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H0666.....................................................by WAYS AND MEANS
STORAGE WATER RENTAL - FLOW AUGMENTATION - Amends existing law regarding
the rental of storage water to augment flows during the migration of Snake
River Salmon; to revise legislative intent; to provide for annual reports
of the United States Bureau of Reclamation; to provide for a report on the
plan for releases for the spring and summer Chinook by April 1 and on the
plan for releases for the fall Chinook by July 15 of each hear; and to move
the sunset clause ahead three years.
02/21 House intro - 1st rdg - to printing
02/22 Rpt prt - to Res/Con
02/28 Rpt out - rec d/p - to 2nd rdg
03/01 2nd rdg - to 3rd rdg
03/04 3rd rdg - PASSED - 62-2-6
AYES -- Aikele, Barraclough, Bedke, Bell, Bieter, Black, Block, Boe,
Bolz, Bradford, Bruneel, Callister, Campbell, Clark, Collins, Cuddy,
Deal, Denney, Ellis, Ellsworth, Eskridge, Field(20), Gagner, Hadley,
Hammond, Harwood, Henbest, Higgins, Hornbeck, Jaquet, Jones,
Kellogg(Duncan), Kendell, Kunz, Lake, Loertscher, Mader, Martinez,
McKague, Meyer, Montgomery, Moyle, Pearce, Pischner, Pomeroy,
Raybould, Ridinger, Roberts, Robison, Sali, Schaefer, Sellman,
Shepherd, Smith(33), Smylie, Stevenson, Stone, Tilman, Trail,
Wheeler, Wood, Mr. Speaker
NAYS -- Barrett, Langford
Absent and excused -- Crow, Field(13), Gould, Mortensen, Smith(23),
Young
Floor Sponsor - Wheeler
Title apvd - to Senate
03/05 Senate intro - 1st rdg - to Res/Env
03/11 Rpt out - rec d/p - to 2nd rdg
03/12 2nd rdg - to 3rd rdg
03/15 3rd rdg - PASSED - 35-0-0
AYES -- Andreason, Boatright, Branch Brandt, Bunderson, Burtenshaw,
Cameron, Darrington, Davis, Deide, Dunklin, Frasure, Geddes, Goedde,
Hawkins, Hill, Ingram, Ipsen, Keough, King-Barrutia, Little, Lodge,
Marley, Noh, Richardson, Risch, Sandy, Schroeder, Sims, Sorensen,
Stegner, Stennett, Thorne, Wheeler, Williams
NAYS -- None
Absent and excused -- None
Floor Sponsor - Noh
Title apvd - to House
03/15 To enrol
Rpt enrol - Sp signed - Pres signed
03/18 To Governor
03/27 Governor signed
Session Law Chapter 349
Effective: 01/01/02
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature Second Regular Session - 2002
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 666
BY WAYS AND MEANS COMMITTEE
1 AN ACT
2 RELATING TO INTERIM AUTHORITY FOR RENTAL OF STORAGE WATER TO AUGMENT FLOWS
3 DURING THE MIGRATION OF SNAKE RIVER SALMON; AMENDING SECTION 42-1763B,
4 IDAHO CODE, TO REVISE LEGISLATIVE INTENT, TO PROVIDE FOR ANNUAL REPORTS OF
5 THE UNITED STATES BUREAU OF RECLAMATION, TO PROVIDE FOR REPORTS ON THE
6 PLAN FOR RELEASES FOR THE SPRING AND SUMMER CHINOOK BY APRIL 1 AND ON THE
7 PLAN FOR RELEASES FOR THE FALL CHINOOK BY JULY 15 OF EACH YEAR AND TO MOVE
8 THE SUNSET CLAUSE AHEAD THREE YEARS; DECLARING AN EMERGENCY AND PROVIDING
9 RETROACTIVE APPLICATION.
10 Be It Enacted by the Legislature of the State of Idaho:
11 SECTION 1. That Section 42-1763B, Idaho Code, be, and the same is hereby
12 amended to read as follows:
13 42-1763B. INTERIM AUTHORITY FOR RENTAL OF STORAGE WATER TO AUGMENT FLOWS
14 DURING THE MIGRATION OF SNAKE RIVER SALMON. (1) Legislative findings and
15 intent regarding rental of storage water from U.S. bureau of reclamation proj-
16 ects in the Snake River basin within Idaho to augment lower Snake River flows
17 during the migration of Snake River salmon.
