department is required to hold a hearing, meet with the company and justify the reason why the bond exceeds the $2,500. Nichols stated the department acts as the underwriter for the reclamation costs for the site. It was never the department's intent to charge on a annual basis the total cost of the reclamation. Nichols stated the program is non refundable. The industry has accepted payment of the annual fee in lieu of the bond eliminates the paperwork and posting of collateral. If reclamation is not completed, the operator is not allowed to work in the state and the fees must be repaid. The liabilities are low in terms of reclamation of the mining site which is a nonrenewable resource. He noted many projects that cease operation are purchased by another operator and continue operation. The bond is then not forfeited. The Surface Mining Act provides for a four year period to elapse between non use and final reclamation. The definition states three years of non operation of a portion of the pit constitutes abandonment. The operator may appeal and negotiate an extension of the time. The department prefers to give an operator the opportunity to convey the operation another or to reclaim the site.

Senator Kennedy complimented the department in its attempt to make the program more economically feasible for the smaller business operators. Nichols explained to the Committee the Surface Mining Act states that when an operator's bond is forfeited it is to fully satisfy all obligations. He noted this is an area of concern for the department because of the bond limitations. In the proposed rule and under the Idaho Code, the department may recover costs expended in excess of the bond and the operator would not be allowed to continue business operations and his personal assets could be at risk.

Nichols noted the Surface Mining Act and the bonding provisions were established to encourage an operator to maintain a lower disturbed acreage. The department could increase rates for larger acreages or decrease the liabilities. Nichols stated the Board has the ability to reduce the liability. Senator Kennedy noted his concern that the public be adequately protected by the proposed rule, as well as making it easier for the small operators, along with an affirmative obligation by the operator.



Jake Howard, Executive Director, Outfitters and Guides Licensing Board, explained the rule deletes out of date provisions which are redundant and not necessary in rule form; expedited or emergency application fees, resubmittal, exceptional or special processing of application fees and for credit for online electronic filing of applications. Howard noted the proposed fee rule is supported by the industry and has been part of a 2 year process to improve licensing The Board has attempted to reduce the time for processing applications from 60 days to 3 days. Howard stated members of the industry were in attendance at the meeting in support of the proposed fee rule. During the improvement process it was necessary to address issues with the industry regarding the submission of applications. He noted the statutory changes made last year allow the Board to promulgate rules for improvements.

Upon inquiry from Senator Cameron, Howard stated the proposed fees are to offset the direct staff costs for processing the various types of applications. In 2003, there were in excess of 450 emergency or expedited application requests out of the total of approximately 2,000 applications. The abuse of the emergency or expedited applications will diminish when the use of online applications increases.

Chairman Noh informed the Committee the legislation necessary for approval of the pending fee rules will be coordinated with the House Resources and Conservation Committee.



The presentation by Department of Parks and Recreation was not discussed by the Committee as Director Collignon had previously explained the rule during his legislative update on February 2, 2004.

Conservation Easements Mark Benson, Director, Public Affairs, Potlatch Corporation, introduced Dennis Murphy, Potlatch Corporation, who will assist in answering the Committee's questions. Benson noted the trends occurring in how large forest land ownerships are being managed with new pressures on owners to do more things than just grow and harvest timber. Potlatch owns 1.5 million acres, 670,000 acres in Idaho. More people are buying more land for purposes other than timber. Many market place transaction are making it difficult for large landowners to hold land for timber management. He noted it is hard to justify owning land that is worth $1,000 an acre for forest land management when offered $3,000 an acre for other purposes. There are increased pressures on the land bases which are resulting in few acres still managed for traditional uses such as growing timber. Another trend is increased restriction on access to private lands which is further increasing property values.

In Arkansas, Potlatch's large forest land blocks are leased for hunting. It is hard to find any private land open for public access. Potlatch's land is leased to individuals or hunting clubs and is a substantial source of revenue for the company. In Minnesota, Potlatch would not have considered any other uses for the land five years ago other than open access and timber management and harvest. Three years ago, over the objection of some Potlatch employees and negative public reaction, Potlatch decided to lease a few acres for hunting. The companies' experience in Minnesota was unexpected; not only did the public not object to the company leasing land for hunting, but requested additional lands be leased. This year Potlatch will lease about 70,000 acres. Potlatch is finding that lessee's adopt a ownership interest by maintaining and protecting the land.

Benson noted in Idaho, Inland Empire Paper Company with land in north Idaho, now has a fee for use system. Anyone using IEP land pays to do so. Additionally, the Department of Fish and Game's Access Yes program is an opportunity for private landowners to provide their lands for permit hunting with conditions while providing a source of income for the landowner. He stated large landowners are beginning to restrict access to their lands because of damage or for other reasons. There are many changes occurring in land use in Idaho. Conservation easements are an opportunity for Potlatch to continue to manage the lands for timber and to make the land available to the public for use.

In September 2003, Potlatch deeded to the state 2700 acres in conservation easements. Included in the deed were development rights, rights of public access and some special management considerations along the scenic corridor of the St. Joe River. The total value of the easement was $650,000 with a portion from federal funding from the Forest Legacy Program along with private donations and a donation by Potlatch.

Benson stated in 2004 Potlatch plans to finalize the second phase of the conservation easement. Congress appropriated $3.5 million for conservation easement projects which will be matched with nonfederal funding, in kind contributions and donations. The number of acres anticipated to be conveyed will be between 20,000 to 25,000 acres.

In the future, Potlatch will continue to participate in the conservation easement program. The President's 2005 federal budget provides for conservation easements in Idaho so it will be known by the end of the summer what Congress appropriates for another phase of the project. Potlatch intends to make available up to 600,000 acres for conservation easements. Benson noted that there is limited funds available for finalizing the conservation easements. Potlatch supports the Forest Legacy Program in Idaho as a tool to provide Idaho with opportunities which will last for generations. He noted the easements are in perpetuity so generations will benefit from the public use access and the undeveloped state of the lands into the future.

Senator Stennett inquired if Potlatch intends for the state of Idaho to be the grantee rather than private organizations such as The Nature Conservancy. Benson replied Potlatch will continue to work with the state of Idaho because the company is comfortable with the state and the easements conveyed to the state. He noted there are many entities that can hold conservation easements, but Potlatch has chosen the state and would like to continue that direction with its conservation easements.

Upon inquiry, Dennis Murphy explained the landowner forest stewardship plan (LFSP) which is submitted to the Department of Lands stating the range of activity under the easement. If there are areas that ought to be restricted for motorized access, such as plantations and other sensitive sites, those would be identified as part of the LFSP, which gives notice of a particular area needing added protection. Upon further inquiry, he stated the stewardship plan is reviewed every five years and as other conditions arise there may be additional areas to be restricted. The general idea is that this would be a private landowner decision with approval of the Department of Lands.

Senator Kennedy inquired if part of the consideration relinquished by Potlatch is allowing public access to some of the areas that it would not ordinarily because of private property designation. Benson responded currently Potlatch lands are open to the public and the conservation easements preserves public access into the future. Kennedy further inquired if Potlatch would be relinquishing a right to remove timber from the property immediately by such methods such as clear cutting. Benson stated it is clearly the intention of Potlatch to continue to manage the lands according to standards in place and standards Potlatch has agreed to under the sustainable forest initiative which is a third party certification system. Any land owner in Idaho has to manage their lands under the state's Forest Practices Act. Benson stated it is not a risk that Potlatch would harm the lands in a manner contrary to what Potlatch has agreed to in the conservation easement.

Benson further explained the stewardship plan is a safe guard. Potlatch is committed to obeying the Forest Practices Act and following the stewardship plan which identifies the general level of activity. He noted, current state laws and the stewardship plan identify what level of activity can occur on the property. Upon further inquiry, Benson stated there are laws which govern the ultimate size of an area which can be clear cut. The easement makes the lands unavailable for development and available to users, but it is not intended to offer a pristine or wilderness experience. The intention is to allow the public use in a working forest. Upon inquiry, Benson stated Potlatch's hunting leases in Arkansas are about $4 per acre per year and in Minnesota up to $7 per acre per year. There is no affect on local property tax evaluations because in Idaho Potlatch pays taxes on the ability of the forest to produce timber and the conservation easement does not encumber timber production.

Senator Little inquired what percent of the development rights are generally given by Potlatch to match with the federal Forest Legacy Program. Benson stated the range could be as low as zero donation from the land owner. He would anticipate the range overall would be 5 to 10 percent. Little noted several contributors to the program have been subject to IRS audits. Benson stated Potlatch just celebrated 100 years as of November 2003. Potlatch is a very conservative company, very cautious and is not concerned over audits. Chairman Noh noted tax considerations must be taken into account in these programs. Murphy stated if in the appraisal process there is a charitable donation the IRS plays a role in the appraisal process. Two appraisers are involved; the primary appraiser must follow federal standards for land appraisal and there is a reviewer appraiser which provides a check and balance to the process.

Ron Litz, Department of Lands, provided a handout to the Committee which is attached to the original minutes of the Committee. He stated the Department of Lands is the control entity in the Forest Legacy conservation easement program in the state. He noted the department controls the appraisal process. He stated the easement is created to protect the state but also the land owner. There were 6 projects submitted this year to the department. Under a process of ranking the proposed projects, the criteria is based on the needs assessment completed in 2002 along with the guidelines set forth by the director of the department. Three of the 6 proposed projects were submitted to the Forest Service regional office. The Forest Service then incorporates these projects with the other projects submitted throughout the region. The Forest Service then determines through their ranking process which projects will be submitted to the national office. The reason for this is because the Forest Service administers the funds for the Forest Legacy Program. The ultimate determination for a project comes after ranking by the Forest Service and submit to Congress. Litz further noted the department is encouraged by the program because of the allowance of public access. Public access is a significant issue with the Department of Lands.

Senator Stennett noted state endowment lands are open to the public but could be closed. Litz replied that could conceivably be done but it is not the intention of the Department of Lands to limit public access.

Time having expired; the meeting was adjourned at 3:00 p.m.

DATE: February 6, 2004
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.
RS 13489C1 Karl Dreher, Director, Department of Water Resource, explained the proposed legislation addresses water right transfers: notice of application for transfer of water right and discretion of director for notice of proposed changes to point of diversion of place of use of a water right that do not impact the hydrologic system or affect the rights of other water users. Dreher stated the department has approximately 100 pending applications for corrections that would be affected by the proposed legislation.

Motion by Senator Little to send RS 13489C1 to print; seconded by Senator Brandt. Motion carried.

RS 13474C2 Dreher stated the proposed legislation addresses geothermal issues and sets forth that the director of Department of Water Resources shall not issue a permit for geothermal resources if the proposed well will decrease ground water in any aquifer, ground water source, prior water rights, or source for beneficial uses, other than as mineral, energy or material medium, unless the applicant has obtained a permit.

Motion by Senator Little to send RS 13474C2 to print; seconded by Senator Brandt. Motion carried.

Ground water quality Toni Hardesty, Administrator, Water Quality Division, Department of Environmental Quality, reviewed for the Committee ground water quality

issues. The handout provided by Hardesty is included in the original minutes of the meeting.

The Ground Water Quality Protection Act prevents contamination of ground water from point and nonpoint sources of contamination to the maximum extent practical. The policy and rules under the Act are to maintain and protect the existing high quality of the state's ground water. She noted the restoration of degraded ground water to support beneficial uses is also policy under the Act. To accomplish these goals evaluations of nutrients and pathogens is conducted as part of the permit and approval

review processes. Restoration activities are centered on high nitrate priority areas. She noted ground water is used by 90 percent of Idaho's population for drinking water and domestic purposes. The most widespread ground water contaminant in Idaho is nitrates with 3 percent of the sampled sites having a contaminant level above 10 mg. Another 30 percent of the sampled wells have levels of nitrate between 2 and 10 mg.

The department identifies areas with significant degradation, prioritizes them, develops ground water management strategies and reviews the effectiveness of the management strategies. In developing the ground water management plans the department establishes local groups and includes state and federal agencies. She noted the importance of the development of Best Management Practices (BMPs) through education, regulations and monitoring results.

In reviewing the effectiveness of a water quality management plan, flexibility in refining the proposed strategy, enacting additional protective measures and possibly recategorizing the aquifer need to be considered.

In nutrient pathogen evaluations, the prevention of contaminations is necessary to prevent undesirable health effects.

Barry Burnell, Department of Environmental Quality, stated 2 milligrams per liter is the evaluation point for determining whether the ground water has been impacted or not. Anything under 2 milligrams per liter is considered natural conditions. The department is working with the USGS to evaluate nitrate trends in priority areas. He noted USGS's report sets forth where the trends are increasing and decreasing in the long and short term. Upon inquiry, Burnell stated the data is tied to the state wide monitoring network which began in the late 1980's. He noted there is data for before that time which was gathered by the Farm Bureau on a county by county level.

Hardesty stated once areas are identified with degraded ground water, the department identifies the area with significant degradation, prioritizes the areas, develops ground water management strategies, and determine the effectiveness of the strategies. In reviewing ground water management plans, local groups are established to develop the management strategies through BMPs, ordinances and education. After the ground water management plans are implemented and have had a period of time to work, the effectiveness is then evaluated. If the goals of the plan have been met, the area is then removed from the priority list.

Hardesty stated the department's goal is to protect and prevent ground water contamination rather than restoration. When subdivisions are proposed, nutrient pathogen evaluations are important to the department as they are designed to prevent contamination and an undesirable health effect. The evaluations determine if a proposed subdivision will affect water quality in the proposed area. Characteristics of the aquifer and the waste treatment system design are considered in the evaluation process. Hardesty noted that the Health Districts lead the evaluation process with the department assisting them.

Kathy Holley, Director, Central Health District, Boise, introduced Mike Reno, Central District Health, who stated, when a developer requests a permit the health district appraises the proposed area. The first determination is whether a nutrient pathogen study needs to be done. The the developer receives a spread sheet providing background information in relation to relevant condition. If it is determined the proposed project does not pass a level one spread sheet analysis, the developer has the option to obtain on site data for the nutrient concentrations of the ground water. Upon inquiry, Reno said this would mean drilling a test well. Reno stated there have been subdivisions where the lots had to be reconfigured to avoid the ground water flow pattern or the size of the lots may be increased. Planning and zoning permits are applied for at the same time the health district permit application is made. The determination of the health district is then submitted to planning and zoning on the pending application. Upon inquiry, Reno stated it was sometimes necessary for developers to install a central nutrient reduction system which can reduce nutrients up to 40 percent. Another alternative would be land application treatment through the Department of Environmental Quality. Upon further inquiry, Reno noted it is the health districts in each of the counties that determine the areas of concern within the county.

Upon inquiry from Senator Burtenshaw, Rob Howarth, Central Health District, informed the Committee there is an experimental tool being further developed to refine the determination of the origin of ground water nitrates. Hardesty further explained the nitrate contaminates do move and will change as ground water conditions change.

Reno further informed the Committee that nitrate is a conservative ion and is not absorbed as it moves through the soil. Once the nitrates hits ground water it will disperse and the rate of spread can be determined. It essentially moves with the water.

Senator Stennett inquired if nitrates dilute. Burnell stated nitrate will degrade through and under very limited conditions when there is bacteria which will denitrify and convert it to nitrate gas. In order for those conditions to occur, there must be anaerobic conditions and a carbon source must be present for the bacteria to use as a food source. Under certain limited conditions, there could be denitrification. He noted those conditions are typically not present in an aquifer or ground water.

Time having expired; the meeting was adjourned at 3:00 p.m.

DATE: February 9, 2004
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 Williams to approve the minutes of January 19, 2004; seconded by Senator Kennedy. Motion carried.
Senator Keough introduced Craig Hill of Priest Lake, Idaho, a gubernatorial appointee to the Lake Pend Oreille Basin Commission to serve a term commencing July 24, 2003 and expiring July 24, 2004.
Craig Hill informed the Committee of his personal, educational and professional background, noting he is a second generation Idahoan. He stated he is concerned about the water quality of Priest Lake and the economy of the area inasmuch as he owns and operates Hills' Resort on the lake. He noted the unusual clear water of the lake and how it is important to maintain that quality and quantity. Upon inquiry, Hill stated his political affiliation is Republican.

Representative Eskridge reiterated to the Committee the importance of the Lake Pend Oreille Basin Commission and the quality of those appointed to the commission. He further encouraged the Committee to recommend Hill's gubernatorial appointment to the full Senate.
H 510 Jay Biladeau, Assistant Director, Department of Lands, explained H 510 amends the statutes and allows the State Board of Land Commissioners authority to include mineral rights in the sale of state lands. He noted currently mineral rights are reserved by the state when state lands are sold. The reservation of mineral rights can negatively affect the value of the land where major improvements are to be constructed. He stated it would be financially better for income to the endowments, if mineral rights were conveyed with the property. He noted revenue to the endowment funds will increase due to the development of high value commercial or industrial businesses which will generate market rent on endowment lands.

Upon inquiry from Senator Little, Biladeau noted if the state has retained the mineral rights, those rights can be leased through a ten-year lease with restrictions.

The Committee was provided a copy of a letter from the Idaho Conservation League, dated February 9, 2004, from Justin Hayes, Program Director, stating their opposition both to primacy and to H510.

Upon inquiry, Biladeau further noted under land exchange the state does have the right to exchange the full ownership.

Motion by Senator Little to send H 510 to the floor with a do pass recommendation; seconded by Senator Stennett. Motion carried; Senator Schroeder noted as voting nay.

NPDES Steve Allred, Director, Department of Environmental Quality, informed the Committee that under the Clean Water Act state and federal permitting is required for facilities that discharge into waters of the U.S. The Environmental Protection Agency currently has primacy for the National Pollution Discharge Elimination System (NPDES) program in Idaho. He noted the permit places limits on what can be discharged and other provisions to ensure the discharge does not harm water quality or public health. Allred stated one program within the Clean Water Act that is not delegated to the state is the program which issues pollution discharge permits (NPDES). The state's current role in this regard is to issue 401 certification through DEQ. EPA will use the certification to determine that the permits issued by EPA will meet Idaho's water quality standards. This gives the state some control over what goes in to the permit but little control over what else the state might not want included. EPA has issued NPDES permits to cities for the discharge of industrial sources. Additionally, under the Clean Water Act the storm water runoff regulations require cities and businesses to have a plan which meets EPA regulations. He noted the state has intervened with a compliance order in connection with cities subject to an enforcement action by EPA because of violation of permit conditions. EPA then recognizes the compliance order in lieu of taking enforcement action. He noted the storm water control NPDES have become a national priority and there is substantial funding in the EPA budget for this.
Toni Hardesty, Department of Environmental Quality, provided a handout to the Committee which is included with the original minutes of the meeting. She noted since 2000 DEQ has been involved with a steering committee representing industry, cities, agriculture, forest management, environmental interests, along with state and federal agencies in the evaluation of potential state primacy for the NPDES permitting program. Currently DEQ is responsible for certifying facilities under Idaho water quality standards through a process known as 401 certification. In addition, DEQ performs some NPDES inspections for EPA under a state agreement.

In reviewing and evaluating state primacy, the initial process by the committee determined the scope and estimated cost of a Idaho NPDES program which would meet the requirements of the Clean Water Act. The advantages, disadvantages and uncertainties of an Idaho program resulted in the determination that state NPDES was possible, but a further analysis of the costs and benefits was needed.

Phase two addresses whether the state has the capacity to run the program, as well as program costs and funding. Additional key issues are the interrelation of NPDES primacy and the Endangered Species Act, a flexible and innovative state NPDES program, storm water and water quality based effluent limits. Hardesty noted DEQ is drafting rules, providing training for personnel and will seek 2 new positions for the ongoing evaluation of the program.

She stated EPA would be required to consult with US Fish and Wildlife Service and National Marine Fisheries Service on the state's primacy prior to authorization. When state primacy has been attained for the NPDES, further consultation with the federal agencies on individual permits will not be necessary, but the federal agencies can comment through the public review process. She noted state primacy would allow flexibility and innovative ways to ensure water quality in Idaho.

There are 916 permitted facilities within the state, Hardesty estimates 21 full time employees would be necessary in the administration of the primacy program. Costs for a permit would include the issuance, annual inspections, data management system, compliance and enforcement, administrative and water quality standards costs for DEQ. She noted the permit system should be simple with limited administrative requirements for permit holders or DEQ. An alternative for funding would be the sharing of costs between applicant, state and federal agencies.

In a comparison between a state and the federal program, noted advantages were: state ability to interpret and apply Idaho standards, coordination of water programs within the state, the elimination of the permit-by-permit consultation required under ESA, and the use of state solutions to water quality temperature, nutrients, cadmium and mercury concerns.

Hardesty stated members of the steering committee support state primacy provided program costs and funding, capacity, and flexibility regarding the program are resolved. DEQ will pursue legislation to allow the NPDES program to be administered by the state. Further development towards state primacy are constrained due to department budget constraints. A legislative in 2003 to move more rapidly ahead attempt was not successful.

