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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 STORAGEWATER TO AUGMENT FLOWS 29 DURING THE MIGRATION OF SNAKE RIVER SALMONFOR LISTED ANADROMOUS FISH. (1) 30 Legislative findings and intent regarding rental of storagewater fromby the 31 U.S. bureau of reclamation projectsin the Snake River basin within Idaho to 32 augment lower Snake River flows during the migration of Snake River salmonfor 33 anadromous fish listed under the endangered species act. 34 (a)The legislature finds that the U.S. bureau of reclamation desires35 proposes to release up to four hundred twenty-seven thousand (427,000) 36 acre feet of leased or uncontracted water to augment salmon flowsdiverted 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 and200 45 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-seven2 1 thousand (427,000) acre feet ofthis 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 adjudicationis 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 releaselease 13 storage and natural flow water from its projectsrights 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 repeal20 of this section in the event that the provisions of the supplemental bio-21 logical opinion issued by the national marine fisheries service on January22 24, 2002, related to the provision of flows for salmon from the Snake23 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 storagewater fromby 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 reclamation29 reservoirsand any natural flow water rights leased or acquired by the 30 bureau within the state of Idaho for use to augment river flows during the31 migration of Snake River salmonlisted 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 waterrental 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 storagewater rentals. 45 (a) Any storagewater made available under this section shall be obtained 46 only from willing lessors. Any water rented under this section from reser-47 voirssources located within a basin having a local rental poolcommittee 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 poolcommittee. 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 ageamounts shall be reduced by other water the U.S. bureau of reclamation 3 provides for flow augmentation of salmon flowsfor listed anadromous fish 4 from the Snake River and its tributariesbasin above Lewiston. 5 (c) In no event shall the release of water under this section cause the 6 water surface of Lake Cascade Reservoirto 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 storagewater releasedprovided for salmon purposeslisted anadromous fish 26 from the Snake River basin above Lewiston during the past year and shall 27 report on the plan for releases forthe spring and summer chinook by April 28 1 and on the plan for releases forthe fall chinook by July 15 of each 29 year. 30 ( ef) All storagewater rented fromor used by the U.S. bureau of reclama- 31 tion reservoirsunder 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 storageor 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 theits existing contractual 42 obligations, of the U.S. bureau of reclamationor 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 flowsfor salmon migrationlisted 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, 200552 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 no4 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