18 (a) The legislature finds that the U.S. bureau of reclamation desires to
19 release up to four hundred twenty-seven thousand (427,000) acre feet of
20 water to augment salmon flows in 2001 during 2002, 2003 and 2004. The
21 state of Idaho is experiencing serious drought conditions in 2001 and it
22 is therefore unlikely that uncertain whether four hundred twenty-seven
23 thousand (427,000) acre feet of water will be available for rental for
24 flow augmentation purposes. Nonetheless, the legislature finds that autho-
25 rization of this legislation will facilitate ongoing negotiations in the
26 Snake River basin adjudication. Therefore, the legislature authorizes the
27 U.S. bureau of reclamation to release water from its projects under the
28 limited conditions of this section in 2001 2002, 2003 and 2004.
29 (b) It is the intent of the legislature to promptly consider the repeal
30 of this section in the event that the provisions of the supplemental bio-
31 logical opinion issued by the national marine fisheries service on January
32 24, 2002, related to the provision of flows for salmon from the Snake
33 River basin above Brownlee Reservoir are modified or declared arbitrary,
34 capricious or otherwise unlawful or set aside by any federal court.
35 (2) Rental of storage water from U.S. bureau of reclamation storage.
36 (a) Notwithstanding the legislative approval required in section 42-108,
37 Idaho Code, any storage water release from U.S. bureau of reclamation res-
38 ervoirs within the state of Idaho for use to augment river flows during
39 the migration of Snake River salmon pursuant to this section must be
40 rented through the water bank operated by the Idaho water resource board
41 pursuant to sections 42-1761 through 42-1764, Idaho Code, or through local
42 water rental committees, created pursuant to section 42-1765, Idaho Code,
43 under their respective water bank rules.
2
1 (b) For any rental of water pursuant to this section, the director shall
2 not be required to determine under section 42-1763, Idaho Code, whether
3 the water supply is sufficient for the purpose for which it is sought,
4 whether the rental would cause the use of water to be enlarged beyond that
5 authorized under the water right to be rented, whether such use is in the
6 public interest, or whether such use is consistent with the factors enu-
7 merated under subsection (3) of section 42-401, Idaho Code.
8 (3) Conditions on storage water rentals.
9 (a) Any storage water made available under this section shall be obtained
10 only from willing lessors. Any water rented under this section from reser-
11 voirs located within a basin having a local rental pool committee estab-
12 lished pursuant to section 42-1765, Idaho Code, shall be rented pursuant
13 to this section only through the local rental pool committee.
14 (b) Storage water made available under this section shall be limited to
15 four hundred twenty-seven thousand (427,000) acre feet annually. These
16 releases from storage shall be reduced by other water the U.S. bureau of
17 reclamation provides for augmentation of salmon flows from the Snake River
18 and its tributaries.
19 (c) In no event shall the release of water under this section cause the
20 water surface of Cascade Reservoir to be below the elevation required to
21 maintain a storage volume of three hundred thousand (300,000) acre feet,
22 fifty thousand (50,000) acre feet of which is dead space, which is cur-
23 rently estimated to be at an elevation of four thousand eight hundred nine
24 and two-tenths (4,809.2) feet.