Upon inquiry, Hardesty stated DEQ has a grant from EPA to assist DEQ to be prepared to take over the program should legislative approval be achieved. DEQ has participated in inspections, training, reviewing and drafting permits. Upon further inquiry, she noted there is $35,000 left in the grant fund account which will expire the end of June.

Dick Rush, Idaho Association of Commerce and Industry, representing 300 Idaho companies and associations, stated the support of IACI for state primacy with conditions. He stated the IACI environmental committee is comprised of businesses connected with natural resources and environmental issues.
Alan Prouty, Chairman, Environmental Committee, Idaho Association of Commerce and Industry, and Director of Environmental and Regulatory Affairs for J.R. Simplot Company. Prouty said the federal environmental statutes envision the programs will be administered by the states. IACI has supported state primacy in the programs because the state has the flexibility allowed by the statutes to make decisions best for Idaho. Idaho does not have primacy for waste water permits and IACI supports the state primacy over EPA with conditions. One of those conditions is a reasonable cost for the program. An additional issue is developing the skill level and resources within DEQ to administer the program. The EPA role in permitting does not allow the flexibility that would be available through the state. Another consideration is the Endangered Species Act. Under ESA and the Clean Water Act, if the state has the waste water program then ESA consultation is not required. The financial considerations for permitees who must consult individually put them at a competitive disadvantage with other states which already have primacy. He acknowledged the good cooperation and professional efforts by DEQ in facilitating information and discussion in the development of a state program. He urged the formation of a task force for further discussions and consensus of a NPDES state program.
Kevin Beaton, environmental attorney representing Potlatch Corporation, informed the Committee he has been working on the issues for almost 10 years since the first water quality TMDL legislation was enacted in 1995. He stated his support for state primacy. Potlatch supports state primacy over the NPDES program. Potlatch has been going through a permit consultation process with USFWS and NOAA resulting in significant expense to the company. Beaton noted a state administered program would be less costly and more flexible to meet the needs within the state. Potlatch competitors in the northwest do not have to go through that process because the states they are in have primacy. Any proposed state fee structure would be less than the costs expended through the federal program.

Beaton noted the state expends significant funding for site specific water quality and quantity criteria along with TMDLs to implement the standards through citizen advisory groups. If the state does not have control over the point source permit program, it is simply advocating its control over the TMDL program as it relates to point sources and implementation of water quality standards.

Beaton stated over the last few years there has been an increasing trend in case law regarding the types of activities subject to point source permits. He noted this is particularly evident in the Ninth Circuit Court jurisdiction. EPA is taking a broader view of the kinds of activities that once were considered nonpoint source activities and they are now required to obtain a permit. He noted an appeal before the U.S. Supreme Court of a case from Florida where the state court held the transfer of water from one basin to another required a point source permit under the Clean Water Act. The assumption in that case was the water was dirtier from the transfer basin to the receiving basin so pollutants were added creating the point source. The decision by the U.S. Supreme Court should be issued within the year. Beaton noted this is another example of the issues becoming more complicated under the Endangered Species Act and Clean Water Act, as well as under the NPDES program. Potlatch and many industries in the state support state primacy.

John Eaton, Governmental Affairs Director, Building Contractors Association of Southwestern Idaho, and also representing the Idaho Building Contractors Association, stated the two organizations do not support DEQ moving forward with state primacy for NPDES program. concerns relate to what the initial costs and ongoing costs, will be to the building industry. In reviewing other states' NPDES program, builders are affected in a number of ways. There are issues somewhat different than what a company such as Potlatch would go through. The associations are affected by permits issued through cities. Each city requiring a permit from EPA does not have to pay a fee for the EPA application. If the program was shifted to DEQ, there would be a department fee added for processing the permit. This would increase the fees for building permits. He noted if there is not a consultation with EPA for ESA there could be some monies saved by the cities but then there would be the DEQ fee. The associations are not convinced that state primacy will be cost saving throughout the state.
Robin Finch, Water Quality Manager, Boise City, and also representing the Association of Idaho Cities, informed the Committee the cities play a key role in the administration of the Clean Water Act of 1972. The point source program is the successful portion of CWA. Originally CWA provided funding to cities through grants. In 1987 all the funding was removed so any additional improvements since that time are funded through local revenue sources. He noted the cities have a dual role through the permit issued to the cities by EPA and then the permits issued by the cities to entities that discharge into the system. The NPDES program is better applied at the state level than at the federal level. The state has a better understanding of the local conditions which require permits. The association and Boise City have been involved in NPDES program since 2000. Finch stated the cities are encouraged by the progress to date towards state primacy.
There being no further matters to come before the Committee, the meeting was adjourned at 2:50 p.m.

DATE: February 11, 2004
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.
Vote Motion by Senator Schroeder to recommend the gubernatorial appointment of Craig Hill to the Lake Pend Oreille Basin Commission; seconded by Senator Cameron. Motion carried.
Residential forest fire interface Ron Litz, Assistant Director, Department of Lands, informed the Committee on issues relating to the residential forest fire interface. He noted the disastrous wildfires in the past few years and have caused extensive property damage and human lives lost. The situation is complicated by the increase in residential development in forest land. He noted the planning and zoning regulations and other related infrastructure has not progressed with the developments. Education and implementation of regulatory statutes is essential. Incentives of grants to the homeowners for the needed fire protection work is important. A disincentive would be to raise taxes until the fire protection requirements were met. Another option would be if the insurance companies not issue policies on homes not meeting the fire protection requirements.

He noted the national fire plan is an excellent example of an approach because of the grants provided to make the needed fire protection work. Oregon has a disincentive through added taxes if the homeowner does not meet certain fire protection requirements. The refusal to issue an insurance policy has been implemented by State Farm Insurance in Colorado.

Idaho has in place the national fire plan. After the fires of 2000, the federal government recognized the problem and developed the national fire plan. He noted Governor Kempthorne was instrumental in representing the Western Governors' Association in urging the completion of the national fire plan with the provision that the states are the lead agencies. The state of Idaho is the primary deliverer of the national fire plan which is administered through Peggy Polichio, Department of Lands. The national fire plan provides education and funding to reduce the risk of catastrophic wildfires. Idaho developed a strategy to achieve the reduction by having the counties be the lead agencies for the risk assessments and mitigation planning. There is a statewide coordinating group which oversees all the activities in the state by prioritizing the grants. This eliminates duplication of grant funds from various agencies. The statewide group is comprised of Department of Lands, Department of Commerce, Governor's Office, Bureau of Disaster Services, RC&D, the Association of Counties, Idaho Fire Chiefs and the federal agencies: Forest Service, Bureau of Land Management, Parks, Fish and Wildlife Service, FEMA and BIA. The national fire plan provides the incentive through funding for a wide variety of activities, including homeowner grants for hazardous fuel treatment activity on their property, training and educating fire district personnel, equipment for fire fighting, and the Fuels for Schools program. He stated the department recognizes the need to have a balanced approach. Idaho would benefit from additional revenue authority. If there is an increase in regulatory requirements, the counties are the logical entities. The Department of Lands is a wild land fire organization and does not fight structural fires which are taken care of by the rural fire districts.

Litz provided to the Committee a map depicting communities at risk indicating subwatersheds classified according to their area-weighted average of community-at-risk values. The map is attached to the original minutes of the meeting.

Upon inquiry from Senator Kennedy concerning the high priority designated area between Boise and Mountain Home, Peggy Polichio stated that in comparison to other areas there is more risk. Structures and vegetation are some of the attributes contributing to the designation. She also noted that over a 20 year period fire behavior patterns are also considered. She further explained that even though there was not a high density of structures, there are a significant number of structures in that area combined with high vegetation.

Upon inquiry, Polichio stated all the agencies with wildlife fire protection responsibilities work together and set priorities with life and property the highest, along with protection of wild land.

Brian Shiplett, Department of Lands, stated after identification of the risk to life and property the resources are allocated to protect and control the fire. A management team assigned to the fire decides what resources are needed to protect and control and then request what is needed.

Upon inquiry from Senator Little concerning fire expenses, Shiplett stated blocks of land within Idaho are designated for full fire protection responsibility by written agreement among the wild land agencies. The agency responsible for a specific area pays the total bill. The agreement between the agencies are for a five-year basis. He noted the national forests would like to protect largely national forest lands and the Department of Lands has the responsibility for the protection of state and private. Upon further inquiry regarding protection of private property, the rural fire districts have the structural responsibility. He noted there are a number of agreements with the rural fire districts. Overlaying a population density map with rural fire protection districts, the maps are very similar. Most of the population concentrations do have some sort of structural protection organization in place. A portion of the homeowner fee for protection comes from a developed parcel fee because of the potential fire threat. In the initial stages of a fire, initial suppression is undertaken through mutual aid agreements regardless of fire protection agency designation. If the fire advances or progresses then the designated agency takes over. The first $3500 of the costs of each fire is the responsibility of the rural fire district.

Peggy Polichio, National Fire Coordinator, Department of Lands and U.S. Forest Service, stated in a three year period over $21 million has come into Idaho from all federal agencies through the fire agreements. $8 million is designated to the Department of Lands for hazardous fuels reduction on private lands within the state. She noted another $2 to $3 million will be available in the spring for grants. The grant process encompasses the counties' wild land fire mitigation plans and application for grant funding through those plans. Grant applications are also from homeowner associations and other kinds of communities. There is a mechanism to consider individual homeowners, but the grant process is not considering those at this time. The property proposed under the grant is reviewed and evaluated by a forester. $300 to $1,000 per acre is the range for contracts at the present time. The work could be done by a contractor or the homeowner. Upon inquiry, Polichio stated she will provide a list of the counties that have submitted completed fire mitigation plans. The plans are the result of review of the fire threats within the counties and county determination for elimination of the hazard. Some counties have more, some less, specifications.
Bob Cope, Lemhi County Commissioner and representing the Idaho Association of Counties, Salmon, Idaho, stated the Lemhi County mitigation plan compared other counties needs and specifications. Lemhi county chose to handle the program on the county level because of the local expertise and local fire knowledge is readily available. Lemhi County compiled their plan through cooperative efforts from federal, state, county and city entities within the county. The county was divided into areas and drainage, rated by fire occurrences, amount of fuel, population, and effectiveness of fire prevention and response. Four areas were specifically identified as the highest risk in the county. Currently Lemhi County, the private landowners, BLM and the Forest Service cooperate in a subdivision's fire protection. The Gibbonsville fire plan has been completed and the work is ready to go, but is under appeal by three groups. He noted the Gibbonsville community has been evacuated twice in the last four years because of fire danger. The homeowners in that area are removing the timber, slash and lighter fuels but forest lands are within 50 feet of structures. Those forest lands adjacent to the private property need to have the fire fuels reduced. He noted because of the variances throughout the state it would be difficult to develop state wide standards that would adequately cover all the areas within the state. He urged educational and incentive processes rather an governmental mandated programs. In some areas of the state, fire restrictions for homeowners may be ideal, but not necessarily applicable in other parts of the state. He noted the program should be locally based with local incentivities to encourage protection and better return rather than through a state mandated program.

Upon inquiry, Cope stated the program in Lemhi County follows the fire wise program with the elimination of fire fuels and thirty foot gaps between trees. At the present time, shake roofs are discouraged which is reinforced through homeowners insurance companies. He noted State Farm is the first insurance company that will not insure houses in the wild land areas with cedar shake roofs. Upon further inquiry, Cope noted in the Lemhi mitigation plan there are several areas which need road improvement to facilitate fire suppression. Home evaluations in high and moderate risk areas, fire wise workshops, home site survival and wild fire behavior education, hazardous fuel treatment, wild fire suppression training, along with active and continuous fire training, additional fire protection equipment, improving access routes and county wide evacuation are some of the issues addressed in the Lemhi plan. Lemhi County will begin developing comprehensive planning and zoning ordinances incorporating the fire mitigation plan within the next two years.

Cope reminded the Committee the amount of public land within each county varies significantly throughout the state. The geography, topography and demographics are too varied throughout the state for a single plan.

Upon inquiry, Litz noted at this time State Farm is the only insurance company to their knowledge which has wild land fire insurance restrictions in Colorado. The department has not researched the fire insurance issue.

Senator Little noted structures are classified by the insurance companies in relation to distance within a fire district. In Gem County, road width must accommodate fire equipment and evacuation.

Litz noted the national fire plan has provided good cooperation among the various governmental entities and will enable further fire protection planning and protection.

Senator Kennedy inquired what regulatory agency would be responsible for fire protection requirements for subdivision developments within heavily forested areas. Litz stated that other than the national fire plan, fire protection is a voluntary program. The Department of Land believes a balanced governmental entity approach should be utilized for fire protection. If a homeowner does enter into a fire mitigation plan and receives funding for the plan, then there is a contractual obligation.

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

DATE: February 13, 2004
TIME: 1:30 p.m.
PLACE: Room 433
Meeting cancelled due to lengthy floor debate on legislation.

DATE: February 16, 2004
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.
RS 14003 Senator Stennett introduced Fred Christensen, President, Citizens Against Poaching. Christensen explained to the Committee RS 14003 would extend the statute of limitations for prosecution of certain fish and game misdemeanor offenses. He noted often the investigation of the alleged offenses takes longer than the current two year limitation. The added year would provide extra time to complete the investigation so that the effort spent by the department is not wasted and the case can be properly completed.

Motion by Senator Little to send RS 14003 to print; seconded by Senator Stennett. Motion carried.

RS 14084 Norm Semanko, Idaho Water Users Association, explained RS 14084 would authorize repairs, improvements and maintenance by an irrigation delivery entity in the event that a water users' association for a lateral has not been established. He noted any individual water user may authorize the irrigation delivery entity to perform the necessary repairs, improvements and maintenance, but can only perform such work if it has duly adopted a by-law or resolution authorizing the work. In performing the work, the irrigation delivery entity shall have the same rights and privileges to enter the land as does the water user authorizing the work. Semanko further noted the irrigation delivery entity does not assume ownership of the lateral or responsibility for any liability for any injury to person or property. The costs for the authorized work shall be assessed to the individual water user for the annual cost or necessary repairs, improvements or maintenance, in addition to any assessments levied by such entity.

Senator Ingram urged the Committee to send RS 14084 to print explaining the significance of several laterals in downtown Boise under the purview of the Boise City Canal Company. He noted due to the change in demographics of the population and the ability and knowledge of the public to handle the needed work the proposed legislation would assist the irrigation delivery entities in performing the needed work.

Norm Semanko, Idaho Water Users Association, stated the support of the Association, noting the proposed legislation has been given a thorough review and consideration by their association. Semanko introduced Alan Winkle, Boise City Canal Company, who is present to answer any questions the Committee may have.

Motion by Senator Burtenshaw to print RS 14084; seconded by Cameron. Motion carried.

S 1295 Karl Dreher, Director, Department of Water Resources, explained S 1295 is for the purpose of reducing the backlog of water right applications and to streamline the process The legislation would provide the director with the discretion of whether to provide notice of proposed changes to the point of diversion or place of use of a water right that does not impact the hydrologic system or affect the rights of other water users. He noted an example of this type of change would be the correction of a legal description which are errors typically determined by the use of technology, such as global positioning systems.

Dreher further stated the applications the proposed legislation would apply to would meet strict criteria. He noted since 2001 almost 700 applications to transfer water rights were filed with the department. Of those, less than 10 percent involve corrections to legal descriptions for place of use, points of diversion or do not represent any change. The way to correctly document place of use and point of diversion is through a transfer application. The department proposes, where the strict criteria is met, the director would have the discretion to determine what notice would be appropriate. Dreher explained the existing statute references another section of the code dealing with the notice provisions for an application for permit to appropriate water. These applications are for transfer and not applications for permits to appropriate water. The criteria would not apply to transfers for a change in the nature of use. Any change in the nature of use will still be noticed regardless of how small the change. Any time there is a change of use there is the potential to affect other rights, the source or public interest concerns. Only a change to the legal point of diversion or the legal place of use and changes that would have no affect on the source before or after the change would be affected by this legislation. The legislation is intended to apply to quantity and quality. If the changes affect quantity or quality, notice must be provided. Ninety-nine percent are changes to correct legal descriptions.

Justin Hayes, Program Director, Idaho Conservation League, stated their opposition to the legislation because of concern over any instances in which information currently available to the public is no longer available. The public will be harmed by the lack of information. He expressed concern that the legislation contained ambiguity and urged the Committee to oppose the legislation.
Norm Semanko, Idaho Water Users Association, stated their support for S 1295. He noted the association has reviewed the legislation in detail and has provided comments on the legislation during the draft process. The association supports the legislation. He noted the legislation does not change the application process.
Motion by Senator Cameron to send S 1295 to the floor with a do pass recommendation; seconded by Senator Pearce. Motion carried. Senator Stennett and Senator Kennedy voting nay.
S 1296 Dreher then explained to the Committee S 1296 is to provide that the director of the Department of Water Resources shall not issue a permit for a geothermal well or injection well if the well would decrease the ground water in any aquifer or other ground water source for other beneficial uses, unless the applicant has obtained a permit to appropriate ground water. He noted the present statute only requires a water right be obtained if the geothermal well or injection well would unreasonably decrease the ground water available for prior water rights. Dreher noted that if water is in excess of 212 degrees it is then considered a mineral. In developing a geothermal resource, it is important to maintain the maximum temperature. If the geothermal resource is mixed with cooler water, some of the heat value is lost.

The legislation is not intended to hinder the development of geothermal water but is intended to encourage good construction methods so the geothermal resource is withdrawn and used without a water right so long as it does not affect other water.

Dreher stated a pending application of a feasibility study involves a second use of the geothermal resource after it is cooled and is no longer geothermal. The proposal is to connect a fish farm to the outfall from a geothermal plant in the Raft River area. The geothermal resource would be withdrawn and the heat removed and the condensates would be used to raise fish. Under the current statute and as the statute would be amended, a water right would be needed.

Semanko informed the Committee that the Idaho Water Users Association supports S 1296.
Motion by Senator Cameron to send S 1296 to the floor with a do pass recommendation; seconded by Senator Pearce. Motion carried.
There being no further matters to come before the committee, the meeting was adjourned at 2:55 p.m.

DATE: February 18, 2004
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.
Motion by Senator Kennedy to approve the minutes of January 21, 2004; seconded by Senator Burtenshaw. Motion carried.
RS 14147 Senator Stennett explained RS 14147 extends the statute of limitations to five years for certain fish and game offenses. Unanimous consent of the committee was given to send RS 14147 to privileged committee for printing and return to this committee.
Winston Wiggins, Director, Department of Lands, reviewed the department's policies and rules regarding the state timber harvest policies. Provided to the Committee were copies of the letters pertaining to the Notice of Intent to Sue filed by the Land and Water Fund of the Rockies, now known as Advocates for the West, dated May 22, 2002, and July 29, 2002, and related correspondence from the Department of Lands dated July 17, 2002, and January 3, 2003. The copies are attached to the original minutes of the Committee.

Wiggins informed the Committee the Department of Lands is charged with managing 2.5 million acres of state endowment trust land. This is land that was granted to Idaho upon statehood for the purpose of supporting 9 separate institutions that the federal government determined were essential to operation of the new state. The original grant was 3.6 million and through consolidations and sales in the early years of the state the acreage has been reduced to 2.5 million acres. One million acres is classified as forest land and 800,000 acres of that is primary forest land. The primary forest land is actively managed to generate revenue. That provision is in the Idaho Constitution and is specific. He noted the provision is also a requirement of the Admissions Act that granted Idaho statehood. The Idaho Constitution requires that the trust lands be managed to maximize the long term financial term to the beneficiary institutions. The generation of long term financial return is the objective of the department and the State Board of Land Commissioners in relation to the trust lands. The State Board of Land Commissioners are the trustees and the Department of Lands manage the lands on behalf of the Board. He further clarified that there are 9 separate trusts. Each piece of land has a specific trust owner. He noted the revenues and expenses are tracked to the specific trust. There are separate trusts and are not co-mingled of funds and activities.

Wiggins stated active management is the key to meeting the fiduciary obligation to the trusts. The revenue stream and the value of the underlying asset is tied to the health of the asset. If the timberlands were allowed to deteriorate there would be losses related to insects, disease, fire and other prevalent concerns which are evident on other land ownerships throughout the state and western states. The goal of the department is to maintain the lands in a vigorous and healthy condition. The department conducts a regular analysis of the conditions of the lands on a five-year rotating basis. The data collected allows plans to be generated to meet the objectives of the respective lands. In the past few years, 182,000 million board feet per year has been harvested from the land. The harvested land are scattered throughout the state.

