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H0399.....................................................by WAYS AND MEANS WATER - Amends existing law (trailer bill to H 153) to provide a limitation relating to the amount of natural consumptive flow water leased by the U.S. Bureau of Reclamation; and to provide for the Governor's certification that certain biological opinions have been issued. 03/31 House intro - 1st rdg - to printing 03/31 Rpt prt - to 2nd rdg Rls susp - PASSED - 62-4-4 AYES -- Anderson, Andrus, Barraclough, Bastian, Bedke, Bell, Bilbao(Reynoldson), Black, Block, Boe, Bolz, Bradford, Cannon, Chadderdon, Collins, Crow, Deal, Denney, Edmunson, Ellsworth, Eskridge, Field(18), Field(23), Garrett, Hart, Henbest, Henderson, Jones, Kemp, Lake, LeFavour, Martinez, Mathews, McGeachin, McKague, Miller, Mitchell, Moyle, Nielsen, Nonini, Pasley-Stuart, Pence, Ring, Ringo, Roberts, Rusche, Rydalch, Sayler, Schaefer, Shepherd(2), Shepherd(8), Shirley, Skippen, Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Trail, Wills, Wood, Mr. Speaker NAYS -- Barrett, Harwood, Loertscher, Sali Absent and excused -- Bayer, Clark, Jaquet, Raybould Floor Sponsor - Stevenson Title apvd - to Senate 04/01 Senate intro - 1st rdg - to Res/Env 04/04 Rpt out - rec d/p - to 2nd rdg 2nd rdg - to 3rd rdg 04/06 3rd rdg - PASSED - 29-4-2 AYES -- Brandt, Broadsword, Bunderson, Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis, Fulcher(Fulcher), Geddes, Goedde, Hill, Jorgenson, Keough, Little, Lodge, Malepeai, Marley, McGee, McKenzie, Pearce, Richardson, Schroeder, Stegner, Stennett, Sweet, Williams NAYS -- Burkett, Kelly, Langhorst, Werk Absent and excused -- Andreason, Gannon Floor Sponsor - Burtenshaw Title apvd - to House 04/06 To enrol 04/07 Rpt enrol - Sp/Pres signed - To Governor 04/14 Governor signed Session Law Chapter 400 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. 399 BY WAYS AND MEANS COMMITTEE 1 AN ACT 2 RELATING TO WATER; AMENDING SECTION 42-1763B, IDAHO CODE, AS AMENDED BY SEC- 3 TION 1, HOUSE BILL NO. 153, ENACTED BY THE FIRST REGULAR SESSION OF THE 4 FIFTY-EIGHTH IDAHO LEGISLATURE, TO PROVIDE A LIMITATION RELATING TO THE 5 AMOUNT OF NATURAL CONSUMPTIVE FLOW WATER LEASED BY THE U.S. BUREAU OF REC- 6 LAMATION AND TO PROVIDE FOR THE GOVERNOR'S CERTIFICATION THAT CERTAIN BIO- 7 LOGICAL OPINIONS HAVE BEEN ISSUED; DECLARING AN EMERGENCY AND PROVIDING 8 FOR RETROACTIVE APPLICATION. 9 Be It Enacted by the Legislature of the State of Idaho: 10 SECTION 1. That Section 42-1763B, Idaho Code, as amended by Section 1, 11 House Bill No. 153, enacted by the First Regular Session of the Fifty-eighth 12 Idaho Legislature, be, and the same is hereby amended to read as follows: 13 42-1763B. INTERIM AUTHORITY FOR RENTAL OF WATER TO AUGMENT FLOWS FOR 14 LISTED ANADROMOUS FISH. (1) Legislative findings and intent regarding rental 15 of water by the U.S. bureau of reclamation in the Snake River basin within 16 Idaho to augment lower Snake River flows for anadromous fish listed under the 17 endangered species act. The legislature finds that the U.S. bureau of reclama- 18 tion proposes to release up to four hundred twenty-seven thousand (427,000) 19 acre feet of leased or uncontracted water diverted from the Snake River basin 20 to reservoir storage above Lewiston, and to lease or acquire up to sixty thou- 21 sand (60,000) acre feet of consumptive natural flow water rights diverted and 22 consumed below Milner dam and above Swan Falls dam from the mainstem of the 23 Snake River to augment flows downstream of Hells Canyon dam during 2005 and 24 through December 31, 2034. The state of Idaho is experiencing serious drought 25 conditions and it is therefore uncertain whether this water will be available 26 for rental for flow augmentation purposes in all years. The legislature fur- 27 ther finds that authorization of this legislation is necessary for approval 28 and implementation of the Snake River Water Rights Agreement of 2004 29 (Mediator's Term Sheet dated April 20, 2004, and submitted on that date to the 30 SRBA Court in SRBA Consolidated Subcase 03-10022 and SRBA Consolidated Subcase 31 67-13701, with