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H0153.........................................by RESOURCES AND CONSERVATION
WATER RENTAL - FLOW AUGMENTATION - Amends existing law to provide interim
authority for rental of water to augment flows for listed anadromous fish;
to provide legislative findings and intent; to authorize the U.S. Bureau of
Reclamation to lease storage and natural flow water rights through the
state water supply bank and local rental pools under specified conditions;
to provide that certain rental of water for flow augmentation is subject to
specified limitations and conditions; to provide criteria relating to
storage water released and any natural flow water rights leased or acquired
by the U.S. Bureau of Reclamation; to specify conditions on water rentals
and use; to provide that the state shall pursue a shaping agreement for
certain water released from Lake Cascade; to provide that the rental or use
of water shall be in compliance with specified requirements; to provide
that the state of Idaho shall not take specified actions to remedy or
address certain violations; to require the U.S. Department of Reclamation
to submit designated reports to the director of the Department of Water
Resources; to provide requirements relating to water rented or used from
above Hells Canyon Dam; to provide that water rented or used shall be
subject to specified terms and conditions; to specify limitations relating
to flow augmentation; to clarify limitations relating to specified
provisions; to provide conditions on effectiveness; to provide a
conditional sunset; and to provide legislative intent relating to
consideration of repeal under certain conditions.
02/10 House intro - 1st rdg - to printing
02/11 Rpt prt - to Res/Con
02/28 Rpt out - rec d/p - to 2nd rdg
03/01 2nd rdg - to 3rd rdg
03/02 3rd rdg - PASSED - 55-12-3
AYES -- Anderson, Andrus, Barraclough, Bastian, Bedke, Bell, Bilbao,
Black, Block, Boe, Bolz, Cannon, Chadderdon, Clark, Collins, Crow,
Deal, Denney, Edmunson, Ellsworth, Eskridge, Field(18), Field(23),
Garrett, Henbest, Henderson, Jaquet, Jones, Kemp, LeFavour, Martinez,
Mathews, Miller, Mitchell, Moyle, Nielsen, Nonini, Pasley-Stuart,
Pence, Raybould, Ring, Ringo, Rusche, Rydalch, Sayler, Shirley,
Skippen, Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Trail,
Wills, Mr. Speaker
NAYS -- Barrett, Bradford, Hart, Harwood, McGeachin, McKague,
Roberts, Sali, Schaefer, Shepherd(2), Shepherd(8), Wood
Absent and excused -- Bayer, Lake, Loertscher
Floor Sponsors - Stevenson & Raybould
Title apvd - to Senate
03/03 Senate intro - 1st rdg - to St Aff
03/14 Rpt out - rec d/p - to 2nd rdg
03/15 2nd rdg - to 3rd rdg
03/16 3rd rdg - PASSED - 29-5-0, 1 vacancy
AYES -- Andreason, Bunderson, Burkett, Burtenshaw, Cameron, Coiner,
Compton, Corder, Darrington, Davis, Gannon, Geddes, Goedde, Hill,
Jorgenson, Kelly, Keough, Langhorst, Little, Lodge, Malepeai, Marley,
McGee, Richardson, Schroeder, Stegner, Stennett, Werk, Williams
NAYS -- Brandt, Broadsword, McKenzie, Pearce, Sweet
Absent and excused -- (District 21 seat vacant)
Floor Sponsor - President Pro Tempore Geddes
Title apvd - to House
03/17 To enrol
03/18 Rpt enrol - Sp signed
03/21 Pres signed
03/22 To Governor
03/24 Governor signed
Session Law Chapter 149
Effective: 01/01/05
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature First Regular Session - 2005
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 153
BY RESOURCES AND CONSERVATION COMMITTEE
1 AN ACT
2 RELATING TO WATER; AMENDING SECTION 42-1763B, IDAHO CODE, TO PROVIDE INTERIM
3 AUTHORITY FOR RENTAL OF WATER TO AUGMENT FLOWS FOR LISTED ANADROMOUS FISH,
4 TO PROVIDE LEGISLATIVE FINDINGS AND INTENT, TO AUTHORIZE THE U.S. BUREAU
5 OF RECLAMATION TO LEASE STORAGE AND NATURAL FLOW WATER RIGHTS THROUGH THE
6 STATE WATER SUPPLY BANK AND LOCAL RENTAL POOLS UNDER SPECIFIED CONDITIONS,
7 TO PROVIDE THAT CERTAIN RENTAL OF WATER FOR FLOW AUGMENTATION IS SUBJECT