Wiggins noted in developing the department's budget for this year, there were significant concerns about the health of some of the timber lands. He stated he believed there were number of acres in the state that have too many trees for their long term health. In order to achieve the potential the lands have for long term productivity, it is important that the excess trees be removed. The department has submitted a proposal to increase timber harvest to 202 million board feet in 2006 and 212 million in 2007. The 212 million board feet level would be held for ten years while the department reassess the program. In order for the department to be certain of the figures, an independent verification was conducted by a forestry consulting firm in Portland, Oregon. Their analysis was that the proposal was sustainable, but it was conservative based on the potential growth of the lands and the condition that they are in. He noted the proposal has been approved by the Joint Finance and Appropriation Committee. There will be 10 additional full time employees and $1 million for the implementation of the additional harvest beginning in 2006.

Wiggins stated that the state has specific obligations under state and federal law which are recognized by the department and the Board for compliance. At the state level, the Idaho Forest Practices Act is recognized and adopted by EPA as the standards for Idaho and also includes the Endangered Species Act. The Endangered Species Act has specific provisions which apply to nonfederal land owners which are different from federal land owners. The standard to which Idaho must comply is the standard of "take," which means do not kill one of the members of a listed species. He noted the court's have interpreted the definition in a broader scope taking into account modification of habitat.

Wiggins stated the two letters of Notice of Intent to sue under ESA from the Land and Water Fund of the Rockies representing four environmental groups: Idaho Conservation League, Members of Wildlife, Alliance for the Wild Rockies, and Selkirk Conservation Alliance. Copies of the letters are attached to the original minutes of the Committee. He noted the letters allege take violations of the ESA in the Priest Lake area. The department met with the representatives of the environmental groups in October 2002 for an exchange of ideas. The department responded to the groups in January 2003 outlining the department's position on the allegations. He stated the department was in full compliance with the ESA, but outlined certain measure that the department would undertake to alleviate some of their concerns. He noted the department also encouraged them to be more proactive in providing public input to the timber sale program. The timber sale programs are advertised every year on two different occasions for comments and observations prior to consideration by the Land Board. The department has not heard from any of the groups.

Wiggins further informed the Committee the organizations had identified a couple of timber sales in the Priest Lake area of concern to them. The Lake Fly timber sale has had some modifications on the sale and the department has worked with the Department of Fish and Game to make some adjustments that would alleviate the concerns of the environmental groups. The changes would not impact the department's activities in regard to the sale. He stated the environmental groups were notified in January 2004 that the department intended to proceed with the sale. The sale was approved to go to auction by the State Board of Land Commissioners recently. The sale will be advertised, which the timber will be sold at public auction.

Upon inquiry from Chairman Noh about a focus on cutting large trees, Wiggins stated the timber will be harvested with a focus on stands in an overstocked, unhealthy condition. He stated he has given no specific direction regarding trees of any age or of any particular characteristic. The department's intent is to bring the stands into a healthy condition. The decisions will be made on a site-specific basis by professional foresters on the ground who will select the stands and develop the prescriptions used for harvest. Trees of all sizes and all species will be considered for harvest.

Upon inquiry from Senator Burtenshaw, Wiggins stated that the salvage of visibly dead trees depends on the species and the time that has elapsed since the tree died. Certain species deteriorate very rapidly. Some of the trees are still usable for saw timber 2 to 4 years after they die. In other cases, some trees become pulp wood and are only good for chipping very quickly.

Upon inquiry from Senator Burtenshaw, Wiggins stated the objective is to maintain the timber stands in good condition, but when a problem occurs the department targets those areas as soon as possible. The department is committed to prompt salvage where it reasonable to do so. They target areas that show signs of the bark beetle quickly to prevent spread and infestation.

Upon further inquiry, Wiggins stated the department allows salvage in burned areas. He noted the size of the burned area and access would be the determining factor. At Priest Lake this year there was a sizeable timber sale in a burn area which has resulted in salvaging some of the timber.

Senator Williams commented that on a tour of northern Idaho forest lands he was most impressed with the management on private and state lands, but was discouraged with management on federal lands. The federal forests were sick and in a terrible condition. He further congratulated the Department of Lands for stepping forward and doing the best they can in the management of state lands.

Chairman Noh inquired whether the woodland caribou, grizzly bear and bull trout are species of concern in the same block of land? Wiggins stated

two-thirds of the state forest land is impacted by some listed species under ESA. He noted bull trout is the species of concern geographically throughout the state. Grizzly bear could also be included in the Priest Lake and eastern Idaho areas. The sturgeon out of the Kootenai River would also be included in the list.

Wiggins noted the Priest Lake area is unique because of the number of species located in the same area. In 2001, the department and the U.S. Fish and Wildlife Service began efforts in the Priest Lake area for incidental take coverage under ESA. In exchange for undertaking certain practices by the department, USFWS authorizes incidental take. He noted there are several methods to provide for incidental take coverage. These efforts are ongoing by the department and are not inconsistent with the requirements of ESA. He noted the value of the state land ($800 million to $1 billion) with a revenue stream of $40 to $80 million per year along with the payout to schools, justifies the incidental take insurance acquired to protect the state's activities from a court challenge. He noted the department's efforts are not cheap or quick. In the department's budget this year, an additional position has been requested along with $350,000 to support these efforts regarding incidental take coverage for state lands.

Steve Strack, Deputy Attorney General, stated a habitat conservation plan is submitted to the NMFS or USFWS for approval. The state also can, through Section 6 of ESA, enter into a cooperative agreement for conservation of endangered species and state protection. He noted there is flexibility within ESA which is being considered for the Priest Lake area and through the Snake River Basin Adjudication. There are a number of ongoing efforts and options at this time being considered by the department.

Upon inquiry, Wiggins stated the department's road management policy has not been changed significantly. The Priest Lake lands have been under management for many decades by the state. The early logging consisted of steam donkeys and flumes for sending the logs to the lake. The logs were then barged down the lake to the outlet. He noted the remnants are evident on the lands. In the 1940's road building began in the area which would not be consistent with the Forest Practices Act and would be considered violations today. Wiggins stated because technology and scientific knowledge have progressed so has road building practices. Most of the state land at Priest Lake has roads because of the early logging practices. The department continues to build roads as appropriate for access for timber harvest. He noted the current techniques are more sensitive to the environment. The department has closed and obliterated some roads at Priest Lake. He estimated there has been some 300 to 400 miles of roads permanently closed. Wiggins noted the land is so productive that if a road is left for an estimated 15 years, the road will close itself because of tree growth. He stated it was appropriate the roads were closed. The old roads were narrower, had inadequate drainage and log culverts. Wiggins stated the department has a road management program which requires gating roads. The department would like to have localized single all weather type of access into drainages with an appropriate number of side roads where access would be restricted so the public has access to the drainages but not every corner. He noted that gates on roads in remote areas are difficult to maintain and monitor. The department has a rotating repair and replacement program on gates. Beside the significant capital investment by the department on state land, the deterioration and damage beyond normal usage affects the state's management of the lands.

Upon inquiry, Wiggins stated a 75 year old Portland forestry consulting firm compiled the management report and a copy will be provided to the Committee. Upon further inquiry, Wiggins notified the Committee the pending notice to sue is the first 60-day notice on state timber lands.

Laurie Rule, Boise attorney for Advocates for the West, stated she is part of Advocates for the West and also represents them, the Idaho Conservation League, Selkirk Conservation Alliance, Defenders of Wildlife, and possibly the Alliance for the Wild Rockies. Their primary concern is the Priest Lake State Forest which is the area of concern in the notice. The concern is the 3 endangered species located in the Priest Lake State Forest. A map used by Rule to explain the area is attached to the minutes of the Committee. She noted the area of concern is quite productive, but is less than 10 percent of all the state endowment lands with more than 20 percent of the primary forest lands and 15 percent of the annual state timber harvest.

The main issue with grizzly bear is the density of roads. One of the grizzly bear management areas is within the Priest Lake State Forest. She stated roads allow increased human access into bear habitat and the majority of bear deaths are human caused. Studies have shown that bears will avoid roads and areas with high road density which displaces the bears from potential habitat. Rule stated there is a high density of roads in the area of concern and even closed roads are a problem. She stated an inventory of 36 gates in the grizzly bear area showed that 12 were actually closed and effective. The rest of the gates were open or being breached by motor vehicles. She stated an increase in harvest levels would result in additional roads which would impact grizzly bear habitat.

Upon inquiry from Chairman Noh regarding ATV situation, Rule stated if the roads and area could be closed to ATV there would be significant positive impact on the grizzly bear habitat. She noted currently there are not restrictions on ATVs. ATVs are able to breach the gates and berms used to block the roads.

In regard to woodland caribou, Rule stated they are considered the most endangered mammal in the United States. She stated there was one single small population in the Selkirk ecosystem. The concern for caribou is their early winter habitat, which is old growth, cedar/hemlock stands and old growth spruce/fir stands at 4,000 to 6,200 feet. She stated there is a good amount of caribou early winter habitat on the Priest Lake State Forest. Early winter habitat is important for caribou because of the dense canopies which intercept the early winter snow. This results in less snow buildup on the forest floor allowing the caribou to move easier and spend less energy obtaining their food source. In the late winter as the temperatures get colder and the snow gets compacted, the caribou then move up in elevation because they can walk on the snow. Another important aspect of the early winter habitat is the older trees provide a large quantity of lichen, which caribou subsist on throughout the winter. Rule further stated there was not much of this type of habitat left. She noted that the Fish and Wildlife Service has determined in the caribou recovery zone only 6 percent of the area is early winter habitat. Removal of any portion of the early winter habitat will be harmful to the caribou. She stated that even removing trees by thinning will remove the dense canopy and allow more snow and limit the lichen food source.

Senator Pearce inquired as to the number of woodland caribou now. Rule stated the population is between 30 to 40. Upon further inquiry, Rule stated that caribou is not a major prey for wolves, but mountain lions are a concern and some have been moved out of the area. Senator Pearce inquired as to the management necessary when two endangered species overlap an area. Rule stated inasmuch as there is a significant number of wolves, they could be trapped and moved to protect the caribou. Wolves are not as scares as the caribou.

Upon inquiry from Senator Schroeder, Rule stated historically caribou covered the southern half of Canada and the northern tier of the United States. Schroeder further inquired if the same species of caribou exists in Canada up into the Peace River area and that they are actually hunted in some parts of Canada. The population in the Selkirk is really the only population in the United States. Rule stated it was a different species, the mountain caribou. The woodland species is a separate species according to Rule. She further stated that some caribou were transplanted. The caribou range from northern Idaho to southern British Columbia. Some in British Columbia were trapped and brought down here to try and increase the numbers in the United States.

Senator Schroeder stated the caribou herd existed in British Columbia and the northern United States and there had been significant mortality in the Selkirk herd in the calves. With every calf born it was a mortality. He noted this is not the only population of caribou left. They are classified as endangered in the United States but not in Canada. Caribou exist north of the border and the Selkirk herd is maintaining due to migration. Schroeder further inquired if there was data verifying that caribou have actually been there in the early winter? Rule stated the Washington Department of Fish and Wildlife has some studies for the past 7 or 8 years and Idaho has also done some studies. The studies by Washington Fish and Wildlife show caribou have an extensive range and are using portions of the Priest Lake State Forest as well as a significant amount in British Columbia.

Senator Schroeder requested caribou data from the Idaho Fish and Game.

Rule then stated a number of streams on the Priest Lake State Forest support bull trout. High road densities degrade bull trout streams primarily from sediment. She also noted that high levels of logging also have an impact on bull trout. When the forest canopy is removed from the watershed, more precipitation hits the forest floor which causes sediment to move down slope which scours out the streams and removes the things needed by bull trout.

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

DATE: February 20, 2004
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS PRESENT: Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder, Williams, Brandt, Little, Stennett, Kennedy


Senator Burtenshaw excused.
The meeting was called to order by Chairman Noh at 1:45 p.m.
Chairman Noh thanked Page Angela Dreher for her assistance to the Committee and presented her with a letter of recommendation signed by members of the Committee. Dreher thanked the Committee and related the positive experience being a Senate Page has been. Her future plans, after a trip to France in the near future, will be majoring in business administration and political science at the University of Idaho. She stated would someday hope to be a Supreme Court justice.
RS 14136 Senator Keough explained RS 14136 is a concurrent resolution rejecting a pending rule of the Fish and Game Commission relating to commercial net fishing in Priest Lake. She stated the concerns of the majority of the community and noted that a community meeting will be held on Friday, February 28 to discuss the concerns.

Steve Barton, Department of Fish and Game, explained to the Committee the department and commission will draft a new pending rule taking into considerations the concerns of the community.

Motion by Senator Schroeder for unanimous consent to send RS 14136 to a privileged committee to print and to the floor with a do pass recommendation; seconded by Senator Williams. Motion carried.

H 521 Jake Howard, Idaho Outfitters and Guides Licensing Board, explained H 521 is to delete language in the Outfitters and Guides Licensing Act relating to when an applicant for a license must pay the application fee and relating to the residency of an outfitter or guide. Board rules and current practice require the application fee accompany the application. The Board does not differentiate between resident and non-resident outfitters or guides. The legislation increases the fee for outfitters for 2005 to $300 for online licensing and $350 for offline licensing; for 2006, $325 for online licensing and $375 for offline licensing; for 2007 it will be $350 for online licensing and $400 for offline licensing; for 2008 it will be $375 for online licensing and $425 for offline licensing; for 2009 it shall be $400 for online licensing and $450 for offline licensing; the license fee for a designated agent for 2005 will be $120 for online licensing and $140 for offline licensing; for 2006 will be $125 for online licensing and $150 for offline licensing; for 2007 it will be $130 for online licensing and $160 for offline licensing; for 2008 the fee will be $140 for online licensing and $160 for offline licensing; and for 2005 the license fee for guides shall be $95 for online licensing and $105 for offline licensing; for 2006 the fee shall be $95 for online licensing and $110 for offline licensing; for the 2007 license year it shall be $100 for online licensing and $115 for offline licensing; and for the 2008 license year it shall be $105 for online licensing and $115 for offline licensing. Beginning January 1, 2005, a penalty of $150 may be added to the outfitter's license fee for an application not completed by the end of the outfitter's license year. Beginning January 1, 2005, a $200 fee shall be charged for an amendment to an outfitter's license other than a minor amendment, and a $35 fee shall be charged for every minor amendment to an outfitter's license and a $20 fee shall be charged for every amendment to a designated agent and a guide's license. As of January 1, 2005, the one-time application fee for guides shall be $20. The increase fees may result in dedicated fund revenue to the Board of approximately $62,505 from FY 2004 to FY 2005 and approximately $6,240 from FY 2008 to FY 2009. The agency's total revenue will increase from approximately $405,295 in FY 2004 to $519,000 per year by FY 2009. This cease the depletion of the free fund balance which is decreasing at the rate of $25,000 to $50,000 per year.
Grant Simonds, Executive Director, Outfitters and Guides Association, stated through extensive negotiations the association supports the final proposed fee schedule as set forth in H 521.
Motion by Senator Schroeder to send H 521 to the floor with a do pass recommendation; seconded by Senator Little. Motion carried. Senator Cameron volunteered to sponsor the bill on the Senate floor.
Chairman Noh informed the Committee of Monday's Committee Meeting Agenda will include a review of INEEL and pit 9, new contracts, and pending litigation.
Chairman Noh informed the Committee of the status on the memorandum of agreement in regard to state wolf management plan. Upon discussion by the Committee, Chairman Noh noted an educational presentation to the Committee on the state wolf management and necessary documentation will be held at a later time.
There being no further matters to come before the Committee, the meeting was adjourned at 2:30 p.m.

DATE: February 23, 2004
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.

Chairman Noh introduced Emily Infanger of Salmon, who will be the Committee Page for the remainder of the legislative session.

S 1367 Senator Ingram stated Norm Semanko from the Idaho Water Association and Alan Winkle from the Boise City Canal Company are in attendance to provide information and guidance to the Committee.
Norm Semanko, Idaho Water Users Association, stated his and the association's appreciation for the efforts and consideration given to them by Chairman Noh and conveyed their best wishes for his retirement from the Senate.

Semanko then explained S 1367 would authorize repairs, improvements and maintenance by an irrigation delivery entity in the event a water users' association for laterals or if an association had not been established. He noted any individual water user could authorize the irrigation entity to perform repairs, improvements and maintenance. The work could only be performed if the irrigation entity has adopted a by-law or resolution authorizing the work. In order to perform the work, the irrigation entity would have the same rights and privileges for access to do the work as would the water user authorizing the work. He further noted that the irrigation entity would not assume ownership, responsibility or liability for any injury to person or property. The water user will be assessed annual costs, necessary repairs, improvements or maintenance in addition to the assessments levied for water delivery.

Motion by Senator Burtenshaw to send S 1367 to the floor with a do pass recommendation; seconded by Senator Schroeder. Motion carried.

Steve Allred, Director, Department of Environmental Quality, stated a major responsibility for DEQ is the oversight and regulations of INEEL. He introduced Kathleen Trever, Administrator of the Oversight Program, DEQ, noting she has offices here and in Idaho Falls to oversee the activities of the Department of Energy at INEEL. DEQ issues permits under the federal program for Resource Conservation Recovery Act which regulates the management of hazardous materials, as well as under the Clean Air Act for the regulation of emissions. Allred noted recent violations regarding a number of warnings over a year without correction by the management. The violations have been resolved and there will be payment to the state of Idaho. Allred stated the department's goal is not to make it difficult but to attempt to make things simpler.

He noted two pending lawsuits: one is whether or not the 1995 agreement required removal of buried transuranic materials. They contended they only had to remove the material stored in buildings and on pads, but there is a significant amount of material underground. DEQ filed suit in federal court and the court agreed with DEQ's interpretation, but the case has been appealed by the Department of Energy to the Ninth Circuit. Allred stated negotiations are underway to resolve the issues.

In the second pending litigation DEQ has filed as a friend of the court regarding the reclassification of high level waste. The court decision supported DEQ and used DEQ's brief as the basis for the decision. He noted this case has also been appealed to the Ninth Circuit.

Kathleen Trever, Administrator, INEEL, and policy advisor to Governor Kempthorne on Department of Energy issues, provided a handout to the Committee, a copy of which is attached to the original minutes of the Committee. Trever informed the Committee of her professional and educational background, noting she has been in her current position since February 1997 following her negotiating the 1995-96 settlement of the state litigation as a Deputy Attorney General.

She stated the cleanup at the Idaho National Laboratory is progressing with some remaining issues. In regard to spent nuclear fuel, the Department of Energy has moved all the spent nuclear fuel from the aging pool basins at several reactor facilities into dry storage or into a new state-of-art facility at INEEL. The new facility has leak detection and several monitoring systems so there is greater confidence in the operation. She further noted under the court settlement, all of the fuel in Idaho will be stored in dry storage pending shipment to a repository.

In regard to high level waste, there are 11 tanks at the tank farm at INEEL which contain approximately 1 million gallons of waste. She noted there has been considerable progress for protecting the worst tanks against seismic activity. The tanks have been emptied and cleaned to within 1200 gallons of lightly contaminated material. She noted there are closure plans in place for two of the tanks because they contain chemicals and radioactive materials.

In connection with transuranic waste which is contaminated with plutonium, DOE has shipped 15,000 barrels out of Idaho with quite a bit left to be shipped and is awaiting certification from WHIP. She stated those shipments are to begin on a daily or weekly basis this summer.

Other cleanup activities relate to an incinerator which has been closed under DEQ regulation. She stated the closure appears to be complete with final monitoring required. INEEL has also been consolidating contaminated soils located at various sites into a new lined landfill with a detection system along with taking down the buildings no longer in use. All of the waste treatment removal effort comes with the benefit of reducing the risks to the aquifer and public health. The court settlement focused on the types of waste that the nation determined should be deposited in a repository deep under ground. This would include the high level waste, spent nuclear fuel and transuranic waste. How to deal with the other contaminates is to be determined.

Trever stated the maps on the reverse of the handout show the monitoring network of the oversight program. This measures radioactive materials in the air and radiation in ground water samples from the site and across the Magic Valley. Results from off site indicate that there is no noticeable impact from INEEL activities, but on site there are some ground water contamination pools which have been known historically. These came from operations where INEEL used to inject into the aquifer. These ground water pools are the subject of ongoing cleanup discussions. The ultimate goal is make sure that the aquifer is healthy for the long term and DEQ expects cleanup operations to those areas. The enforcement action against the INEEL laboratory has been closed. DEQ will continue to provide independent oversight of the site.

In regard to shipment in and out of INEEL, several thousand barrels of transuranic waste have left Idaho as part of the court settlement. There is an allowance for DOE to continue to send shipments of spent nuclear fuel in a limited annual quantity, as long as DOE is meeting the requirements of the settlement. Last year DOE shipped two rail cars of spent nuclear fuel and eight truck containers of spent nuclear fuel and the Department of the Navy sent in ten rail containers from the nation's nuclear fleet.