all appendices to the document), as approved, ratified, and 32 confirmed by the 108th Congress of the United States in the "Snake River Water 33 Rights Act of 2004," Pub. L. No. 108-447 (H.R. 4818), 118 Stat. 3431 to 3441 34 (December 8, 2004). Therefore, the legislature authorizes the U.S. bureau of 35 reclamation to lease storage and natural flow water rights through the state 36 water supply bank and local rental pools under the limited conditions of this 37 section. Any rentals of water for flow augmentation under any other provision 38 of law, including section 42-108A, Idaho Code, shall be subject to the limita- 39 tions and conditions of this section and the Snake River Water Rights Agree- 40 ment of 2004. 41 (2) Rental of water by the U.S. bureau of reclamation. 42 (a) Notwithstanding the legislative approval required in section 42-108, 43 Idaho Code, any storage water released and any natural flow water rights 2 1 leased or acquired by the bureau within the state of Idaho for listed 2 anadromous fish pursuant to this section must be rented through the water 3 bank operated by the Idaho water resource board pursuant to sections 4 42-1761 through 42-1764, Idaho Code, or, in the case of storage water 5 releases, through local rental committees, created pursuant to section 6 42-1765, Idaho Code, under their respective water bank rules. 7 (b) For any rental of water pursuant to this section, the director shall 8 not be required to determine under section 42-1763, Idaho Code, whether 9 the water supply is sufficient for the purpose for which it is sought, 10 whether the rental would cause the use of water to be enlarged beyond that 11 authorized under the water right to be rented, whether such use is in the 12 public interest, or whether such use is consistent with the factors enu- 13 merated under subsection (3) of section 42-401, Idaho Code. 14 (3) Conditions on water rentals. 15 (a) Any water made available under this section shall be obtained only 16 from willing lessors. Any water rented under this section from sources 17 located within a basin having a local rental committee established pursu- 18 ant to section 42-1765, Idaho Code, or section 42-1765A, Idaho Code, shall 19 be rented pursuant to this section only through the local rental commit- 20 tee. 21 (b) Storage water made available under this section shall be limited to 22 four hundred twenty-seven thousand (427,000) acre feet annually, and natu- 23 ral consumptive flow water shall be limited to not more than the sixty 24 thousand (60,000) acre feet annually, that accrue to natural flow water 25 rights, acquired or leased by the U.S. bureau of reclamation pursuant to 26 the terms of the Snake River Water Rights Agreement of 2004. These amounts 27 shall be reduced by other water the U.S. bureau of reclamation provides 28 for flow augmentation for listed anadromous fish from the Snake River 29 basin above Lewiston. 30 (c) In no event shall the release of water under this section cause the 31 water surface of Lake Cascade to be below the elevation required to main- 32 tain a storage volume of three hundred thousand (300,000) acre feet, fifty 33 thousand (50,000) acre feet of which is dead space, which is currently 34 estimated to be at an elevation of four thousand eight hundred nine and 35 two-tenths (4,809.2) feet. In addition, the state of Idaho shall pursue a 36 shaping agreement for any uncontracted water released from Lake Cascade 37 under this section. 38 (d) The rental or use of water under this section shall be in compliance 39 with any permit, applicable water quality rule and regulation or other 40 requirements of the clean water act, shall not cause jeopardy to other 41 species in the state of Idaho, and shall not result in significant adverse 42 impacts to recreational uses of the waters of the Snake River basin in 43 Idaho. The state of Idaho shall not require any restriction, modification, 44 or condition on the diversion, storage, use, discharge of water, or land 45 use to remedy or address violations of water quality standards or other 46 clean water act requirements to the extent the rental or use of water by 47 the U.S. bureau of reclamation under this section causes the violations. 