25 (d) The U.S. bureau of reclamation shall report on the plan for releases
26 for the spring and summer chinook prior to such releases and on the plan
27 for releases for the fall chinook by July 15, 2001. The U.S. bureau of
28 reclamation shall submit a report to the director by January 15, 2002, of
29 each year describing the time, volume and purpose of storage water
30 released for salmon purposes during the past year 2001 and shall report on
31 the plan for releases for the spring and summer chinook by April 1 and on
32 the plan for releases for the fall chinook by July 15 of each year.
33 (e) All storage water rented from U.S. bureau of reclamation reservoirs
34 under this section must be used for power production purposes within the
35 state of Idaho.
36 (f) Nothing herein shall entitle the U.S. bureau of reclamation to rent
37 storage water upon termination or expiration of the permission given in
38 this section.
39 (4) Nothing in this section shall be construed to alter in any way the
40 existing contractual obligations of the U.S. bureau of reclamation or to con-
41 stitute a finding by the legislature that the rental or use of storage water
42 for augmentation of flows for salmon migration is a beneficial use of water,
43 that it is in the public interest, or whether such use injures existing water
44 rights.
45 (5) This section shall not become effective until the director certifies
46 to the governor that the U.S. bureau of reclamation's applications to transfer
47 water right numbers 4616, 4617, 4618, 4623, 4625, 4626, 4627, 4628, 4629,
48 4630, 4631, 4632, 4633 and 4636, and to amend water right permit numbers
49 25-07004 and 63-3618 will be held in abeyance until July 1, 20015.
50 (6) On and after January 1, 20025, this act shall be null, void and of no
51 force and effect.
52 SECTION 2. An emergency existing therefor, which emergency is hereby
53 declared to exist, this act shall be in full force and effect on and after its
54 passage and approval, and retroactively to January 1, 2002.
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STATEMENT OF PURPOSE
RS 12122
The purpose of this legislation is to extend Section 42-1763B, Idaho
Code, which sunsetted on January 1, 2002. The statute would be
extended for three years, thereby temporarily authorizing the U.S.
Bureau of Reclamation (Bureau) to release up to four hundred twenty-
seven thousand (427,000) acre feet of water from its projects during
2002, 2003, 2004, under limited conditions. The three year extension
would match the three year period of the supplemental biological
opinion issued for the Bureau s Upper Snake River projects by the
National Marine Fisheries Service (NMFS) on January 24, 2002. Under
this legislation, all water stored in and released from Bureau owned
or operated projects must be rented through, and pursuant to the rules
and procedures of, the State Water Bank and local rental committees.
In addition, the statutory requirement that the Director of the Idaho
Department of Water Resources determine whether injury to existing
water rights will occur as a result of the authorized releases is not
waived by the statute. Water made available under the statute may only
be obtained from willing lessors. Given the serious drought conditions
being experienced in the state, it is uncertain whether 427,000 acre
feet will be available each year. The Legislature intends to promptly
consider the repeal of this legislation if the supplemental biological
opinion is modified or set aside.
The legislation would provide time for additional, related matters
which may affect the issue of providing water for flow augmentation to
come to a conclusion. The ongoing mediation efforts in the Snake River
Basin Adjudication would be facilitated and , it is hoped, brought to
a timely and successful conclusion. Judicial and administrative
developments regarding the listing status of Snake and Columbia River
Basin salmon and steelhead species, may alter the need for flow
augmentation in the future. A recent Ninth Circuit Court decision
involving the Arizona Cattle Association calls into question the need
for an incidental take permit under the Endangered Species Act when
the impacts of an action on a listed species are indirect and cannot
reasonable be demonstrated by the federal fisheries agencies. These
and other matters should be fully examined, in order to determine how
they may affect the issue of future releases of water from Bureau
projects in the Upper Snake River Basin for flow augmentation.
FISCAL IMPACT
None.
Contact
Name: Norm Semanko, Idaho Water Users Association
Phone: (208) 344-6690
STATEMENT OF PURPOSE/FISCAL NOTE H 666