New contracts for cleanup and laboratory operations will be governed by a draft proposal by DOE for operation of Idaho National Laboratory. She noted the name change will be effective in October 2004. There will be a contract for laboratory operations and a second contract for cleanup operations. The cleanup operations contract is scheduled to last thru 2012 while the laboratory is on a five year term with a five year renewal. The state will submit comments by March 3 on the proposal. One issue is the terms of the laboratory contract which the state feels should be for longer than five years. Another issue assurance that the cleanup and the laboratory contracts are integrated in order to build on one another. The purpose is to assure that the infrastructure of the two contracts fit together for the maximum benefit of the site.

A main issue at this time is tank classification where DEQ is a friend of the court in a case brought by the Natural Resources Defense Council, the Snake River Alliance, and the Shoshone-Bannock Tribes challenging DOE's classification of waste. As a result of the court decision, DOE is unwilling with legal certainty how to define waste to move forward with some of the activities for tanks located in Idaho. DOE has proposed legislative language in Congress to allow them to reclassify the waste as something other than high level waste. This has caused the state concern. DOE's position is that they are in charge of making the determination. She noted there have been some progress with the negotiations through Idaho's congressional delegation along with other states for a rational classification process which protects the Idaho environment.

In regard to the repositories, Nevada has filed six different lawsuits against DOE challenging the construction of the facilities at Yucca Mountain. There is uncertainty when and how the Yucca Mountain repository will begin operations. This is the repository where the spent nuclear fuel and high level waste in Idaho will be sent. In the meantime, the state will make sure that the materials are managed safely in Idaho and are ready to be moved to the repository when it opens.

With the waste isolation pilot plant in New Mexico where the plutonium is scheduled to be placed, New Mexico has taken issue with some of the materials that DOE proposes to send to New Mexico. There is uncertainty in the timing and ability of DOE to manage all of the waste in Idaho.

Trever stated in regard to Pit 9, retrieval efforts are progressing. She provided to the committee pictures of a graphite mold used to form the plutonium to make nuclear weapons. Pit 9 and other areas of the land fill at INEEL received shipments from the Rocky Flats in Colorado from 1950's to 1970's. Another picture depicted remnants of steel barrels twenty years later. Upon inquiry, Trever stated Pit 9 has a long and historic history in that it is one of several pits that received waste from the Rocky Flats plant. In 1991, DOE, EPA and DEQ began cleanup of the pits. DOE contracted with a company that ultimately became a subsidiary of Lockheed at the same time they were contracting with another subsidiary to run the whole facility. In the cleanup of Pit 9, there was $300 million spent on buildings and equipment with Lockheed not excavating any dirt. This resulted in a contract controversy with DOE. There was hundreds of millions of dollars invested without progress. The two subsidiaries are in federal court against each other with an expected court ruling later this year. While that has been going on, the project was scaled back to a smaller area and move ahead with excavation. Trever noted that although the costs were high and it involves 450 barrels of contaminated soil, waste and dirt. The estimated cost was $80 million. From a technology perspective, there is a better understanding of what waste looks like after a couple of decades and hence can apply the knowledge to other areas of the landfill.

Upon inquiry, Trever stated the new system was a collaboration with the Environmental Protection Agency, State of Idaho, Department of Environmental Quality and the Department of Energy. She noted it was often the state and federal regulators who found ways to do the project simpler. Those efforts to reduce costs and simplify the process are still undergoing negotiations. She stated that some of the subsurface disposal area contains higher concentrations of plutonium contaminated waste and need further disposal considerations. Upon inquiry, she noted part of the reason the operations were expensive are attributable to the remoteness of the area and the necessity of operating outside the building. The type of operations used now are mining approaches with excavation in greater quantities, but still within safety considerations. Upon further inquiry, Trever noted the state has attempted to promote a sensible approach throughout the process and the information received to date indicates simpler methods may be used.

Allred informed the Committee that part of the problem at INEEL has been worker safety and any potential contamination to the environment. DEQ has been urging DOE to adopt methods that do not contain double containment and remote handling as well as the methods typically used there. Pit 9 is an example of success within a week or two. With equipment more typical to mining operations with human operators rather than remote operations, much larger quantities can be moved and removed. He anticipates being able to start this year. He further stated that good progress has been made on Pit 9.

Upon inquiry from Senator Williams, Allred replied the building belongs to Lockheed and they will not allow anyone else to use it. Trever noted what happens to the building is part of the contractual dispute. Allred noted there are a lot of old buildings on the site that were never used.

Senator Burtenshaw inquired about the status of melting down the contaminated waste for block storage. Trever replied there was a project for liquid waste with a facility which converted it into a granular form. A thermal treatment process was used to convert the liquids to solid materials. The facility was built before DOE was required to comply with state and federal air quality regulations. DOE has chosen not to upgrade the facility so that is in a closure mode. DOE still has to find a way to solidify the remaining liquid waste and is considering newer technology for that process. Burtenshaw further inquired if the spent fuel could be reused. Trever stated the national policy is against the recycling of spent nuclear fuel for extracting the uranium. She further stated it has become an issue of economics and there has been no commercial enterprise wanting to begin recycling because uranium could be obtained from other sources. There are concerns whether in recycling other materials could be produced, causing safety concerns. She noted there is some recycling for a certain type of fuel, but the matter is really an issue of national policy and economics rather than the technical ability to extract a material. Upon further inquiry, Trever stated other nations rely on nuclear power for their energy supply. Different nations have taken different approaches on how they deal with the nuclear waste. France and Great Britain have relied heavily on a recycling process which results in smaller, more concentrated amounts of waste. In the United States, the current national policy is to run it through the reactor once and then prepare it for disposal at a repository. The national policy is being re-evaluated from a natural resource prospective and making the best use of repository.

Upon further inquiry from Senator Burtenshaw, Allred stated if Yucca Mountain is not opened then the issue of safe storage of the fuel rods will still be a concern. Idaho will then continue to provide oversight for a long time. Allred noted the President and Congress already had the opportunity to say no to Yucca Mountain. He expects any challenge regarding Yucca Mountain will address the adequacy of design or upgrades of the design. He noted the design for Yucca Mountain is conservative in regards to the number of useful years and designs for retrieval if there is a problem with the repository or if there were economic issues.

Senator Kennedy inquired as to the amount of volume of nuclear waste coming into Idaho. Trever stated in relation to national spent nuclear waste, Idaho is receiving only a small amount of material. In 1995, Idaho had 250 mega tons of heavily metal. The amount coming into Idaho each year since 2000 is approximately 1 metric ton or less a year. The amount of spent nuclear fuel is small compared to the national inventory amount. Allred noted the shipping casts are large and very well shielded. They are designed with an inside rack containing a few fuel rods. The interior of the big thick shielded container has a few spent fuel rods inside. The rods are removed from the shipping container and put into the swimming pools and shielded underwater. Eventually this will be converted and put into dry storage which uses large air-cooled containers.

Senator Stennett inquired about calcine testing. Allred stated in the mid 80's Idaho took over the program. He noted a group disagreed with the operation and alleged that the state has not handled its responsibilities and has not required certain facilities to be permitted. Facilities were brought into the program and given a part A permit, which was a matter of submitting certain information. Those facilities that were going to continue operation then had to obtain a part B permit, which was an operating permit. Those facilities that were not going to continue to operate were given interim status. A group petitioned EPA to withdraw Idaho's status to run the program because they alleged that Idaho had not implemented the program according to law. Allred stated after a number of investigations by EPA and EPA's Inspector General, the Inspector General found Idaho's implementation and operation of the program was according to the law. The Inspector General found no reason why the program should be withdrawn from Idaho. There were some comments by the Inspector General which will be implemented, but some of the comments concerned Idaho's enforcement discretion and the way the federal government thought it should be used. Allred noted one of the advantages of having primacy on the programs, is that Idaho has enforcement discretion. He further noted Idaho's program is good and keeps a close eye on what happens at the site.

Stennett further inquired about security. Trever informed the Committee of an active security force at the site which is tested periodically. There are a variety of safeguards and management safeguards to ascertain the material is responsibly secure. In regard to employees taking materials, Trever noted one person was taking samples with small amounts of radioactivity or chemicals home. The person was prosecuted. As a result, DOE, the Inspector General, Idaho Attorney General, and Department of Justice reviewed the sampling and management control system. Changes were put into effect to assure that small quantities could not be removed from the site as well. Trever noted there are quantities of radio active materials used in commercial enterprises which are overseen by the National Nuclear Regulatory Commission. All national state and enforcement agencies are finding ways to assure those materials are properly managed from the manufacturer to disposal. She stated the DOE and Department of Defense are continually assessing and reevaluating security. Upon further inquiry, Trever noted the number of security personnel fluctuates depending on what is happening on site. The upcoming contract will contain provisions determining management of the security force. Trever further noted one project came to the site a facility involving radioactivity materials from Ohio because of better security.

Senator Stennett inquired about Pit 9 and the status of the 88 acres. Allred stated that people should not be walking across the area, but people could without ill effects. He noted Pit 9 is providing significant information concerning the retrieval processes.

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

DATE: February 25, 2004
TIME: 1:30 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 1:40 p.m.
Gubernatorial Appointment Will Judge Jake Howard, Outfitters and Guides Licensing Board, introduced Will Judge of St. Maries, the gubernatorial appointee to the Board. Board members: Scott Farr of Challis, Bill Bernt of Salmon, and Shelly Fisher, IOGLB staff, were also introduced.

Will Judge informed the Committee of his professional background and his experiences on the Board this past term. He and his wife own and operate St. Joe Outfitters and Guides, a background country lodge on the Upper St. Joe River accessible only by horseback into the Wild and Scenic Area. He noted the many issues handled by the Board and dealing with many federal and state agencies, rules and regulations. As an individual outfitter, he is concerned about the Endangered Species Act and the consequences from that act.

Senator Keough introduced Marc Brinkmeyer of Laclede, the gubernatorial appointee to the Lake Pend Oreille Basin Commission.

Marc Brinkmeyer informed the Committee of his professional and personal background, noting he has been a resident of the Sandpoint area for over 20 years. His resume' is attached to the original minutes of the Committee. He noted the issues involving the lake are controversial and the commission is hopeful to facilitate and negotiate for the best interests of the lake and the surrounding communities.

Representative Eskridge urged the Committee's approval of the gubernatorial appointment of Brinkmeyer.

Dale Swensen, Executive Director, Madison-Fremont Irrigation District, informed the Committee of the status of Henry's Fork Watershed Council. A handout provided by Swensen is attached to the original minutes of the meeting. Swensen introduced Steve Trafton and Sheryl Hill of the Henry's Fork Watershed Council.

Swensen briefed the Committee on the background and history of the Henry's Fork Watershed Council. He noted in 1992 the Legislature passed the Henry's Fork Basin Plan to address the management of the river for irrigation and water resource development. He noted this coincided with the sixth year of drought. During this same time frame, during work on the Marysville Canal for a hydroelectric plant a significant amount of sediment went into the Fall River, added to management concerns and conflict. In September 1992 approximately 50,000 tons of sediment were released into the Henry's Fork downstream from Island Park Dam. As a result of the ongoing conflicts, meetings were held throughout 1993 and the Henry's Fork Watershed Council was formed. He noted the Henry's Fork Foundation and the Fremont-Madison Irrigation District are co-facilitators of the council. $20,000 initial funding was provided through the Bureau of Reclamation with an additional $150,000 from a settlement in regard to the sediment spill. These funds have been used by the council over the past ten years for the various projects with a current balance of approximately $30,000.

In 1994 the council developed the Watershed Integrity Review and Evaluation process which is the basis for evaluating projects proposed for endorsement and/or funding. Since that time the council has reviewed 41 projects proposed by 80 different sponsors. Twenty-five of these projects have been funded. The projects involved restoration, research and monitoring and education programs. He noted the council has held many educational and informational meetings in relation to water law and management.

Through its role as a watershed advisory group several programs of note are the upper Henry's subbasin assessment, review of TMDL for scientific basis regarding Henry's Lake and the Henry's Fork from Island Park to Riverside. They have also provided the scientific basis for adding Sheridan Creek to the list of water quality limited stream segments in Idaho. The council/advisory group provided formal public comments on the state's 1998 draft list of water quality limited streams and proposed changes to state water quality standards. Another benefit from the establishment of the council and watershed advisory group is the establishment of a cohesive community with common goals and an understanding of individual concerns.

Steve Trafton, Executive Director, Henry's Fork Foundation, stated the foundation began in 1984 over concerns by anglers and trout fisherman. There are currently over 2,000 members world wide. He noted the Henry's Fork is the world's most famous trout stream. He further noted the history of the Henry's Fork Watershed Council that is set forth in the handout attached to the minutes of the Committee.

Upon inquiry from Senator Burtenshaw, Swensen stated the Shoshone Bannock Tribes went to the Forest Service in regard to a fish hatchery. He noted the Tribes had been approached by a private individual about the construction of a fish hatchery for commercial gain. The Forest Service approached the Watershed Council for the initial scoping for the proposed project. In processing the proposal, the council found problems with the project, were not comfortable with the Tribe being used in this manner, and the significant impact restoring the fishery would have on water resources in the area.

Upon further inquiry, Trafton stated one reason for the Sheridan Creek project was because of rainbow trout making their way to irrigation ditches. The project fixed the various diversions, putting the stream back into historic channel and providing fish passage around the diversions so that fish from Island Park Reservoir would stay in the creek. Upon further inquiry, Trafton stated he understood the new owner is very interested in restoring the fishery on the creek. He noted there has been a significant amount of resources devoted to Sheridan Creek to date.

Dr. Jim Unsworth, Department of Fish and Game, presented a handout to the Committee (a copy of which is attached to the original minutes of the Committee). Unsworth gave a background report of the wildlife research laboratory which was established in 1972 to analyze methods for research and management regarding wildlife. He noted the direction of the lab changed in 1991 when the legislature established the cooperative research program with the Caine Center and the Department of Agriculture. At that time, the University of Idaho and the Department of Fish and Game negotiated the use of abandoned university facilities near the Caine Center. In 1992 the department signed a 99 year lease for the site for $1. After refurbishing the facilities and since that time the animal holding facilities have been expanded to 18 acres to accommodate large ungulates. He noted that in 1998 facilities were constructed to handle elk and bison. Facilities were added for bighorn sheep and deer.

Unsworth stated the primary functions of the lab are field assistance, diagnostic services, genetic services and research. He explained field assistance involves requested projects regarding animal health or capture and transporting. The lab provides capture methodology, chemical immobilization, biological sampling and necropsy. It provides diagnostic services for all species of wildlife in the state. A data base is maintained of all samples, necropsy and live animal samples received since 1998. He noted the lab is in the process of completing a database providing an overview of the scope and extent of disease for wildlife in the state. An extensive serum bank has been accumulated over the past 10 years.

Unsworth noted a genetics specialist is on staff for species and sex determination, along with genetic sequencing for population enumeration and estimation. He further noted captive animals and the research facilities are available to department personnel and collaborating scientists, but the committee at the University of Idaho must approve all projects, as well as follow the lab's policies and procedures.

In regard to West Nile virus, Unsworth stated this is an area where the lab could participate in relation to sage grouse. He noted some other areas where the lab might shift their research efforts would require the disposition of the animals. The Big Horn sheep have been moved to Colorado to the USDA Research facility for a cooperative research project. The bison will be moved to the Colorado facilities in the spring. He noted the bison are in the last phase of research and the research on the elk has been completed. The elk are now being butchered and sold.

In connection with cooperative efforts with the Department of Agriculture, Unsworth stated over the past 2 years the Department of Agriculture and the lab have discussed the possibility of combining facilities, along with the University of Idaho. This has not progressed beyond the discussion stage. There would be some efficiencies and the elimination of duplicate equipment. Currently the lab uses the Caine Center for incineration. The Department of Agriculture processes all blood and tissue samples. He noted the overlap with other state programs.

Unsworth informed the Committee that the lab works closely with the Department of Health in regard to the West Nile virus by sampling and education. He noted crows and ravens are some of the first birds to carry the virus. Samples are examined by the lab. Any disease that could transmit from wild life to humans is a concern, as well as any possible transmittal to livestock from wild life.

Upon inquiry, Unsworth noted the list provided to the committee is significant and includes not only things done at the Caine Center and the lab but things that are done between the field and those programs. He stated they would like to emphasize the synthesis of the information directly to field programs and how the information impacts management decisions. The lab will still be cooperating on basic research. Eighty percent of the funds provided to the Caine Center is for basic bacteriology research. He does not anticipate that will change.

Upon inquiry from Senator Stennett, Unsworth stated that chronic wasting disease has not been discovered in antelope. Upon further inquiry, Unsworth stated the Rainey Creek (south fork of the Snake River) elk tested positive for brucellosis and are most likely to transmit the disease when they are pregnant. Processing plants are reluctant to take the elk from a human safety standpoint. In relation to the big horn sheep, 2 rams are being euthanized because there was no research interest in them.

Upon inquiry from Senator Little, Unsworth stated the costs for DNA testing is $20 a sample and is done at the lab for some species. Dr. Karen Rudolph does the DNA work for the lab. The processing time is a few days. The lab has the capability to do DNA for deer, elk, all the big game animals to identify by sex and species.

Upon further inquiry, Unsworth stated the lab is interested in remaining at the present facilities because there is no rent and the only expense is the utilities. The holding pens are in good shape and the lab will always need the ability to house animals temporarily. He noted there is always the possibility of live animal research when funding is available. The lab would be interested in changing facilities if they were better and more economical. Senator Little expressed concern about urbanization around the lab.

Dr. Mark Drew, wildlife veterinarian for the Department of Agriculture and the Department of Fish and Game, informed the Committee there has been a number of brucellosis research projects and some using the vaccine. 100 elk calves were involved in a strain 19 vaccine trial, which is the same vaccine being used in Wyoming feed grounds. The results indicate the vaccine is about 25 percent effective. Results in adult elk were not a successful option, but could be of some benefit. He noted that elk react differently than cows to the vaccine. Drew stated there are only two USDA accepted vaccines available for brucellosis for use in wild animals. He noted other vaccines are being developed at other research facilities. The lab does not have the facilities or equipment for this type of development. The lab has participated in testing of vaccines for other facilities. He noted there is a group which has been working for more than 10 years in regard to the Yellowstone bison and elk brucellosis problem. This is a cooperative effort by many federal, state and tribal entities to address the issue for a solution to the brucellosis problem.

Chairman Noh welcomed the new Dean of the College of Agriculture, Dr. Hamer, who was in attendance.

MINUTES: Motion by Senator Burtenshaw to approve the minutes of January 30, 2004; seconded by Senator Brandt; motion carried.

Motion by Senator Cameron to approve the minutes of January 28, 2004; seconded by Senator Williams; motion carried.

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

DATE: February 27, 2004
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS PRESENT: Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder, Brandt, Little, Stennett, Kennedy
MEMBERS EXCUSED: Senator Burtenshaw and Senator Williams excused.
The meeting was called to order by Chairman Noh at 1:40 p.m.
Gubernatorial Appointment

Judi Danielson

Judi Danielson, Chairman, Northwest Power and Conservation Council, the gubernatorial appointee for reappointment to the Council, appeared before the Committee. She noted the issue before the council is the summer spill in July and August. The council has suggested that the summer spill be evaluated for possible reduction. The Corps of Engineers is concerned about mortality because of too much nitrogen as a result of large spills at some of the hydro projects. She noted there is over $2 million worth of offsets for the net zero loss of fish. There are not many fish in the river in July and August. She noted only 20 to 30 of the ESA listed fish return at that time of the year. That does not include the unlisted stock, such as from the Hanford Reach, which are estimated at 10,000 to 15,000 fish. A meeting is scheduled on April 6 for a decision. She noted a number of litigated issues, generally relating to the listed stocks.

The subbasin planning is set to have all the plans submitted by May 28. She stated this was the biggest planning process in the United States with the first subbasin plan submitted from the Clearwater area in Idaho. The Kootenai plan will be submitted in mid-March to the independent science review panel. There is a total of 58 plans to be considered in May. Danielson noted the Portland staff and state staffs have been scheduled to work through all holidays without vacations through the summer so the plans can be ready for amendment. The public review process will be then undertaken. She is hopeful of having the project done by December 2004.

Danielson noted the power plan is also underway and is headed by Jim Kempton, Idaho's other representation on the council. Danielson is the elected chairman of the council again this year. She acknowledged the good work and efforts by Kempton in furthering the power plan. Upon inquiry, Danielson stated Kempton is responsible for Idaho's power interest and she handles fish and wildlife resources.

Upon inquiry from Senator Stennett, Danielson responded she felt the council had progressed further than ever before. The council is now more aggressive in fulfilling the responsibilities of the Power Act. The financial issues with Bonneville have taken a lot of the council's time.