8 TO SPECIFIED LIMITATIONS AND CONDITIONS, TO PROVIDE CRITERIA RELATING TO
9 STORAGE WATER RELEASED AND ANY NATURAL FLOW WATER RIGHTS LEASED OR
10 ACQUIRED BY THE U.S. BUREAU OF RECLAMATION, TO SPECIFY CONDITIONS ON WATER
11 RENTALS AND USE, TO PROVIDE CORRECT TERMINOLOGY, TO PROVIDE THAT THE STATE
12 SHALL PURSUE A SHAPING AGREEMENT FOR CERTAIN WATER RELEASED FROM LAKE CAS-
13 CADE, TO PROVIDE THAT THE RENTAL OR USE OF CERTAIN WATER SHALL BE IN COM-
14 PLIANCE WITH SPECIFIED REQUIREMENTS, TO PROVIDE THAT THE STATE OF IDAHO
15 SHALL NOT TAKE SPECIFIED ACTIONS TO REMEDY OR ADDRESS CERTAIN VIOLATIONS,
16 TO REQUIRE THE U.S. BUREAU OF RECLAMATION TO SUBMIT DESIGNATED REPORTS TO
17 THE DIRECTOR OF THE DEPARTMENT OF WATER RESOURCES, TO PROVIDE REQUIREMENTS
18 RELATING TO WATER RENTED OR USED FROM ABOVE HELLS CANYON DAM, TO PROVIDE
19 THAT WATER RENTED OR USED SHALL BE SUBJECT TO SPECIFIED TERMS AND CONDI-
20 TIONS, TO SPECIFY LIMITATIONS RELATING TO FLOW AUGMENTATION, TO CLARIFY
21 LIMITATIONS RELATING TO SPECIFIED PROVISIONS, TO PROVIDE CONDITIONS ON
22 EFFECTIVENESS, TO PROVIDE A CONDITIONAL SUNSET AND TO PROVIDE LEGISLATIVE
23 INTENT RELATING TO CONSIDERATION OF REPEAL UNDER CERTAIN CONDITIONS; AND
24 DECLARING AN EMERGENCY AND PROVIDING RETROACTIVE APPLICATION.
25 Be It Enacted by the Legislature of the State of Idaho:
26 SECTION 1. That Section 42-1763B, Idaho Code, be, and the same is hereby
27 amended to read as follows:
28 42-1763B. INTERIM AUTHORITY FOR RENTAL OF STORAGE WATER TO AUGMENT FLOWS
29 DURING THE MIGRATION OF SNAKE RIVER SALMON FOR LISTED ANADROMOUS FISH. (1)
30 Legislative findings and intent regarding rental of storage water from by the
31 U.S. bureau of reclamation projects in the Snake River basin within Idaho to
32 augment lower Snake River flows during the migration of Snake River salmon for
33 anadromous fish listed under the endangered species act.
34 (a) The legislature finds that the U.S. bureau of reclamation desires
35 proposes to release up to four hundred twenty-seven thousand (427,000)
36 acre feet of leased or uncontracted water to augment salmon flows diverted
37 from the Snake River basin to reservoir storage above Lewiston, and to
38 lease or acquire up to sixty thousand (60,000) acre feet of consumptive
39 natural flow water rights diverted and consumed below Milner dam and above
40 Swan Falls dam from the mainstem of the Snake River to augment flows down-
41 stream of Hells Canyon dam during 2002, 2003 and 20045 and through Decem-
42 ber 31, 2034. The state of Idaho is experiencing serious drought condi-
43 tions and it is therefore uncertain whether four hundred twenty-seven
2
1 thousand (427,000) acre feet of this water will be available for rental
2 for flow augmentation purposes in all years. Nonetheless, tThe legislature
3 further finds that authorization of this legislation will facilitate ongo-
4 ing negotiations in the Snake River basin adjudication is necessary for
5 approval and implementation of the Snake River Water Rights Agreement of
6 2004 (Mediator's Term Sheet dated April 20, 2004, and submitted on that
7 date to the SRBA Court in SRBA Consolidated Subcase 03-10022 and SRBA Con-
8 solidated Subcase 67-13701, with all appendices to the document), as
9 approved, ratified, and confirmed by the 108th Congress of the United
10 States in the "Snake River Water Rights Act of 2004," Pub. L. No. 108-447
11 (H.R. 4818), 118 Stat. 3431 to 3441 (December 8, 2004). Therefore, the
12 legislature authorizes the U.S. bureau of reclamation to release lease
13 storage and natural flow water from its projects rights through the state
14 water supply bank and local rental pools under the limited conditions of
15 this section. in 2002, 2003 and 2004. Any rentals of water for flow aug-
16 mentation under any other provision of law, including section 42-108A,
17 Idaho Code, shall be subject to the limitations and conditions of this
18 section and the Snake River Water Rights Agreement of 2004.