48 (e) The U.S. bureau of reclamation shall submit a report to the director 49 by January 15 of each year describing the time, volume and purpose of 50 water provided for listed anadromous fish from the Snake River basin above 51 Lewiston during the past year and shall report on the plan for the spring 52 and summer chinook by April 1 and on the plan for the fall chinook by July 53 15 of each year. 54 (f) All water rented or used by the U.S. bureau of reclamation under this 55 section from above Hells Canyon dam must be used for power production pur- 3 1 poses within the state of Idaho. 2 (g) All water rented or used by the U.S. bureau of reclamation under this 3 section shall be subject to the terms and conditions contained in the 4 Snake River Flow Component of the Snake River Water Rights Agreement of 5 2004. 6 (h) Nothing herein shall entitle the U.S. bureau of reclamation to rent 7 or use water for flow augmentation upon termination or expiration of the 8 permission given in this section. 9 (4) Nothing in this section shall be construed to alter, or authorize the 10 U.S. bureau of reclamation to modify in any way its existing contractual obli- 11 gations, or to constitute a finding by the legislature that the rental or use 12 of storage water or natural flow water rights for flow augmentation for listed 13 anadromous fish or any other species is a beneficial use of water, that it is 14 in the public interest, or whether such use injures existing water rights. 15 (5) This section shall not become effective until the director certifies 16 to the governor that the U.S. bureau of reclamation's applications to transfer 17 water right numbers 4616, 4617, 4618, 4623, 4625, 4626, 4627, 4628, 4629, 18 4630, 4631, 4632, 4633 and 4636, and to amend water right permit numbers 19 25-07004 and 63-3618 will be withdrawn, or held in abeyance while this section 20 is in effect, and the governor further issues a proclamation certifying that21 all conditions for the effectiveness ofcertifies that the biological opinions 22 required by the Snake River Water Rights Agreement of 2004 have been satisfied23 issued. 24 (6) This act shall be null, void and of no force and effect upon the 25 expiration or termination of the Snake River Flow Component of the Snake River 26 Water Rights Agreement of 2004. In addition, it is the intent of the legisla- 27 ture to consider the repeal of this section in the event that any of the pro- 28 visions of the Snake River Flow Component of the Snake River Water Rights 29 Agreement of 2004 are modified or declared arbitrary, capricious or otherwise 30 unlawful or set aside by any federal court or there is a finding of jeopardy 31 by any federal court in regard to any biological opinions for projects oper- 32 ated by the U.S. bureau of reclamation in the Snake River basin in Idaho. 33 SECTION 2. An emergency existing therefor, which emergency is hereby 34 declared to exist, this act shall be in full force and effect on and after its 35 passage and approval, and retroactively to January 1, 2005.
STATEMENT OF PURPOSE RS 15232 The purpose of this legislation is to make a technical correction to HB 153, which implements the Snake River Flow Component of the Snake River Water Rights Agreement of 2004. HB 153 provides that it would not become effective until the Governor issues a proclamation certifying that all conditions for the effectiveness of the Snake River Water Rights Agreement of 2004 have been satisfied. Because the Snake River Water Rights Agreement of 2004 links the effectiveness of this legislation with issuance of the biological opinions, HB 153 should have provided that the legislation would become effective upon certification by the Governor that the biological opinions had been issued. In addition, the words "or leased" were inadvertently omitted from one sentence of HB 153. FISCAL NOTE There will be no fiscal impact to the general fund. Contact Name: Rep. Dell Raybould Rep. John A. Stevenson Sen. Don Burtenshaw Sen. Stan Williams Phone: (208) 332-1000 STATEMENT OF PURPOSE/FISCAL NOTE H 399