Upon further inquiry from Senator Stennett, she stated some of the first and very innovative water basin plans were from the Lemhi Basin.

Danielson explained the fish and wildlife program is funded at $139 million less $12 million for Bonneville's expenses for administration. Also funding for the scientific review panel through the Gorton Amendment is taken out of the fish and wildlife program. There is approximately $114 million remaining which the council administers through the Act. The projects are submitted to the council and then forwarded to the scientific review panel followed by the public review and recommendations to Bonneville. If Bonneville does not fund them, there is a process under the Act which Bonneville must complete. Generally Bonneville takes the advice of the council.

Motion by Senator Brandt to recommend the appointment of Will Judge to the Outfitters and Guides Board be confirmed by the Senate; seconded by Senator Pearce; motion carried.

Motion by Senator Little to recommend the appointment of Marc Brinkmeyer to the Lake Pend Oreille Basin Commission be confirmed by the Senate; seconded by Senator Brandt; motion carried.

S 1380 Senator Stennett explained S 1380 is legislation which extends the statute of limitation to 5 years for prosecution of certain fish and game misdemeanor offenses. He noted the investigation on an alleged offense often exceeds the current two year time limitation. The change to five years would allow additional time for investigation.

Senator Little inquired if there were other misdemeanors with the 5 year statute of limitation. Steve Barton, Department of Fish and Game, informed the committee that some medical statutes have the 5 year time frame.

Fred Christensen, President, Citizens Against Poaching, provided a handout to the committee on S 1380, noting the information from other states regarding fish and game misdemeanor statute of limitation.

Motion by Senator Stennett to send S 1380 to the floor with a do pass recommendation; seconded by Senator Kennedy. Voice vote. Chairman Noh asked for a roll call vote:

Ayes: Kennedy, Stennett, Noh

Nays: Brandt, Cameron, Little, Pearce, Schroeder

Absent: Burtenshaw, Williams

Motion failed.

Karl Dreher, Director, Department of Water Resources informed the Committee of the director's order issued February 25, 2004, in relation to Rangen's call for water from junior groundwater users. A copy of the order is attached to the original minutes of the meeting. There are some 1300 water rights held by approximately 750 water right holders, including cities, dairies and farmers but exempting homeowners who are irrigating no more than ½ acre of land. Dreher stated he was only free to talk about the order because there has not been a petition filed contesting the case. Dreher noted that if he makes any statements which are inconsistent with what is written in the order, the order prevails. He further noted that there were attorneys present representing clients involved in the issue.

Dreher stated the order is lengthy because it is written to provide as full a background as the department can provide. The issue is contentious and some or all of the issues will be litigated. The order explains the department's use of the model to simulate the affects between ground and surface water that are reliant on the source. The Eastern Snake Plain Aquifer is a unique source and comprised of large complexes of jointed basalt with a high hydrological activity and a large amount of water in storage. He noted the estimates vary but there are 10s of millions of acre feet of ground water potentially in storage in the aquifer. East to west in the aquifer the depth decreases and water exits at the Thousand Springs reach. He stated the springs would not discharge if the aquifer was empty, but the spring discharges are very sensitive to fluctuations in ground water levels. Because of the 4 years of drought, ground water levels which have been stable since 1980 have now declined by approximately 30 feet in the area of Gooding. Some areas are more and some are less. He stated 30 feet is not significant in terms the saturated depth of the aquifer, but the variation does impacts the discharge at the springs. On top of the affects of the drought are affects which have occurred and still occurring because of changes in surface water irrigation systems as well as the development of large ground water rights. Those depletions have a potential for injury to water rights. He noted because ground water cannot be seen and it can only be measured indirectly, the ground water model must be used to simulate what is happening. Dreher stated there is no other way to measure or quantify the impacts and relationship between ground water diversions and surface water diversions. He noted the department has tried over the last couple of years to equip certain wells with power meters which record when a well goes on and off. Additionally, several springs have been outfitted with real time recorders and the department has attempted to see if there is a meaningful correlation between when certain wells close to the rim turn on and what happens to spring discharge immediately below. The department has been unable to determine a correlation even though it has been regarded by many as being in existence. At this point, the department is left with the information from the model. The springs do not discharge at a constant rate because of interrelated factors and the affects of which cannot be separated at this time. The application of surface water for irrigation on lands above the springs has an impact and does affect the pattern of the spring discharge. The surface water irrigation was established in the late 1800's and has existed for many decades. The pattern of variation of spring discharge has existed for a significant period of time and existed at the time that most of the water rights for fisheries facilities were appropriated begin in the 1960's.

Because of the drought in 2001, the director was required to make the determination that diversion and use of ground water under relatively junior priority water rights was causing injury to surface water rights of more senior priority water rights in the Thousand Springs area. The director determined under the law what was necessary to begin implementation of conjunctive administration on the Eastern Snake Plain aquifer and connected sources. Dreher noted the Snake River is hydrologically connected to the aquifer in four locations: from Lewisville to the Idaho Falls area; from Shelley to Blackfoot to Neeley; from Neeley to below Minidoka; and from Milner to King Hill, which contains the Thousand Springs area. In 2001 because of the affects of several years of drought, the department designated two ground water management areas: Thousand Springs Ground Water Management Area and American Falls Ground Water Management Area. The intent was to issue notices of curtailment to water rights junior in priority to 1967 beginning the next irrigation season. Subsequently negotiations were begun between surface water users and the ground water users which resulted in a stipulated agreement. The agreement provided that the ground water users would supply an amount of replacement water in exchange for not having the senior priority of the surface rights exercised against them. There was an agreement to reduce the overall ground water use. The amount of the surface water that was provided pursuant to the agreement was based on use of the department's then existing ground water model. At that time, the department did not have a means by which to segregate depletions caused by ground water based on priority date of the right. As an interim measure, the department used criteria to review the ground water rights junior in priority to 1967 that were located such that 50 percent of the depletion from those rights was expressed in the form of diminished reach gains or spring discharges within six months. The criteria were developed in anticipation of litigation from the ground water users claiming that there was not a significant affect from their use of ground water. The criteria was devised with the premise that a court might find the criteria reasonable.

Dreher stated there was concern at the time that the reliability of the existing ground water model was unknown. The reason it was not known even though it was calibrated but it was calibrated for one year, 1980. Models like this have numerous assumptions that are made in them all of which were undocumented. An undocumented model would be very difficult to defend in litigation. At that time, the director initiated efforts to reformulate and recalibrate the ground water model in a collaborative method between the Department of Water Resources, University of Idaho, Bureau of Reclamation and the US Geological Survey. For the past 3 years, the collaborating group has been working to reformulate and recalibrate the ground water model and quantify the likely uncertainty associated with it with detailed documentation. The new ground water model is essentially completed and is calibrated over a period of 22 years through a computerized method. The model has a much finer grid which will allow the department to divide the 4 reaches of the river into subreaches and begin to refine what the model is able to determine. Dreher noted the information from the new model indicates the old model's results are closer than anticipated. Regardless, the new model was needed because of the documented information and quantification of the reliability. Additionally, the finer grid allows the department to subdivide the reaches for better decisions. He noted the department is satisfied with the results except with the Thousand Springs reach. Dreher noted it was difficult to a use this type of model to simulate the kind of flow which occurs through the fractured basalt at the springs. That kind of discharge does not follow the normal rules associated with the movement of ground water through an aquifer system. The department has undertaken adjusting the calibration to improve the predictions by the model for the Thousand Springs area. Dreher stated the department developed a tool which allows for the segregation of ground water use and depletions based upon priority date.

Dreher informed the Committee an order was issued last year dissolving the Thousand Springs Ground Water Management Area and reducing the size of the American Falls Ground Water Management Area. This was done to avoid conflicting requirements regarding the administration of ground water rights. Dreher stated, as a result of the stipulated agreements, there was another agreement to support the state in seeking authority from the SRBA court to initiate interim administration of water rights that had been partially decreed. This was supported by both surface and ground water users and the authority was granted by the court. Two new water districts were created as a result: Water District 120, which is in the American Falls area, and Water District 130, which is in the Thousand Springs area.

The statues pertaining to the administration of water rights provide that curtailing junior priority uses in a water district can be accomplished quickly once it is determined that injury is occurring, curtailment is necessary and any mitigation does not offset any injury. In a ground water management area, the statute requires any curtailment must be noticed prior to September 1 of the year preceding when the curtailment is to occur. By abolishing the Thousand Springs ground water management area and reducing the size of the American Falls area, all of the ground water rights in 130 were no longer in a ground water management area. All the ground water rights in 120 were also not in a ground water management area. The action was not taken because the springs had improved but because the springs had not improved and have continued to decline.

In further describing the order, Dreher stated the conjunctive rules were adopted and passed into law in 1995 before he became director. The rules were properly promulgated; the Legislature has never rejected, amended or modified the rules so the rules are final. The rules have been applied to the delivery call made by Rangen, Clear Lakes and other fish producing entities.

In relation to the Rangen call, there are 3 rights: 1957, 1962 and 1977. The 1977 water right does not apply to the call because there is no information in the department's files that water was ever diverted and applied for beneficial use. The 1977 water right, licensed by the department, was based on an estimate of the spring discharge made by the water master of district 36A five years before the application. Dreher has determined that water right was inappropriate and the department erred in issuing that license. The licensed amount is supposed to be the amount that has been actually diverted and applied to beneficial use and there is no evidence it ever was. Because a license had been issued for the right, the department made a recommendation in the SRBA to decree the right based upon the license. There is a decree for the 1977 water right and the department has no legal authority to overlook the court decree. Dreher further stated that according to common law of prior appropriation, the department does not believe Rangen has the right to call for curtailment of junior priority ground water use that has actually been diverted and applied to beneficial use when water was never available to Rangen and applied to beneficial use.

Dreher then explained to the Committee the sketch appearing on page 10 of the order depicting the Rangen facilities. One diversion is the Curran Tunnel which is water from the Curran spring and is diverted by Rangen and 2 senior priority irrigation water rights dated in the 1800s. The total amount of water available to Rangen is the sum of the water discharged from CTR raceways plus the water that flows over the check dam above the CTR raceways. He noted that is water which has been diverted through the facilities and was returned to Billingsley Creek or was available but not diverted. The first of Rangen's water rights has been continuously satisfied. The second water right has not received the entitled supply of water since 1987. The order further sets out a comparison chart of the maximum daily flow and the average daily flow for the years 1987 and 2003. 1987 is the last time that the second water right was satisfied during a period in November. The chart shows the significant diminishing of the discharges.

Dreher stated when there are complex factors resulting in the diminished discharge coupled with the depletion by junior priority ground water rights injury definitely occurs. The maximum injury to the second priority water right is determined by comparing and determining the quantity of water diverted in 1987 versus 2003. The administration of ground water rights is new in Idaho and evaluations have not been made before. The director is required to determine that means of diversion are reasonable. Rangen has made reasonable efforts. Dreher noted it is also necessary to determine whether there are reasonable alternatives for obtaining and diverting water. The department had no basis to determine that there were alternative means at this time. Based upon the diminished water available and other factors, it was determined that material injury was occurring. The existing ground water model was used to segregate depletions from ground water rights based on priority date. The model was used to simulate the total curtailment of ground water rights junior in priority to July 13, 1962, in water districts 130 and 120. The results indicated that junior ground water diversions in the 120 American Falls area do not cause significant depletions. The model results curtailing ground water use in water district 130 indicated that if junior ground water rights were fully curtailed then at the end of 1 year a total volume of additional water would be discharged throughout the Thousand Springs area. This was the basis for determining what could be expected from ground water curtailment and what could be done to replace ground water curtailment. Dreher further stated if the curtailment lasts 2 years or more the amount of additional water will increase each year until a new steady state is reached in the aquifer system.

Dreher stated because of the interest in how the calculations were determined, the department has scheduled a status conference pursuant to another contested case which is pending before the department. At that time the department will explain how the modeling is done. The status conference will be held March 5 at the offices of the department. The purpose of the status conference is to provide a forum for the department to present the methodology and the results used to calculate the numbers. This will enable the information to be provided to interested parties as quickly as possible.

Dreher stated the order instructs the water master for 130 to issue written notices within 5 days of the order to holders of consumptive ground water rights that are junior in priority of July 13, 1962, including rights for agricultural, commercial, industrial, municipal and other uses. The notice is to inform them of the issuance of the order and they are prohibited from diverting ground water or continue diverting water beginning April 1. The notices were issued February 26 by the water master.

In order for the curtailment not to go forward, Dreher stated the holder of the senior priority right is entitled to divert a quantity of water from the source under its priority date. One way that this can be mitigated is if the ground water right holders deliver an amount of water to Rangen equal to the injury. Dreher further noted in this action, the right is a fish production right which relies on a certain level of water quality so not just any water will do. If the ground water right holders elect to replace the water, the water has to be of a quantity and quality sufficient for the purposes of raising fish. Additionally, the water has to be delivered at a location and at a time that the water is usable by the senior water right holder. He noted this would be difficult to do, but is an option the junior ground water

right holders have. Dreher further stated the order gives notice of another pending order that may cause this order to be inadequate to avoid curtailment of some portion of consumptive ground water rights. He noted a whole series of calls have been made since Rangen's and one call was made prior to Rangen's.

Dreher further stated another option would be for the junior ground water users to supply to the reach an amount of water equal to what the reach would receive if curtailment was made. Delivery to the reach is necessary because the existing ground water model and the new ground water model cannot be used to accurately calculate the affects from junior ground water diversion and use on a particular spring. The only calculation of the affects of curtailment that can be predicted is to the reach. If junior ground water rights are curtailed, pursuant to this order, the department does not know how much will be of benefit to Rangen. He further noted the department does not know how much of replacement water which may be provided would go to Rangen and how much to other facilities. He stated there is no way to estimate that information. Dreher stated this is the best that can be done at this time. The deadline for submission of a replacement water plan is April 1 and until the plan has been approved the junior ground water right holders cannot divert water. If a plan is approved, the junior ground water right holders will be required to document the replacement water on a monthly basis. If the junior ground water users are unable to substantially comply with the plan, curtailment of right that are junior will be implemented.

Dreher noted the order is for one year. The department is unable to determine what the obligation may be for the subsequent years and subsequent orders will be issued setting forth the curtail provisions or the obligations to provide replacement water. He further noted there is a provision for late season deliveries of water. The replacement water would be most effective if it is delivered via the North Side Canal Company facilities. In order to meet any replacement obligation, the North Side Canal Company facilities must be used. He noted those facilities divert irrigation water during the summer and there is limited canal capacity available to get replacement water through the facilities. Dreher stated the opportunity has been left open for the replacement water to be delivered after August 31 or as long as the North Side Canal Company facilities can deliver water. This will ensure every opportunity is available to get water to the reach in a way that will increase the spring discharges.

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

DATE: March 1, 2004
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.

Motion by Senator Schroeder to approve the minutes of January 26, 2004 seconded by Senator Williams. Motion carried.

Vote Motion by Senator Little to recommend the gubernatorial appointment of Judi Danielson to the Northwest Power and Conservation Council with a term to expire January 15, 2007; seconded by Senator Stennett. Motion carried.
H 635 Norm Semanko, Idaho Water Users Association, explained H 635

is to clarify that small in stream barriers that store water and which are in low risk areas remain under the jurisdiction of the Department of Water Resources. The department may decline to regulate such barriers that store water based on the department's determination but exclusive jurisdiction would remain with the department. Semanko noted the legislation is intended to avoid unnecessary and duplicate regulation by other regulatory entities, such as cities and counties. For public safety, ensuring uniform engineering standards established by the department for construction, maintenance and operation would be regulated only by the department. These same standards would apply to barriers that are classified as dams by the department. He noted the legislation would provide a means to avoid conflicts between regulatory entities when the department determines that regulation of a barrier or dam is necessary. The legislation is intended to assure jurisdiction resides in the Department of Water Resources and there is not duplicate regulations from other entities.

Senator Burtenshaw expressed concern that barriers in existence for many years which are solid, sturdy with trees planted and gravel would not meet the qualifications. Semanko replied that nothing in the legislation will require the department to do new inspections that they haven't already been doing. The inspections would be every 5 years instead of every 2 years for dams. Burtenshaw stated he believed the barrier at Mud Lake has been maintained by the users. He stated there are now provisions for excess water to be pumped out and the barrier cannot be overfilled.

Upon inquiry from Senator Kennedy, Semanko stated that the director serves on the legislative committee of the Idaho Water Users Association and has been in attendance at the meetings discussing this legislation and has expressed no opposition.

Phil Rassier, Deputy Attorney General, Department of Water Resources, stated the department does not oppose the legislation but is not actively supporting it. There is a concern by the dam safety division personnel that there not be an increase to the department's work load. Rassier noted this was not the intent of the sponsors of the legislation. The department cannot do anything more than it presently does with respect to regulation of facilities. He further noted the legislation sets out "if regulation is required," regulation is to be exclusively by the department.

Upon inquiry from Senator Stennett, Semanko stated nothing in the legislation would affect the current jurisdiction over private canals and there is no intent to change that.

John Priester, Engineer for Ada County, explained the county's opposition to the legislation stated the ordinance which guides such regulation is administered through the planning and zoning office by the county engineer. Priester stated the county does not regulate dams. The county ordinance restricts damaging construction in the foothills and hillside areas where there are steep slopes of 15 percent or greater or erosion concerns along with slope stability. He stated the ordinance is intended for proposed development. Any work in the foothills is considered development because it could impact people and property down stream. He stated that ordinance is known as the "Hillside Ordinance." Under the regulations for a dam, there would need to be proper design and construction. He noted these are the requirements of the county. Another area of concern is the regulation of flood plains in Ada County. There is a foothill flood-way provision which applies to a structure built across a water way that is considered a flood way. Ada County asked that the structure be removed and rebuilt to allow proper room for the flood way. Ada County wants to be able to continue to regulate development and structures which may impede and slow the flows of the flood way stream. He further stated the county opposes the legislation.

Chairman Noh inquired if Ada County had been approached by the Idaho Water Users Association in regard to the legislation. Priester stated he had not been directly involved but is interested in the proposed process.

Upon further inquiry from Chairman Noh, Rassier stated the department considers the risk to human safety and to property, but not necessarily to sediment control. He further stated that sediment control could result in damage to real property.

Matt Howard, Boise attorney, informed the Committee of events in Ada County contributing to the drafting of the legislation. He stated he represents clients who own a small dam he wonders why this legislation is necessary. He explained the dam was pre-existing, with storage of a water right dating back to 1910. The dam hold less ½ acre foot of water. The dam did not fail but an excavator, in cleaning out the pond which is fed by a spring in the bottom of the pond, got too close to the sides and slide into the pond and the dam breached. This caused sediment to flow into McFarland Creek. The Corps of Engineers and the Department of Water Resources under the Stream Channel Protection Act ordered remedial action. Subsequently the dam was reconstructed and the county believes the new dam poses a hazard to public safety. The Department of Water Resources' dam safety engineer inspected the pond to determine if the area was low risk. The low risk determination by the department meets the requirements that the dam poses no threat to permanent structures or human habitation and there is only a little threat to down stream lands. The department engineer determined that if there was total failure of the dam the potential for damage was very low. The department also determined there was no threat to permanent structures for human habitation and very little threat to down stream lands. The preliminary determination was made by the department and is not final. The county has just issued a determination stating that the dam poses a risk to the public safety and there could be substantial damage if the dam collapsed. The landowners are being told by the experts of the Department of Water Resources the dam is in a low risk area but are being told by Ada County the dam poses a threat to public safety. The purpose for the legislation is to clarify the authority. He noted the landowners are not opposed to regulation but it must be clarified who has the regulation authority.

Upon further discussion by the Committee, Senator Little requested to hold the legislation for a couple of days to obtain further information.

Chairman Noh, hearing no objection, stated the legislation will be continued at a later date.


H 482aa

Motion by Senator Pearce to approve the minutes of January 23, 2004; seconded by Senator Burtenshaw. Motion carried.

Steve Barton, Department of Fish and Game, explained H 482aa would change the price for a controlled hunt application and for a controlled hunt permit. He explained because the current prices are the same, confusion has been created. The new controlled hunt permit fee would be $6 and the controlled hunt application fee would be $4.50.

Motion by Senator Schroeder to send H482aa to the floor with a do pass recommendation; seconded by Senator Kennedy. Motion carried.

Minutes Motion by Senator Brandt to approve the minutes of February 2, 2004; seconded by Senator Kennedy. Motion carried.
H 623 Barton then explained H 623 would clarify publication of season closure orders.

Motion by Senator Schroeder to send H 623 to the floor with a do pass recommendation; seconded by Senator Cameron. Motion carried.