19 (b) It is the intent of the legislature to promptly consider the repeal
20 of this section in the event that the provisions of the supplemental bio-
21 logical opinion issued by the national marine fisheries service on January
22 24, 2002, related to the provision of flows for salmon from the Snake
23 River basin above Brownlee Reservoir are modified or declared arbitrary,
24 capricious or otherwise unlawful or set aside by any federal court.
25 (2) Rental of storage water from by the U.S. bureau of reclamation. stor-
26 age.
27 (a) Notwithstanding the legislative approval required in section 42-108,
28 Idaho Code, any storage water released from U.S. bureau of reclamation
29 reservoirs and any natural flow water rights leased or acquired by the
30 bureau within the state of Idaho for use to augment river flows during the
31 migration of Snake River salmon listed anadromous fish pursuant to this
32 section must be rented through the water bank operated by the Idaho water
33 resource board pursuant to sections 42-1761 through 42-1764, Idaho Code,
34 or, in the case of storage water releases, through local water rental com-
35 mittees, created pursuant to section 42-1765, Idaho Code, under their
36 respective water bank rules.
37 (b) For any rental of water pursuant to this section, the director shall
38 not be required to determine under section 42-1763, Idaho Code, whether
39 the water supply is sufficient for the purpose for which it is sought,
40 whether the rental would cause the use of water to be enlarged beyond that
41 authorized under the water right to be rented, whether such use is in the
42 public interest, or whether such use is consistent with the factors enu-
43 merated under subsection (3) of section 42-401, Idaho Code.
44 (3) Conditions on storage water rentals.
45 (a) Any storage water made available under this section shall be obtained
46 only from willing lessors. Any water rented under this section from reser-
47 voirs sources located within a basin having a local rental pool committee
48 established pursuant to section 42-1765, Idaho Code, or section 42-1765A,
49 Idaho Code, shall be rented pursuant to this section only through the
50 local rental pool committee.
51 (b) Storage water made available under this section shall be limited to
52 four hundred twenty-seven thousand (427,000) acre feet annually, and natu-
53 ral consumptive flow water shall be limited to not more than the sixty
54 thousand (60,000) acre feet annually that accrue to natural flow water
55 rights acquired by the U.S. bureau of reclamation pursuant to the terms of
3
1 the Snake River Water Rights Agreement of 2004. These releases from stor-
2 age amounts shall be reduced by other water the U.S. bureau of reclamation
3 provides for flow augmentation of salmon flows for listed anadromous fish
4 from the Snake River and its tributaries basin above Lewiston.
5 (c) In no event shall the release of water under this section cause the
6 water surface of Lake Cascade Reservoir to be below the elevation required
7 to maintain a storage volume of three hundred thousand (300,000) acre
8 feet, fifty thousand (50,000) acre feet of which is dead space, which is
9 currently estimated to be at an elevation of four thousand eight hundred
10 nine and two-tenths (4,809.2) feet. In addition, the state of Idaho shall
11 pursue a shaping agreement for any uncontracted water released from Lake
12 Cascade under this section.
13 (d) The rental or use of water under this section shall be in compliance
14 with any permit, applicable water quality rule and regulation or other
15 requirements of the clean water act, shall not cause jeopardy to other
16 species in the state of Idaho, and shall not result in significant adverse
17 impacts to recreational uses of the waters of the Snake River basin in
18 Idaho. The state of Idaho shall not require any restriction, modification,
19 or condition on the diversion, storage, use, discharge of water, or land
20 use to remedy or address violations of water quality standards or other
21 clean water act requirements to the extent the rental or use of water by
22 the U.S. bureau of reclamation under this section causes the violations.
23 (e) The U.S. bureau of reclamation shall submit a report to the director
24 by January 15 of each year describing the time, volume and purpose of
25 storage water released provided for salmon purposes listed anadromous fish
26 from the Snake River basin above Lewiston during the past year and shall
27 report on the plan for releases for the spring and summer chinook by April
28 1 and on the plan for releases for the fall chinook by July 15 of each
29 year.