H 700 Dar Olberding, Idaho Grain Growers Association, representing the Idaho Fish and Game Advisory Committee, presented H 700 which would provide payment for depredation damages, the department would pay the claimant ½ of the payment up front, instead of the 1/3 required now. The change would also allow for an independent adjuster if either the claimant or the department does not agree on the amount of the claim. He noted this should prevent claims from going to arbitration. Olberding stated the legislation is a result of negotiations over the last couple of years. He stated the Fish and Game Advisory Committee is composed of 3 members appointed by the Department of Agriculture and 3 members appointed by the Department of Fish and Game. He noted the Fish and Game Advisory Committee operates on consensus.

Carl Ray, co-chairman, Idaho Fish and Game Advisory Committee, stated the committee was created by statute to provide oversight of the state's big game depredation program. He stated H 700 has been presented to the Idaho Wildlife Federation, the original wildlife councils, Idaho Cattle Association, Idaho Grain Producers, Idaho Hay Growers, and the Idaho Farm Bureau. Over the last 2 years there have been several versions of the legislation. H 700 accomplishes what the previous proposals did not. The legislation is acceptable to the sportsmen and to agriculture. The advisory committee believes H 700 will streamline the procedures and make it easier to administer the depredation program. The use of a crop adjuster will lead to fewer claims for arbitration. He stated there are not many claims that go to arbitration now.

Upon inquiry from Senator Cameron, Ray stated the funds are available to make the change inasmuch as the change would not affect the total claim amount. Steve Barton, Department of Fish and Game, stated there would be no adverse impact based on the last 10 years of payments out of the depredation account.

Motion by Senator Kennedy to send H 700 to the floor with a do pass recommendation; seconded by Senator Cameron. Motion carried.

H 669 Due to the lack of sufficient committee time, H 669 will be held until Wednesday, March 3, 2004.
H 670 Representative Roberts explained H 670 would add 1 member to the Forest Practices Advisory Committee would be a representative of a nonindustrial forest landowner. The current membership is comprised of 8 members.

Mark McKintrick, Idaho Forest Owners Association, appeared before the Committee and urged the Committee's support of H 670.

Motion by Senator Brandt to send H 670 to the floor with a do pass recommendation; seconded by Senator Pearce. Motion carried.

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

DATE: March 3, 2004
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 Little to approve the minutes of February 4, 2004; seconded by Senator Burtenshaw. Motion carried.

Motion by Senator Kennedy to approve the minutes of February 9, 2004; seconded by Senator Little. Motion carried.

Motion by Senator Williams to approve the minutes of February 11, 2004; seconded by Senator Brandt. Motion carried.

Chairman Noh provided to the Committee copies of documentation pertaining to the amendment to Rule 10(j), Endangered Species Act. The Office of Species Conservation will provide information to the Committee on Friday, March 5 in relation to the amendment and state management of wolves.
H 669 Jay Biladeau, Assistant Director, Department of Lands, explained H 669 is legislation to exempt the State Board of Land Commissioners from the requirement to hold contested case and contested case hearings when the board is exercising its fiduciary trust duties in management of the state endowment lands. He noted the legislation does not include the board's regulatory responsibilities. The board has broad discretionary authority in making decisions when reviewing evidence regarding management of the endowment lands to secure the maximum long-term financial return to the beneficiaries. Biladeau stated in a recent district court decision regarding a state grazing lease, the court held that the board must follow procedures of the Administrative Procedures Act in contested cases when awarding leases. The cost of contested cases can have a significant financial impact on revenues to the endowment funds. He noted in a recent lease of $266 per year, costs of $20,000 were incurred while the revenue difference between the high bid and the second high bid was only a few hundred dollars. The financial concerns of conducting contested cases far outweighs the economic advantage. He noted the legislation would not preclude the board from holding a contested case hearing, but it would be at the board's discretion.

Upon inquiry from Chairman Noh, Biladeau stated if the board made a decision not to hear the testimony or issue, the option of litigation would still be available. An injured party in the particular issue would have standing.

Senator Stennett inquired if the legislation would allow the land board to sell property without citizens having the opportunity to discuss the matter with the land board if the board decided not to hear the case. Stennett inquired if local planning and zoning have no authority over state lands, how can a citizen participate? Biladeau stated the sale of state lands are noticed to the affected counties for their input. A sales plan submitted to the board includes that any comments by the county are considered at that time. The department attempts to involve any one, such as an adjacent land owner, that the department is aware of, who have a concern about a parcel. He noted the transactions are also advertised. The intent of the legislation is to clarify procedures under the Administrative Procedures Act.

Dick Rush, Vice President Natural Resources, Idaho Association of Commerce and Industry, stated their support for H 669 because the legislation would clarify the State Land Board's management authority and decisions.

Judy Bartlett, Idaho Farm Bureau Federation, stated their support for H 669.

Motion by Senator Cameron to send H 669 to the floor with a do pass recommendation; seconded by Senator Pearce.

Senator Werk provided a handout to the Committee from the Office of the Attorney General, dated March 1, 2004, which is attached to the original minutes of the Committee. Senator Werk supports the legislation.

Roll call vote:

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

Nays: Kennedy, Schroeder, Stennett and Noh

Motion carried.

HCR 48 Chairman Noh announced HCR 48 will be held as it addresses rules already considered and decided by the Committee.
H 593 Karl Dreher, Director, Department of Water Resources, explained H 593

would provide for a minimum fee in addition to the amount required under the fee schedule which is based on reservoir storage capacity. Fees collected will be for design review of the construction of new dams or alterations to existing dams. Most of the applications received by the department are for small storage capacity dams but can require many hours for review. The present amount does not adequately reflect department costs. The legislation would provide for a minimum amount of $200 to the added to the application fee based on storage capacity. The department is responsible to carry out the provisions of the Dam Safety Act.

Motion by Senator Burtenshaw to send H 593 to the floor with a do pass recommendation; seconded by Senator Stennett. Motion carried.

H 633 Dreher then explained H 633 pertains to a water right, assuring that the water right is not subject to forfeiture for non use if it is used, as approved by the director of the Department of Water Resources, in mitigation for the effects of using water under a portion of the same or another water right. He noted the legislation would have no effect upon the general fund or other state or local funds.

Motion by Senator Cameron to send H 633 to the floor with a do pass recommendation; seconded by Senator Stennett. Motion carried.

There being no further matters scheduled the meeting was adjourned at 3:00 p.m.

DATE: March 5, 2004
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS PRESENT: Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder, Burtenshaw, Williams, Brandt, Little, Stennett, Kennedy


Senator Stennett excused.

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

Chairman Noh informed the Committee April 1 would be the deadline for submission of plans pursuant to the order of the director of the Department of Water Resources in the Hagerman area call for curtailment. He noted negotiations have been underway with the current status unknown at this time.

Jim Caswell, Office of Species Conservation, stated the amendment to the 10(j) rule will be published in the Federal Register on Tuesday. The amendment will provide equal footing between the state, Tribe and federal government. He complimented David Hensley, Office of Species Conservation, and Michael Bogart, Governor's Office, for their negotiations with the Department of Interior on this matter.

Hensley provided to the Committee a copy of the proposed amendment and a copy of his power point presentation in regard to the amendment. Copies of both documents are attached to the original minutes of the Committee. The goal was to increase the state's management role and to increase the flexibility for taking wolves, especially in regard to big game herds, private property and domestic animals, including pets. The results are 2 rules for nonessential experimental wolves in Idaho, Montana and Wyoming: the amended 10(j) rule and the current 10(j) rule. He noted the current 10(j) rule contains provisions for states without approved management plans, such as Wyoming. The amended rule increases management responsibilities and provides flexibility for the states with approved management plans, such as Idaho and Montana. The amended rule provides for two levels of management in Idaho, the ability to implement lethal means or to move wolves impacting big game herds, the protection of domestic animals (including pets) and the expansion the criteria for the issuance of permits for taking wolves on private property. Hensley noted the amended rule will apply to the area in Idaho south of Interstate 90. Under the federal rule making process, after the publication in the Federal Register there will be a 60 day comment period. He stated the rule could be finalized early this summer.

Hensley stated the amended rule allows management flexibility which would allow taking wolves by lethal means. In relation to private land, the amended rule would provide the ability to shoot, wound or kill a wolf in the act of biting, wounding, grasping, molesting, harassing or killing livestock, livestock guard animals or domestic animals.

The amended 10(j) rule provides that "in the act" means the actual biting, wounding, grasping, molesting, harassing or killing or the reasonable belief that such biting, wounding, grasping, molesting, harassing, or killing is imminent. In relation to private land, the amended rule would also allow wolves to be taken on private land if there is a depredation of livestock or domestic animals on owned or adjacent private property or if wolves are present and pose a significant risk to livestock or domestic animals. The management flexibility would provide for a permit allowing the taking of a wolf would be good for one year. In relation to ungulates, wolves can be remove if there is an unacceptable impact on big game herds in the state. The impact on big game herds would involve mitigation and consultation regarding wolf recovery levels.

Additionally, the amended 10(j) rule defines "unacceptable impact" as any decline in an ungulate population so that population is not meeting established state population management goals, with recruitment that does not allow the population to recover. He further noted under the current rule, as well as the amended rule, anyone can take a wolf in self defense and in the defense of others.

Steve Huffaker, Director, Department of Fish and Game, stated the department has the ability to determine what is the unacceptable impact. He noted "unacceptable impact" is defined in the amended rule as a decline in an ungulate population to below the published management goals for deer and elk herds statewide. If the population is below state goals and there is documentation recruitment into the population is not sufficient to allow the population to recover to management goals, then the department can control the wolves. This gives the department management capability in the back country where there are habitat problems and the department has endeavored to increase the harvest of black bears and mountain lions and the elk populations are not recovering. The data will be compiled and presented to the US Fish and Wildlife Service and the management determination will take into consideration the total status of the state wolf population not just the population in a given area.

Upon inquiry from Senator Little, Hensley stated the primary goal is to get to a holistic management approach and manage the species in consideration of other species. Huffaker added that in the rule there is no provision for taking wolves that are impacting anything other than livestock, pets and ungulates. He does not anticipate significant impacts on other wildlife. Hensley noted that lawsuits are anticipated and they have planned vigorous defenses. Hunting wolves in a open season is not an option at this time.

Hensley noted, upon inquiry from Chairman Noh, that if the rule is enjoined there will be no implementation. The 4d rule has not been enjoined so the process is operating. Secretary Norton has stated that everything is subject to litigation and they are well prepared for that. The rule is legally solid.

The status of wolves in neighboring states will operate under the Western Distinct Population Segment (DPS) which provides that anywhere a wolf shows up in an area that is not designated a non-essential experimental area, it will be treated as threatened. If a wolf crosses into Utah, it is considered as threatened. The down listing proposed rule would change that. Hensley further stated that it is important to note that there are two wolf populations in the state. Prior to delisting, if the down listing succeeds, the state should manage the wolves under provisions of the state plan regardless of the arbitrary line, Interstate 90. Idaho would negotiate with the federal government in a two step process. First, to increase the authority language within the current 4(d) rule that mirrors the authority language in the 10(j) rule. The second step would be negotiating one memorandum of agreement with the federal government for wolf management in the state of Idaho under provisions of the state plan. When wolves are delisted, there will be one state management plan that will manage the wolves within all of Idaho.

Upon inquiry from Senator Pearce, Huffaker stated the department has been keeping track of ungulate populations as part of routine management procedures. The funds from Congress further enabled ungulate monitoring in wolf management areas. He noted the Tribe, in the 8 years prior to the state's involvement, did not collect data on ungulates in conjunction with their activities. The Tribe solely monitored locations of radio collared wolves and collaring the wolves and documenting reproduction. The department will continue the ungulate monitoring and assemble the information for presentation to the US Fish and Wildlife this summer. The department could potentially begin managing wolves this summer. He stated the department will need to determine how many wolves can be taken under permit on private property because of depredations and how many can be taken to control depredation of ungulates. Unless there is an injunction, the department will be able to proceed with management under the rule when it goes into effect.

Huffaker stated the department has known for some time that in the Lochsa-Selway country, where there are habitat problems for elk, depredation by bear and mountain lions, wolves are having a depressing effect on the elk population. He anticipates the department will be able to demonstrate that impact. He noted one of the concerns is there are a lot of wolves in that area that have not been radio collared through the tribal program. It will be difficult to determine the number of wolves and documentation will be necessary. The department will attempt to use radio monitoring to document the 15 packs and the number of required breeding pairs under ESA. It is in the department's best interest to radio collar additional wolves for control action documentation to prove wolf conservation requirements are being met. Eventually, as wolves continue to expand the department will be able to verify the presence of a wolf pack in areas where they do not have radio collars. He noted wolves are going to continue to spread out throughout the west.

Jeff Allen, Office of Species Conservation, stated the only entity with a memorandum of agreement with the US Fish and Wildlife Service is the Nez Perce Tribe. The state does not have a MOA with US Fish and Wildlife Service in regard to wolves. A MOA is under negotiation with the Tribe upon resolution of the outstanding issues and concerns, the signing of the MOA would allow the state to take the MOA to the US Fish and Wildlife Service to negotiate an MOA with them to carry out the provisions agreed to with the Tribe. If the tribe and the state fail to reach agreement, the US Fish and Wildlife Service may negotiate their own MOA with the Tribe. This option results directly from the legislation prohibition against the Department of Fish and Game participation in wolf recovery at the time of reintroduction of the wolves under the experimental designation.

The Governor has indicated a desire to see the Tribe maintain a significant role in wolf activities. Allen stated this could include monitoring the wolf population in the Clearwater area and participating in the out reach efforts in the Clearwater and McCall areas. The state would have primacy over those activities elsewhere in the state and coordinate the monitoring and the outreach with the Tribe within the Clearwater area.

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

DATE: March 8, 2004
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.

Chairman Noh announced a change in the agenda regarding the order of hearing the legislation with RS 14178 to follow H 634aa.

Andy Brunelle, U.S. Forest Service, reminded the Committee of the invitation extended to meet with Forest Supervisors Tuesday, March 9 from 7-8 am in the J.R. Williams Building, West Conference Room.

H 592 Karl Dreher, Director, Department of Water Resources, explained H 592 would change the length of time between inspections of water storage and mine tailings dams. The legislation would allow inspections to be performed at federally owned and regulated dams on time frames that match standard practice at those types of facilities. The legislation would also include water storage dams between 10 and 20 feet in height that currently do not have a specified inspection frequency, but are routinely inspected on a periodic basis. He noted the legislation would result in efficient use of the department's general fund appropriations.

Norm Semanko, Idaho Water Users Association, stated the association's support for H 592.

Motion by Senator Burtenshaw to send H 592 to the floor with a do pass recommendation; seconded by Senator Little. Motion carried.

Minutes Motion by Senator Stennett to approve the minutes of February 6, 2004; seconded by Senator Kennedy. Motion carried.
H 635 Norm Semanko, Idaho Water Users Association, explained H 635 would clarify that barriers that store water in low risk areas are under the exclusive jurisdiction of the Department of Water Resources. He noted the department may still decline to regulate such barriers that store water, but exclusive jurisdiction over the barriers would remain in the department. Exclusive jurisdiction over the barriers will avoid unnecessary and duplicative regulation by other entities in regard to construction, maintenance and operation of the barriers. This would also ensure protection of public safety through uniform engineering standards used for dams and barriers. He noted the legislation would assist in avoiding conflicts between regulatory entities when the department determines that regulation of a barrier is necessary. This could occur when the department determines a change in circumstances changes the risk category of the barrier from low to significant or high.

Theresa Baker, Ada County, the county has liability concerns, but support the proposed amendments.

Motion by Senator Little to send H 635 to the fourteenth order for amendment; seconded by Senator Cameron. Motion carried. Norm Semanko and Karl Dreher will work with Legislative Services on the proposed amendments to H 635.

H 634aa Semanko then explained H 634aa is legislation to provide for written approval by irrigation and drainage entities and land owners for encroachments on the rights of way for delivery of water by irrigation and drainage entities. The legislation would clarify that easements and rights of way are protected from adverse possession. Drainage district easements and rights of way are not subject to adverse possession. Developers must obtain written approval from the irrigation or drainage entity and the land owner for any alterations or encroachments. Developers would also be required to disclose to land purchasers whether written permission had been obtained. The legislation would require all planning and zoning and other land use decision makers to obtain approval from the irrigation and drainage entities and land owners.

John Tensen, City of Boise engineer, stated the city's concern for the clarification of rights of way and the varying widths of those rights of way. He stated it was often difficult to determined the land owner and to obtain approval. He suggested the notification provision of the H 634aa provide for notification by certified letter. This would allow the work to be done after the expiration of a certain time without approval. He noted many times the irrigation or land owner fail to respond to requests.

Jeff Hess, Hawkins Companies, stated the legislation would be an unreasonable requirement for developers because canal companies could unreasonably deny or withhold approval. He suggested that if there is no response from the canal company or land owner within 30 days then the work could proceed.

Tom Miller, Payette rancher, stated his concern that H 634aa would take away land owner rights. He noted the legislation should take into consideration agricultural interests. Additionally, he also noted unreasonable or lack of action by the canal company would stop any necessary work from being done.

Judy Bartlett, Idaho Farm Bureau, noted the canals are used for the delivery of water and maintenance of the canals are necessary for this purpose. She stated the Farm Bureau supports H 634aa.

Motion by Senator Burtenshaw to send H 634aa to the floor with a do pass recommendation; seconded by Senator Brandt.

Substitute motion by Senator Stennett to hold H 634aa in committee; seconded by Senator Kennedy.

Roll call vote on substitute motion:

Ayes: Kennedy, Schroeder and Stennett

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

Motion failed.

Voice vote on original motion passed with Senator Kennedy, Schroeder and Stennett voting nay.

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

DATE: March 10, 2004
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.
RS 14178 Jane Gorsuch, Intermountain Forest Association, introduced RS 14178, a joint memorial to encourage enactment of federal legislation to establish the Clearwater Basin Project Act; development and implementation of pilot projects for improved management of federal lands in accordance with July 1998 Federal Lands Task Force report; coordination of pilot project efforts regarding Healthy Forests Restoration Act, catastrophic wildfire risk reduction plans, stewardship contracting and other initiatives to improve federal land management. She stated 5 pilot projects were undertaken with the Clearwater Basin Project the only one ready for consideration for funding by Congress.

Senator Stennett inquired about a controversial proposed project in the Sawtooth Mountains. Gorsuch stated she was unaware of a proposed project in that area. The Central Idaho ecosystem project encompasses Valley County area.

Robert Maynard, Boise attorney, Perkins Coie, stated his firm has the consulting contract with the Department of Lands to assist in implementing the pilot projects. He noted the two reports issued in relation to the proposed pilot projects: Federal Lands Task Force report in 1998 and the Federal Lands Force Working Group report of 2000. He provided to the Committee an Idaho map depicting the five proposed pilot project areas. A copy of the map is attached to the minutes of the Committee meeting.

The pilot projects focus on federal public lands administered by the Forest Service in Idaho. The projects are about testing more collaborative effective ways for federal agencies to work with the state and local governments and citizens in the management of the federal lands. He noted no federal lands will be transferred to the state. He further noted it does not encompass transferring the decision making authority from federal to state. Environmental protection will not be reduced on these lands. The projects are designed and intended to improve management with less conflict.

He noted the Federal Lands Task Force Work Group report was approved by the Idaho Board of Land Commissioners in February 2001. It was thereafter transmitted to the Idaho Congressional delegation for consideration. The Department of Lands was directed by the Board of Land Commissioners to support the implementation of the report in Congress. His firm consults with the Department of Lands for the implementation of additional pilot projects.

The five proposed pilot projects are: Priest Lake Cooperative, St. Joe Ecosystem Stewardship Project, Clearwater Basin Stewardship Collaborative Project, Central Idaho Ecosystem Trust, and Twin Falls/Cassia Resource Enhancement Trust. The leading project is the Clearwater Basin project which is a collaborative model project addressing wild life and fish habitat, wild fire risk, and other forest health issues on the Clearwater and Nezperce National Forests and encompassing about 2.7 million acres. This project was determined by the working group as needing priority attention in regard to pressing needs and prospects for authorizing and enacting legislation. The legislation is now being considered in both houses of Congress.

Some of the basic efforts are a local collaborative advisor panel composed of environmental groups, forest industry and community government working with the Forest Service to identify and reach a consensus to implement specific high priority activities, such as conservation and stewardship objectives for forest health. Public participation and other measures are provided to reduce litigation and other conflicts in regard to the project. The project provides a working test of the collaborative approach within exiting environmental laws. He noted there will be regular monitoring and reporting to assure adjustments can be made and the objectives and benefits are achieved.

Maynard further stated progress in Congress was delayed by controversies under the Healthy Forest Restoration Act and other priorities. That Act was enacted and became federal law in 2003. The project will enhance opportunities under the Act, stewardship contracting, national and state fire plans and other initiatives the Forest Service and communities undertake. He noted the project is designed with a neutral inclusive structures to assure bi-partisan support. He anticipates enactment enabling the project should be accomplished by the end of the year or in 2005. A hearing in the Senate on legislation is anticipated to be held by the end of March 2004.

In regard to the Twin Falls/Cassia area project, Maynard stated the area encompasses 1.3 million acres of BLM and Forest Service administered lands primarily in Twin Falls and Cassia Counties. The land is a mix of forest and range land with grazing allotments along with recreation uses. The integration of the two federal agencies is an issue in this area. He noted there is strong local interest in the project so this project will be the next to be prepared for Congressional consideration. An updated draft proposal has been prepared for public comment. He noted the discussion information provided to the Committee (a copy of which is attached to the minutes of the Committee) sets forth the status and pertinent information regarding the Twin Falls/Cassia project. Some comments have been received on this project and will be incorporated into the project. He stated the BLM and Forest Service is already proceeding toward better integration and coordination of management under existing pilot authority entitled "Service First." The offices for these two federal agencies will be a joint location in Burley and Twin Falls. The current plan is to build on and further such efforts. One consideration is a single supervisory coordinating manager for the BLM and Forest Service in regard to the project area. In addition, a local collaborative resource advisory group for the lands and an attempt to develop and implement a single set of resource management rules for the lands are under consideration. The project would also provide for regular monitoring. From public meetings and comments, the project appears to have local support. He stated the Twin Falls County Commissioners have stated their support. He further stated that federal legislation will be necessary for some aspects of the project. A draft proposal for consideration by BLM and Forest Service and Idaho's congressional delegation should be ready in the near future. He anticipates the BLM and Forest Service will proceed with some elements of joint collaborative management to be implemented regardless of the project.

In regard to the Central Idaho Ecosystem Trust, it does not extend into the Sawtooth Valley, but does include some Sawtooth National Forest lands which were already being administered by the Boise Forest. If this project moves forward there will be public notice. He noted there have been many changes in the proposed pilot project so that a major revision will be necessary before the project could proceed. When the Boise Cascade mills closed, there was little interest in proceeding.

A fourth project is the Priest Lake Basin Cooperative which involves 265,000 acres of national forest lands adjacent to Priest Lake and State of Idaho lands. This project has not progressed, but was redirected towards a stewardship contract project with the Forest Service which has been successful.

The fifth project is the St. Joe Ecosystem Stewardship project which is based on authorizing increased stewardship contracting. He noted the stewardship program has been expanded at the federal level to nationwide authorization. So he does not anticipate his participation in this project as a result.

Senator Stennett expressed concern regarding the area encompassed by the proposed Central Idaho Ecosystem Trust. He noted the proposed area encompasses the Sawtooth Wilderness, Blaine County, Elmore county and Boise County. He noted some of the area is truly a recreational area with different land use goals. Maynard stated the project follows an ecosystem based boundary and includes designated wilderness area, but it was not designed to mandate change in recreation or non timber management in those areas. He further stated he does not anticipate it will.

Upon inquiry, Larry Schlete, Division of Financial Management, stated $400,000 was originally appropriate for these projects and that has been expended. An additional $100,000 was appropriated for this year with the current balance is unknown at this time. He will provide information to the committee on the account balance.

Senator Stennett and Senator Kennedy expressed their concern over the lack of information available to them and county officials in regard to the proposed pilot projects and the counties encompassed by the pilot project. Senator Stennett asked for consideration to amend the joint memorial to change the number from 5 to 4 and eliminating the Central Idaho Ecosystem Trust from the memorial.

Motion by Senator Little to send RS 14178 to privileged committee to send to floor with do pass recommendation. Chairman Noh asked for unanimous consent from the Committee to send RS 14178 to privileged committee and to the floor with a do pass recommendation. No objection was made.

Representative Cuddy informed the Committee Idaho is 13th in the nation with the amount of federal land and 43rd in regard to private land. He noted this contributes to the economic struggle in Idaho and the emphasis of the project is to get the federal land back into productivity.

MINUTES: Motion by Senator Schroeder to approve the minutes of February 16, 2004; seconded by Senator Little. Motion carried.
From Idaho

To Iran

Marcia Franklin, Idaho Public Television, made a video presentation to the Committee concerning her recent natural resources fellowship to Iran.

Franklin thanked Chairman Noh for his many years of assistance to her to educate her on natural resource issues and for his public service.

Franklin introduced Peter Morrill, General Manager, Idaho Public Television, to the Committee.

Her trip to Iran last fall was for 6 weeks under the auspices of a non-partisan fellowship designed to give journalist an opportunity to travel internationally who would not otherwise have the opportunity to do so. Her proposed project was based on a personal interest in Iran. She noted she has created a web site containing the information from her trip and the full program will be a broadcast on public television on March 18, 2004 at 8:30 p.m.

There being no further matters to come before the committee, the meeting was adjourned at 2:45 p.m.

DATE: March 12, 2004
TIME: 1:30 p.m.
PLACE: Room 433
MEMBERS PRESENT: Chairman Noh, Vice Chairman Pearce, Senators Cameron, Schroeder, Burtenshaw, Williams, Brandt, Little, Stennett, Kennedy

HJM 11
The meeting was called to order by Chairman Noh at 1:35 p.m.

Chairman Noh advised the Committee of the need for further committee meeting to be scheduled on Tuesday, March 16 at 7:30 p.m. He provided to the Committee a handout in regard to HJM 11. It contains an analysis of potential legal problems stemming from such constitutional amendments from the legal department of the International Association of State Wildlife Agencies. A copy is attached to the original minutes of the Committee. He stated his concern that the proposed memorial for a constitutional amendment regarding hunting would shift the burden of proof from the person who is aggrieved by a rule to the department. This would require the department to defend a hunting season schedule or trapping rule. He noted there was no testimony in the House committee regarding the legislation other than the sponsor and the Speaker of the House. He noted there has been no legal analysis of the proposal and hence the legislation will not be considered by the Committee this session.

H 636aa Norm Semanko, Idaho Water Users Association, explained H 636aa, because of the amendment, only secures the right to full beneficial use of water rights by clarifying the meaning of consumptive use. By defining authorized consumptive use, H 636aa sets out that a water right entitles the owner to make any use authorized by the right. The owner of an water right may grow any crop or vegetation at the authorized place of use, and may change from less water-consumptive crops to more consumptive crops without obtaining approval from the Department of Water Resources.
Motion by Senator Cameron to send H 636aa to the floor with a do pass recommendation; seconded by Senator Pearce. Motion carried.
Water call Karl Dreher, Director, Department of Water Resources, stated he had issued an amended order in the Rangen action which changes the quantity of replacement water. He noted the error was not in the model or the input data. As part of the process of reformulating and recalibrating the ground water model, two methods were used to determine the irrigated acreage by priority date. In preparing to issue the original Rangen order, the ground water model was run simulating the curtailment of ground water rights junior in priority to July 1962. He stated the model is normally run on a 6 month time step process. He noted there was some difficulty applying the new technique and in changing the time step in the model to one year which resulted in an result which should have been divided by two for the correct amount of water necessary for the Rangen call. The original results from the model simulated two irrigation seasons, instead of one which overstated the depletions to the Thousand Springs area. Dreher issued an amended order to correct the error. He further stated that dairymen had filed a protest to the original order, but the protest will also apply to the amended order, seeking a stay and requesting a hearing. A notice of contested case has been sent out based upon that protest and two others that were received the day before. A telephone status conference is scheduled for Monday, March 15 at 10 A.M. Dreher further stated he doubted if a decision on whether to grant a stay or not can be issued immediately as it will take time to evaluate the request for a stay. Any determination made in the process can be appealed or a hearing requested. Once the appeal process has been exhausted through the department, the parties could seek judicial review of any determination made by the department.

Dreher further stated there are other calls pending which are not part of the contested case and the orders have not been issued at this time because the evaluation has not been completed. He stated his concern that spring rights and others will continue to decline. If earlier priority date water rights are not satisfied, they could make a call and it would be a very difficult decision for the director to make. Such a call would have additional ramifications on ground water rights. Upon further discussion, Dreher stated department personnel are making necessary staff adjustments to accommodate curtailment that may be required. He noted the county sheriffs will be contacted and requested for assistance and security for the well being of the department's employees.

Senator Williams inquired if the director was prepared for the publicity because of dead cattle due to lack of water. Dreher stated if that was the outcome that would be unfortunate, but he has a statutory responsibility to apply the law. Chairman Noh noted one of the reasons for the current confrontation is because it was necessary last summer for trucks to remove many thousands of pounds of trout out of raceways to other places or to slaughter because there was not adequate water. The situation is not unprecedented in this type of crisis. Surface users have for years, had the experience of being curtailed and ground water users have not yet had to do so.

Dreher stated there are surface water users with junior priority surface water rights who have had to move cattle because there is no water for them. Water rights have not been administered this way previously.

Chairman Noh stated that every effort was made to reach agreements so that the director was not placed in this position, but the negotiations failed. Dreher informed the Committee the situation needs to be settled through an agreement. He noted he now has a contested case and he cannot promote an agreement at this time. It is up to the parties to come to an agreement between themselves and present it for approval. He is aware discussions are underway, but he is not a party to the discussions.

Senator Burtenshaw inquired about drilling additional wells. Dreher stated drilling additional wells would have the potential of affecting water rights. The aquifer system is primarily a fractured basalt and the water flows through the fractures. If the water flow is disrupted through the fractures, there will be an affect. He noted it is very difficult to foretell what the affect might be. An action to try to increase the amount of water discharged through a particular spring complex, could remove water from an adjacent spring complex. He stated the cost effectiveness of deep well drilling would be a consideration. Those types of wells would normally be located close to the rim and would have the potential of affecting other springs. Dreher further noted one of the parties involved has filed an application for a permit to drill a vertical well in the unrelated aquifer below the springs. He noted that application has been protested as well.

Senator Little inquired if an agreement with a change in crop rotation using less water over a longer period of time would help. Dreher stated consumptive use is not a limitation of a water right. The elements of a water right are limitations on a water right. Chairman Noh noted the particular area has had a major shift in cropping patterns towards alfalfa and corn which are water intensive.

Senator Stennett inquired what happens upstream as a result of the call. Dreher stated there are rights across the spectrum of priorities. All ground water rights up grade of the springs do not have a significant impact on the springs. The model verifies this. Dreher noted ground water cannot be seen, but it can be simulated. He reminded the Committee, the model is calibrated to measure reach gains in the river so it is not an arbitrary guess. It is calibrated to measure flows in the river, as well as ground water levels in the aquifer. Dreher further stated ground water right to ground water rights are administered based upon pumping levels. Whether or not a junior ground water right has unreasonably reduced the level of ground water available to the senior right is the determination. The effects of a well on surface water source is whether or not the well has reduced in quantity the water available to the surface water right with a senior priority and causes injury. Dreher further clarified the fact that a ground water right reduces the quantity available to the senior water right does not in and of itself constitute injury. In the current situation, there has been significant decreases spring flow due to other reasons such as drought.

Senator Cameron inquired whether a junior water user to the springs who is shut off based on the order, could make a call to request their full right against junior pumpers. This would create the potential for a rippling affect upstream all the way to eastern Idaho and back down on the other side of the river. Dreher stated the potential is always there for people to come forward and allege injury. The issue is if other junior priority rights reduce the quantity available to the senior right. Only in that instance could they possibly prevail on an alleged injury. Other reasons may exist why a particular well may not be producing the full quantity of water totally unrelated to upgrade junior priority water right. Just because the senior right was not receiving its full quantity of water, does not mean that is because of an upgrade junior rights. The determination would need to be made by the department and potentially a similar order could be issued. Senator Cameron further stated one of the concerns is the potential economic affect this could have on many communities and the fact that 3/4ths of Idahoans do not understand the potential economic impact this could have on the agriculture industry and on the state. Dreher stated he does not take the economic affects lightly but he cannot weigh the economic impact in making these kinds of decisions. The Legislature affirmed the prior appropriation laws as they apply to ground water, but then stated that an exercise of a senior priority right cannot be used unreasonably. He noted the statute has not been tested in the courts. He stated many Idahoans believe the water problem is just a Magic Valley problem and do not understand that water is a finite resource everywhere in the state. These kinds of water problems are going to continue to increase all over the state because we cannot make more water but there are more people and industries moving into the state. The competition for water is growing and the water conflicts will continue. He expressed concern that the local media does not understand how serious the situation is. He noted the economic affects are not just to the Magic Valley. The ripple affect will be noticed throughout the state on people that rely on the agriculture economy.

H 745 Semanko then explained H 745 would ensure that irrigation and drainage ditches can be operated, maintained, and repaired without a permit. The legislation clarifies that irrigation and drainage ditches are not navigable streams because it codifies case law holding that diverted water is the property of the appropriator while under the appropriator's lawful control. It further sets out that ditches and drains are not stream channels and maintenance does not require a stream channel alteration permit. Time having expired committee consideration of H 745 was continued to the next meeting of the committee.
Time having expired; the meeting was adjourned at 3:00 p.m.

DATE: March 16, 2004
TIME: 8:00 a.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 8:00 a.m.
MINUTES: Motion by Senator Burtenshaw to approve the minutes of February 18, 2004; seconded by Senator Kennedy. Motion carried

Chairman Noh informed the Committee of the negotiations yesterday in relation to the call for water by the Director of the Department of Water Resources. Chairman Noh complimented the Speaker of the House, Deputy Attorney General Clive Strong and the Governor for their efforts. He noted there will be legislation to be considered by the committee as a result of the negotiations, including appointment of an interim committee. The spring users and the senior surface users needed to be convinced that the Legislature and the Governor are committed to finding a long term solution with significant solutions within a year to the declining aquifer. The litigation, the director's order, and other aspects of the situation will be stayed for one year. If solutions are not accomplished within one year to the satisfaction of the senior surface users and the spring users, the situation will revert to its present state. He further stated there would be a broadening of the membership on the interim committee will be necessary and adding non membership. He noted the members of the committee will need to be committed to a significant amount of time. The two major trout companies reached a compromise which enabled negotiations to proceed. The state has agreed to pay the rental costs on 40,000 acf. of water from the water bank which will then release the private money which the ground water users are committing for funding of infra structure and mitigation for the trout companies. He stated the details will be provided to the Committee as soon as it is available. There will be a status conference on Wednesday with the director of the Department of Water Resources to establish procedures and necessary documentation.

H 544aa Representative Denny explained H 544aa and additional amendments. The proposed amendments have been engrossed into H544aa for the committee's consideration along with the proposed amended statement of purpose. The legislation was introduced originally to require the Department of Environmental Quality to include watershed advisory groups in the development of TMDL. He stated there was a problem in regard to the Weiser River watershed advisory group. Members of the group who had been meeting for five years felt that their input was set aside or totally ignored. The original legislation required a simple majority vote of the watershed advisory group before a TMDL could be submitted for public comment or to EPA for approval. After the original legislation was considered by the House Environmental Affairs Committee without a single dissenting vote, there was concern expressed by many affected industries that the requirement of the watershed advisory group approval could make it impossible for DEQ to meet the court imposed TMDL schedule. The proposed amendments have engrossed into the legislation to facilitate better understanding of the amendments. The amendments address the concerns expressed by the Weiser watershed advisory group, Idaho Association of Commerce and Industry, water users and the Farm Bureau. Representative Denney stated the goal in developing and implementing TMDLs is to improve water quality and it is essential to have the input of the stakeholders of the watersheds. Unless the stakeholders' interest and commitment are considered, the development and implementation of TMDLs is nonproductive.

Kevin Beaton, attorney appearing for Potlatch Corporation and the Intermountain Forest Association, noted the concerns regarding H 544aa because of the fifty percent requirement for watershed advisory groups to approve the TMDL before it was considered for public comment and submission to EPA. The concern was the requirement could hold up the TMDL process resulting in EPA taking over the development of TMDLs for certain watersheds in Idaho. The proposed amendments codify the existing process which is already in place in well functioning watershed advisory groups. He informed the Committee that DEQ has some reservations and concerns regarding the consultation process for some watershed advisory groups. The proposed amendments set forth a detailed process for DEQ to follow to ensure meaningful input from a watershed advisory groups. Additionally, the proposed amendments would codify the process to ensure that water quality standards are revised if appropriate. Beaton noted that during the development of TMDLs the water quality standards may not be attainable or may be inappropriate. However, the TMDLs are required to be based on existing standards. The legislation would require that the watershed advisory groups with concurrence of the basin advisory groups recommend changes to the standards and DEQ is required to take those recommendations seriously.

Beaton then explained to the Committee the respective amendments to H 544aa. A copy of proposed engrossed H544aa and the proposed Amended Statement of Purpose are attached to the original minutes of the Committee. He noted a new definition regarding "subbasin assessment" is added to the statute. The subbasin assessments are codified or memoralized in DEQ guidance in the development of TMDLs. Because the number of TMDLs DEQ is required to develop, the subbasin assessment process is a component of the TMDL. He noted the watershed advisory group is critical to the process. DEQ is required to consult with the watershed advisory group over the development of the subbasin assessments. He noted the definition is verbatim from the DEQ guidance on TMDL development.

Beaton further informed the Committee there were some problems with a watershed advisory group and DEQ's interaction with that group. As a result, the amendments provide for a consultation process which requires DEQ to try to get the watershed advisory groups involved as much as possible in the development of the subbasin assessment of the TMDL. There is a prohibition for DEQ to submit TMDLs for public comment or to EPA for approval until the consultation process has been followed. A minority report provision is also available if the watershed advisory group agrees with the TMDL or portions of the TMDL and DEQ is required to respond to the disagreements in the public record and in any submission to EPA. Beaton stated the amendments just codify the existing practice. It has been typical for DEQ to share the data with the watershed advisory groups and the opportunity has been provided to DEQ to utilize the knowledge and expertise of the watershed advisory groups. The ultimate responsibility of the TMDL is still DEQ's and DEQ has to defend it when it is submitted to EPA for review and approval.

Beaton further stated the amendments also specify the responsibilities of the watershed advisory groups and tracks what is involved in the consultation process. Additionally, it provides that the watershed advisory group can advise DEQ on the appropriateness of water quality standards during the TMDL process. The amendments also discusses the process in which the watershed advisory group with the concurrence of the basin advisory group recommend changes to the water quality standards. He noted changing the water quality standards can be a rigorous and difficult process for DEQ in order to get approval from EPA. If there are endangered species are involved, an ESA consultation would be required. In some instances, the TMDL is set to achieve standards which can not be achieved, such as temperature standards. He noted this would force the process to evaluate changes in water quality standards, but is not intended to slow down the TMDL process. Nothing DEQ does based on the recommendations of the watershed advisory group or the basin advisory group can affect EPA's review and approval of the changes and standards.

The amendments also set out a more formalized membership of the watershed advisory groups. He noted this follows DEQ's existing practices as to the membership in a watershed advisory group. The duties of the watershed advisory group are also restated in the amendments. Beaton stated the only potential fiscal impact to DEQ would be in the standards revision process, which can sometimes require the collection of data and undertaking of studies which might require additional funding.

Toni Hardesty, Department of Environmental Quality, stated the proposed amendments to H 544aa are workable. She noted there will be some additional administrative burden to the process but DEQ anticipates that can be managed. The handout provided by Hardesty is attached to the original minutes of the Committee meeting. She stated the department understands the proposed amendments would not preclude TMDLs from being submitted even if the basin advisory group, the watershed advisory group or the department is considering a possible change or an assessment of water quality standards. She further stated DEQ would initiate an assessment of water quality standards upon advice from the watershed advisory group and concurrence from the basin advisory group. Any decision by DEQ to change the standards would be made after the assessment is complete and the results indicate a change is appropriate and feasible. Hardesty further stated DEQ would be required to reevaluate existing watershed advisory groups to ensure that membership conforms to the requirements set out in the legislation. If the membership does not represent the necessary interests, the director is required to evaluate and appoint appropriate members.

Bill Sedivy, Executive Director, Idaho Rivers United, stated the proposed amendments makes the legislation more acceptable to their organization. He stated concern if the legislation was necessary, but a major concern regards the ability of the watershed advisory group to affect potential changes in water quality standards. He noted the WAGS are citizen groups that do not have the technical or legal experience needed to make water quality decisions affecting watersheds or decisions regarding whether a TMDL would comply with state and federal laws. Sedivy stated there it could be difficult for DEQ to find representation to fill all the different interest groups for the watershed advisory groups. He stated Idaho Rivers United opposes the legislation even as amended.

Beaton informed the Committee he had an opportunity to review the submitted memorandum handout by Hardesty as requested by Chairman Noh and agrees with the first and second statements. He stated concerns with the change in standard process. If the standard should be changed is not DEQ but the Board of Environmental Quality because a change in the rules would be required. It is the responsibility of the Board of Environmental Quality to establish rules.