30 (ef) All storage water rented from or used by the U.S. bureau of reclama-
31 tion reservoirs under this section from above Hells Canyon dam must be
32 used for power production purposes within the state of Idaho.
33 (g) All water rented or used by the U.S. bureau of reclamation under this
34 section shall be subject to the terms and conditions contained in the
35 Snake River Flow Component of the Snake River Water Rights Agreement of
36 2004.
37 (fh) Nothing herein shall entitle the U.S. bureau of reclamation to rent
38 storage or use water for flow augmentation upon termination or expiration
39 of the permission given in this section.
40 (4) Nothing in this section shall be construed to alter, or authorize the
41 U.S. bureau of reclamation to modify in any way the its existing contractual
42 obligations, of the U.S. bureau of reclamation or to constitute a finding by
43 the legislature that the rental or use of storage water or natural flow water
44 rights for flow augmentation of flows for salmon migration listed anadromous
45 fish or any other species is a beneficial use of water, that it is in the pub-
46 lic interest, or whether such use injures existing water rights.
47 (5) This section shall not become effective until the director certifies
48 to the governor that the U.S. bureau of reclamation's applications to transfer
49 water right numbers 4616, 4617, 4618, 4623, 4625, 4626, 4627, 4628, 4629,
50 4630, 4631, 4632, 4633 and 4636, and to amend water right permit numbers
51 25-07004 and 63-3618 will be withdrawn, or held in abeyance until July 1, 2005
52 while this section is in effect, and the governor further issues a proclama-
53 tion certifying that all conditions for the effectiveness of the Snake River
54 Water Rights Agreement of 2004 have been satisfied.
55 (6) On and after January 1, 2005, this act shall be null, void and of no
4
1 force and effect. This act shall be null, void and of no force and effect upon
2 the expiration or termination of the Snake River Flow Component of the Snake
3 River Water Rights Agreement of 2004. In addition, it is the intent of the
4 legislature to consider the repeal of this section in the event that any of
5 the provisions of the Snake River Flow Component of the Snake River Water
6 Rights Agreement of 2004 are modified or declared arbitrary, capricious or
7 otherwise unlawful or set aside by any federal court or there is a finding of
8 jeopardy by any federal court in regard to any biological opinions for proj-
9 ects operated by the U.S. bureau of reclamation in the Snake River basin in
10 Idaho.
11 SECTION 2. An emergency existing therefor, which emergency is hereby
12 declared to exist, this act shall be in full force and effect on and after its
13 passage and approval, and retroactively to January 1, 2005.
STATEMENT OF PURPOSE
RS 14888C3
This legislation would implement the Snake River Flow Component
of the Snake River Water Rights Agreement of 2004 by extending
the interim authority for rental of water to augment flows for
anadromous fish listed under the endangered species act for the
term of the Agreement. All water rentals must be from willing
sellers and must be secured through the state water supply bank
and local rental pools. The total amount of water provided from
all sources in the Snake River Basin above Lewiston, including
storage and natural flow water rights, may not exceed 487,000
acre-feet in any single year. The legislation recognizes that,
because of current drought conditions, this amount of water may
not be available in all years. The legislation will not become
effective until all conditions for effectiveness of the Snake
River Water Rights Agreement of 2004 have been satisfied. The
legislative authorization automatically terminates upon
expiration or termination of the Snake River Flow Component of
the Agreement, and may also be repealed by the legislature if the
biological opinions issued for bureau of reclamation projects in
Idaho are set-aside or declared arbitrary or capricious by any
federal court, or a court finds that any of the projects result
in jeopardy to any listed species.
FISCAL IMPACT
There will be no impact to the general fund. Federal
appropriations for the rental of water by the U.S. bureau of
reclamation will be paid to water right holders that place their
water in the State water supply bank or local rental pools,
pursuant to legislation approved by congress to ratify the Snake
River Water Rights Agreement of 2004. A portion of the rental
fee will be collected by the State and/or local rental committees
as an administrative fee, with the balance going to the water
right holder.
Contact
Names:
Representative Bruce Newcomb Senator Bob Geddes
Representative John Stevenson Senator Don Burtenshaw
Representative Dell Raybould Senator Gary Schroeder
Representative Scott Bedke Senator Stan Williams
Representative Wendy Jaquet Senator Clint Stennett
Phone: (208) 332-1000
STATEMENT OF PURPOSE/FISCAL NOTE H 153