Justin Hayes, Idaho Conservation League, expressed concern that the water quality standard could be changed. He acknowledged that it is good to have a process to enable the initiation of the possibility of change to the water quality standard, but feels the legislation is highly direction to change and requires DEQ to change the standard. He urged the committee to change the legislation or to hold it in committee.

Jane Gorsuch, Intermountain Forest Association, stated their support of the legislation and the proposed amendments.

Kyle Hawley, Idaho Association of Soil Conservation Districts, stated the associations support of the legislation because it encourages local input in the process.

LaVelle Braun, Weiser Watershed Advisory Group, stated their concern that the information and knowledge from the local citizens participating in the watershed advisory group not be ignored by DEQ. He explained to the Committee the Weiser Watershed Advisory Group's experience with a TMDL recently. They concur with the proposed amendments to the legislation and urged the committee's support.

Norm Semanko, Idaho Water Users Association, stated their support for the legislation and the proposed amendments.

Dick Rush, Idaho Association of Commerce and Industry, stated their support of the legislation and proposed amendments.

Motion by Senator Pearce to send H 544 aa to the fourteenth order with the proposed amendment; seconded by Senator Cameron. Motion carried. Senator Stennett voting nay.


H 745

Norm Semanko, Idaho Water Users Association, continued the presentation on H 745. He requested H 745 be sent to the fourteenth order for consideration for the suggested amendments. He stated section one from the legislation would be eliminated, lines 9 through 32 on page 1, because of the intent is to clarify and ensure that irrigation and drainage works will continue to be operated without any state or federal permits. He noted this is not intended to regulate recreation within the canals.

Semanko stated in regard to the nature of a water right, there is difference in the law between water that is in stream and when it is lawfully diverted and used. He noted Section 42-101 provides that all waters of the state when flowing in their natural channels are the property of the state. He further noted there have been several cases in Idaho which have recognized that the situation is different once the water is diverted out of the natural channel pursuant to an existing water right. Private rights in water authorized by law is not an ownership while they are flowing in the natural channels. He further stated after diversion from the natural stream into ditches, canals and pipes the water becomes the property of the appropriator. The proposed amendment only clarifies existing law.

Justin Hayes, Idaho Conservation League, expressed concerns urged the committee to oppose the legislation and proposed amendments.

Bill Sedivy, Idaho Rivers United, stated their opposition to the legislation because of ownership concerns.

Motion by Senator Cameron to send H 745 to the fourteenth order; seconded by Senator Pearce.

Substitute motion by Senator Stennett to hold H 745 in Committee; seconded by Senator Kennedy.

Roll call vote on substitute motion:

Ayes: Kennedy, Schroeder, and Stennett

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

Absent: Brandt.

Motion failed.

Voice vote on original motion passed with Senator Stennett and Senator Kennedy voting nay.

S 1417 Senator Burtenshaw explained S 1417 would allow the Department of Agriculture and the Department of Fish and Game to work with the Division of Animal Industries regarding spacial separation of big game and livestock in eastern Idaho.

Motion by Senator Little to send S 1417 to the floor with a do pass recommendation; seconded by Senator Williams. Motion carried.

Time having expired; the meeting was recessed at 9:20 a.m. to reconvene at 1:00 P.M.

Reconvene Chairman Noh reconvened the meeting at 1:05 p.m.
H 515 Jay Biladeau, Department of Lands, stated the legislation would enable the Board of Land Commissioners to lease state endowment lands for commercial purposes for up to 49 years. He explained to the Committee the Board is currently required to obtain Legislative approval for each long term lease. He noted this delays lease negotiations and provides uncertainty to the lease negotiations. He reminded the Committee the Board is required by the Idaho constitution to manage endowment lands to secure the maximum long term financial return for the beneficiaries. The legislation would enable the Board to enter into leases for commercial purposes and realize a greater financial return than can be obtained through short term leases. Longer term leases allows the lessees to recoup capital investments and enables financing. He noted revenue to the endowment funds would increase because of the higher market value of commercial businesses which would generate better market return on the endowment lands.

Upon inquiry from Senator Schroeder, Biladeau stated the legislation is not being introduced because of any specific parcel or bidder. Biladeau further stated if the legislation did not pass this year the department and Land Board will submit the legislation again next year.

Motion by Senator Cameron to send H 515 to the floor with do pass recommendation; seconded by Senator Burtenshaw.

Motion carried.

H 755 Ken McClure, attorney representing Broadmore Development Company,

stated H 755 would allow the state to sell the mineral rights for land previously sold if the use is for development purposes. He noted H 510 passed by the Legislation this session enables the state to sell surface and mineral rights together to the highest bidder if the land is to be used for development purposes. He noted the Department of Lands has expressed concern about the constitutionality of some provisions of the proposal. Their concerns will be accommodated and request the legislation to be sent to the fourteenth order for a proposed amendment.

Motion by Senator Little to send H 755 to the fourteenth order for amendment; seconded by Senator Stennett. Motion carried.

HJM 23aa Norm Semanko, Idaho Water Users Association, explained HJM 23aa in behalf of Speaker Newcomb. He stated the memorial supports the efforts within the state to intervene in federal litigation regarding the biological opinion for the Bureau of Reclamation project in the Upper Snake River Basin. He noted the memorial also urges the rejection of efforts to release large amounts of storage water for flow augmentation or to remove or breach dams on the Lower Snake River. The memorial endorses the resolution of the 4 Northwest Governors to restore sustainable, harvestable populations of wild salmon and steelhead in Idaho rivers where the species now exist. A feasibility study evaluating modernization of flood control operation in the Snake River basin is urged which would facilitate salmon flows and improve annual reservoir refill for water uses, including irrigated agriculture.

Bill Sedivy, Idaho Rivers United, stated their opposition to HJM 23.

Motion by Senator Little to send HJM23 to the floor with a do pass recommendation; seconded by Senator Williams

HJM 24 Speaker Bruce Newcomb explained HJM 24 recognizes that additional water supplies are need to meet state needs. The memorial urges federal and state agencies to identify and develop water supply enhancement projects. The memorial encourages the Bureau of Reclamation, Corps of Engineers, Water Resource Board, and the Department of Water Resources in the development of water supply projects.

Bill Sedivy, Idaho Rivers United, stated their opposition to HJM 24.

Motion by Senator Burtenshaw to send HJM 24 to the floor with a do pass recommendation; seconded by Senator Pearce.

Substitution motion by Senator Stennett to send HJM 24 to the fourteenth order for amendment; seconded by Senator Kennedy.

Voice vote on substitution motion failed.

Voice vote on original motion passed.

There being no further matters scheduled before the Committee, the meeting was adjourned at 2:05 p.m.

DATE: March 19, 2004
TIME: 8:00 a.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 8:00 a.m.
H 774 Chairman Noh explained H 774 is to change the name Box Canyon to Earl M. Hardy Box Canyon Springs Nature Preserve pursuant to the purchase and sale agreement for Box Canyon Springs with Earl M. Hardy, LaVane M. Hardy, the Hardy Foundation, Inc. and the Earl M. and LaVane M. Hardy Charitable Remainder Annuity Trust.

Motion by Senator Little to send H 774 to the floor with a do pass recommendation; seconded by Senator Brandt. Motion carried.

Review of agreement staying the

April 1 curtailment of ground water users in the Hagerman Reach of the Snake River

Chairman Noh stated the Interim Committee appointed to address water issues has scheduled its first meeting for April 9.

Clive Strong, Chief Deputy Attorney General, Natural Resources, informed the Committee on the status of agreement staying the April 1 curtailment of ground water users in the Hagerman Reach of the Snake River. The handout provided to the Committee is attached to the original minutes of the meeting. He noted the agreement is not final at this time; the last paragraph is under negotiations.

Strong stated the public is not aware of the complexity and magnitude of the issue and the impact on everyone daily lives. There has been a continuing decline in spring flows in both American Falls and Thousand Springs Reaches. The drought conditions have emphasized the complexity of changes in state policies. Historically the Snake Plain Aquifer flowed at a rate of about 4,000 cfs in the early 1900's, but with development in the 1930's to 1950's there was diversion of water onto the Snake Plain which resulted in a large amount of incidental recharge to the aquifer and increased the flow to the Thousand Springs Reach to about 7,000 cfs. At the same time the spring flow was increasing the development of aquaculture which is heavily dependent on water of high quality. The springs are ideal for that activity. Those rights were issued on the premise that the water would continue to be available. In the 1960's and 1970's, there were conversions from gravity irrigation to sprinkler irrigation which resulted in a significant reduction in the amount of surface water diversion above the aquifer a, resulting in a decline in incidental recharge. At the same time, ground water pumping began. The combination of ground water pumping and the reduction in recharge with the drought caused the spring flows to decline significantly to the point there is now conflict between spring water users and ground water users. The conflict resulted in the delivery call which then resulted in the potential curtailment of 112,000 acres of land irrigated by ground water. He noted this could have triggered in rebound calls against other junior water users upstream which would have resulted in a devastating effect on the economy. Leadership in the House and Senate, as well as the Governor, determined it was important to find a means to avoid curtailments while the state develops a longer term solution to the problem. As a result, the agreement centers with a necessary, significant legislative commitment. There will be active participation of the natural resource issues interim committee over the next year to work with stakeholders and technical representatives to develop long term comprehensive approaches to aquifer management. A critical component to be addressed this summer will be to find opportunities and methods for stable, long term funding of management activities. There needs to be long term stability in the water supply which will benefit the whole public. He noted there will need to be a funding mechanism which would reflect the benefits received from the use of the state's water.

The funding component in the agreement will be the addition of position in the Department of Commerce to work directly with the spring users in the Thousand Springs Reach to identify state and federal funding sources to facilitate implementation of long term plans. The position would also provide assistance for the development of enhancing business opportunities for aquaculture industry.

There will be another position added to the Department of Water Resources to assist the water masters and assist with identification and evaluation of alternatives for beneficial use of spring flows. Strong further stated that state and federal funding would be provided for a study in 2004 determining projects for augment flows for spring dependent sources. Additionally, the state will commit $300,000 in 2004 for development and implementation of a long term mitigation plan. The state will also seek federal assistance in development of a long term aquifer management plan through the 2025 Grant Program of the Bureau of Reclamation and other possible funding sources.

The legislature will be required to create a fund within the Department of Commerce for grant funding to affected spring users for the implementation of infrastructure improvements. He noted the fund will be authorized to receive funds from water users causing depletions to Eastern Snake River Plain Aquifer. For FY 2005 the legislature will appropriate $500,000 to the fund. One project to be funded would be test wells to determine the feasibility of augmenting the water supply available for aquaculture uses.

In 2004 the legislation will appropriate $520,00 to the Idaho Water Resource Board to lease 40,000 acre feet of storage water for replacement water delivery in District 130. The legislature will also appropriate $500,000 to the Idaho Water Resource Board loan fund. The Board will then be able to loan up to $500,000, with interest, to the North Snake Ground Water District and the Magic Valley Ground Water District for undertaking mitigation measures. Another component of the agreement is that the 2005 legislature will review and take action on recommendations from the interim committee.

Strong further stated the state will provide $300,000 in 2004 and $500,000 in 2005 in 20 percent grants and 80 percent loans to ground water users for use in reducing ground water pumping conversion to surface water supplies. There will be a collaborative effort with the technical advisory committee and Water Resource Board to complete the recalibration of the ground water model by December 2004. The Department of Water Resources will begin negotiated rule making for review and modification of existing conjunctive management rules. The Department of Commerce will assist in solutions for water users impacted by the declining aquifer level and spring flows. The Department of Agriculture is to provide technical assistance in the development of marketing strategies for aquaculture products.

Strong further noted the Governor will issue an executive order reaffirming the moratorium of April 1993 on ground water development. The Department of Water Resources will ensure compliance with the executive order.

Upon inquiry from Senator Burtenshaw, Strong stated the $1 million is coming from the North Side Ground Water District and Magic Valley Ground Water District. He noted a portion of that will be a loan which will be paid back by the membership over a couple of years.

Senator Burtenshaw further inquired when the $500,000 in the 20-80 grant would be repaid. Lynn Tominaga, Executive Director, Idaho Ground Water Appropriators, stated the payment would be paid over 5 years at 3 percent.

Strong noted these provisions will meet the short term needs and allow development for long-term plans. The delivery call will not proceed until March 15, 2005. He noted how remarkable it was during the past week that people have been able to set aside some of the long time bitterness regarding water delivery issues and agree on the mutual, best interests and the state's best interests to try to develop a long term management plan for the aquifer. He stated often times out of a crisis comes the opportunity to make good policy and this is the state's opportunity to meet the needs of all of the interests in the state.

Upon inquiry, Strong stated the litigation and the delivery call is stayed until March 15, 2005. At that time determinations can be made by them if they need to proceed any further. There has to be an indication of sufficient progress this year.

Upon inquiry from Senator Kennedy, Strong stated the $520,000 will be paid for storage water to the space holders in the water bank. The state will make rental payment like any other water user for access to water for recharge. The water is storage water in the reservoirs in the Upper Snake which will be leased on a one year basis for recharge. Upon inquiry from Senator Kennedy as to the use of general fund money for water for the irrigators to settle the dispute, Strong stated general funds should be used for this purpose because the state is providing water to resolve the problems with ground water management levels which affects irrigators, cities, counties and domestic well users. Strong further noted that every water user will benefit. Of the appropriated funds, $500,000 will be repaid to the state and the other monies are part of ongoing management responsibilities for the aquifer. He noted there has not been sufficient resources on the ground in the past to do an effective management job. The position added to the Department of Water Resources will be an ongoing position and responsibility. The position in the Department of Commerce is to work with the local industries to develop economic progress in those area which will be a continuing position within that department. In relation to the $500,000 to the Department of Commerce for the grant program, the program is specifically intended to help relieve the demand on the spring flows so there is the ability to address the water supply that people are entitled to at the spring while managing the aquifer levels to allow for full economic development of the aquifer. He further stated this is not a payment of monies to any individual; it is a payment for infrastructure improvements and management.

Strong further informed the committee the crisis is just a symptom of overall problems in the aquifer. He noted a similar situation in 1984 in balancing hydro power development versus other economic interests in the state. The state has the sovereign control of the water and has responsibility to assure a fair and equitable allocation of the water supply.

Chairman Noh noted because of the nature of the agreement that if the legislature and executive branch and others do not move in a timely fashion to develop long term general remedies people will be tempted to precipitate another crisis in order to obtain attention and funds for their problem.

Strong noted the interim committee will focus on the problem within water district 130, but the resolution is much broader in nature because similar problems also exist in water district 120, the Bear River, Palouse Aquifer and Rathdrum Prairie Aquifer. He noted the development of the economy is making demands for the water resource which exceed the water supply. The Endangered Species Act also creates a conflict in water issues because of the demand for water from the Upper Snake River Basin.

Senator Kennedy stated the same problem is occurring in the Mountain Home Desert now. The Mountain Home water system is totally over appropriated and the ground water users' water tables are dropping at a significant rate every week. The senior users are about ready to make a call in that area.

Senator Stennett noted the director will not be required to implement the curtailment notice in August for the 2005 season. Strong stated that provision is under the Ground Water Management Act when an notice is issued in August preceding the irrigation season in order to give advanced notice of possible curtailments. One of the issues the interim committee will address is whether this is the proper mechanism for these curtailment or if there is a better mechanism avoiding the instability caused by the orders. He noted the concern to financial institutions regarding loans and the impact on real estate loans. The effect on the economy is very substantial.

Strong informed the Committee the mediation with the Nez Perce Tribe is trying to resolve the last issue and he is hopeful of an agreement will be reached within the near future.

Strong then stated his appreciation to Chairman Noh for the many years of dedicated work in behalf of natural resources.

Speaker Bruce Newcomb then informed the Committee of his appreciation and thank you to Clive Strong for his responsible and educated handling of natural resource issues as reflected in the current water situation. He noted the state is fortunate to have an employee of Strong's caliber and education in such a position. Speaker Newcomb went on to thank Chairman Noh for his many years guiding natural resource issues.

Chairman Noh then presented Page Emily Infanger with a letter of recommendation for her assistance to the Committee and staff.

There being no further matters to come before the committee, the meeting was adjourned at 9:00 a.m.

DATE: March 20, 2004
TIME: 3:30 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 3:30 p.m.
HCR 56 Chairman Noh explained the legislation would authorize the Legislative Council to expand and continue an interim study committee to undertake and complete a study of natural resource issues. Membership on the committee will be decided by the leadership of the Senate and House of Representatives and the Legislative Council. The committee will ensure that all commitments are met in the Eastern Snake Plain Aquifer Mitigation Recovery and Restoration Agreement for 2004. The membership on the council will be expanded to address other areas: Bear River, Rathdrum Prairie Aquifer, Palouse Aquifer and others, which have serious ground or surface water conflicts. The council will also have nonvoting participants to include various interest groups to provide advice and counsel. The council may be divided into subcommittees. The council will meet at least once a month beginning on April 9, 2004.

Senator Schroeder inquired if the Palouse Aquifer, which involves cooperating with the State of Washington, would be considered by the interim committee. Chairman Noh stated the intention of the committee is to determine how to generate adequate ongoing revenue to make all the studies in the state and to look at potential legislative or administrative solutions to the problems.

Motion Motion by Senator Cameron that HCR 56 be sent to the floor with a do pass recommendation; seconded by Senator Brandt. Motion carried.
HJM 27 Representative Cuddy explained the joint memorial is to state the findings of the legislature and requesting the federal government conduct salmon survival evaluations in the 2004 spill year. He noted it is necessary to determine if it is possible to achieve the same or greater levels of survival and biological benefit to migrating fish as is currently achieved while reducing the amount of water spilled. The legislation is at the request of the Northwest Power and Conservation Council to assist in their efforts to attain a better method of water management in the Columbia River drainage system. He noted better management of water would provide for additional power generation while providing for fish passage but not require excessive water from the upper Columbia River drainage.

Representative Cuddy further informed the Committee that the State of Washington has expressed interest in taking 1,500,000 acre feet of water out of the Columbia River from below the entrance of the Snake River for irrigation purposes. He has a problem with Idaho supplying water for the irrigation of ground in Washington.

At the request of Senator Stennett, the history of the legislation was read to the committee by the committee secretary. Representative Cuddy stated the legislation was first proposed by the Northwest Power Council two weeks ago. The legislation was printed and then was reviewed by the Attorney General's office and the Governor. Delay of further proceedings on the legislation was due to that approval.

Motion Motion by Senator Brandt to send HJM 27 to the floor with a do pass recommendation; seconded by Senator Little. Motion carried.
H 848 Karl Dreher, Director, Department of Water Resources, informed the committee on H 848 which is as a result of the ongoing negotiations pursuant to the curtailment order. The legislation will require junior priority ground water users to provide mitigation to senior priority water users from hydraulically connected surface water sources beginning April 1, 2004, for the injury caused by ground water withdrawal and use. He noted the legislation is support for the agreement that covers a current gap. The agreement is three-way agreement between the state, executive branch, legislative branch, spring water users and ground water districts. The issue is there are individuals who have chosen not to be members of the ground water districts and are benefitting by default from the mitigation that ground water districts will be providing under the agreement or other agreements or other mitigation plans in the future. It is difficult for the ground water districts to maintain membership if only the membership are paying the costs for all. The legislation would apply to those not members of the ground water district who want to benefit from the mitigation the ground water district provides. The nonmember would make a written request to the ground water district and the ground water district shall assess an equitable portion of the mitigation costs. He noted there are individuals who are not members and who are not seeking to pay. The new legislation would apply to a junior priority ground water user which is causing material injury to a senior priority right, does not have an approved mitigation plan, is not in a water district with a water master and there is a nearby ground water district with an approved mitigation plan. If all those conditions are met, then that individual would be a nonmember participant in the nearest ground water district for the purposes of mitigation. This would then require a nonmember to participate when there is an approved mitigation plan that the ground water district has secured. Dreher further stated this would require the nonmember to pay their equitable portion of the mitigation costs. There are existing provisions for ground water districts to collect back assessments which could place a lien on the property.
Motion Motion by Senator Little to send H 848 to the floor with a do pass recommendation; seconded by Senator Cameron. Motion carried.
H 849 Dreher explained H 849 was introduced in the House because of the ongoing negotiations and the possible need to have all parties sign the agreement, in spite of conflicts. The legislation was drafted to enact the agreement as an action plan. The agreement was subsequently accepted by all parties, but some legislators felt it was necessary to proceed with H 849 as it would help settle any uncertainties that could exist from a challenge from someone who has not been involved in the negotiation process. Dreher stated he did not feel the H 849 was necessary or particularly helpful because the agreement has been signed.

Chairman Noh informed the committee a copy of the signed agreement will be provided to the membership of the committee. A copy is attached to the original minutes of the committee.

There being no further matters to come before the Committee, the meeting was adjourned at 4:05 p.m.