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S1116..........................................by RESOURCES AND ENVIRONMENT
MINIMUM STREAM FLOW - Amends existing law relating to water to provide for
applications to appropriate water from the water supply bank from certain
basins for minimum stream flow purposes.
02/14 Senate intro - 1st rdg - to printing
02/15 Rpt prt - to Res/Env
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature First Regular Session - 2005
IN THE SENATE
SENATE BILL NO. 1116
BY RESOURCES AND ENVIRONMENT COMMITTEE
1 AN ACT
2 RELATING TO WATER; AMENDING SECTION 42-1503, IDAHO CODE, TO PROVIDE FOR APPLI-
3 CATIONS TO APPROPRIATE WATER FROM THE WATER SUPPLY BANK FROM CERTAIN
4 BASINS FOR MINIMUM STREAM FLOW PURPOSES AND TO MAKE TECHNICAL CORRECTIONS.
5 Be It Enacted by the Legislature of the State of Idaho:
6 SECTION 1. That Section 42-1503, Idaho Code, be, and the same is hereby
7 amended to read as follows:
8 42-1503. APPLICATION TO APPROPRIATE -- PROCESS -- JUDICIAL REVIEW. When-
9 ever the board desires to appropriate a minimum stream flow of the unappropri-
10 ated waters of any stream or water supplied from the water supply bank from
11 basins affecting the eastern Snake plain aquifer for minimum stream flow pur-
12 poses, it shall submit an application to the director. Such application shall
13 be made upon forms to be furnished by the director and shall include:
14 (a) The name of the stream and legal description of the point on the
15 stream where the minimum stream flow is proposed to be appropriated; and
16 determined;
17 (b) The minimum stream flow proposed;
18 (c) The purpose for which the minimum stream flow appropriation is pro-
19 posed to be made;
20 (d) The period of time or season of the year during which said appropria-
21 tion is proposed; and
22 (e) Such other information as shall be required by the form furnished by
23 the director.
24 Upon the receipt of an application filed under the provisions of this act,
25 the director shall forward a copy thereof to the departments of fish and game,
26 environmental quality, parks and recreation, and any other public entity
27 likely to have an interest or knowledge in the matter. The director shall also
28 prepare a notice describing the proposed appropriation of minimum stream flow
29 and cause said notice to be published once each week in two (2) consecutive
30 weekly issues of a newspaper published within the county where the appropria-
31 tion of minimum stream flow is proposed, if there is such newspaper, otherwise
32 in a newspaper of general circulation within the county. The director may also
33 give other notice of the proposed appropriation in such manner and to such
34 persons or organizations as he may determine. Such notice shall specify the
35 time and place for a public hearing to be held concerning the proposed appro-
36 priation of minimum stream flow. Such hearing shall be held in accordance with
37 the provisions of section 42-1701A(1) and (2), Idaho Code. The director shall
38 have power to administer oaths and to require the attendance of such witnesses
39 and the production of such books, records, and papers as he may desire at the
40 hearing and for that purpose the director may apply to the district court for
41 a subpoena for any witnesses or a subpoena duces tecum to compel the produc-
42 tion of any books, records, or papers which shall be served and returned in
43 the same manner as a subpoena in a civil case. In case of any disobedience or
2
1 neglect to obey a subpoena or subpoena duces tecum it shall be the duty of the
2 district court in any county of this state in which such disobedience,
3 neglect, or refusal occurs, or any judge thereof, on application by the direc-
4 tor, to compel obedience by proceedings for contempt as in the case of a sub-
5 poena issued by a regularly constituted court. Upon the conclusion of the
6 hearings and completion of any investigation conducted by the director, he
7 shall enter his findings in writing approving the application in whole, or in
8 part, or upon conditions or rejecting said application. Approval of any such
9 application must be based upon a finding that such appropriation of minimum
10 stream flow:
11 (a) wWill not interfere with any vested water right, permit, or water
12 right application with priority of right date earlier than the date of receipt
13 in the office of the director of a complete application for appropriation of
14 minimum stream flow filed under the provisions of this act;
15 (b) iIs in the public, as opposed to private, interest;
16 (c) iIs necessary for the preservation of fish and wildlife habitat,
17 aquatic life, recreation, aesthetic beauty, navigation, transportation, or
18 water quality of the stream;
19 (d) iIs the minimum flow or lake level and not the ideal or most desir-
20 able flow or lake level; and
21 (e) iIs capable of being maintained as evidenced by records of stream
22 flows and water levels and the existing or future establishment of necessary
23 gauging stations and bench marks.
24 A copy of the director's findings shall be mailed to the board and to each
25 person or organization who gave testimony in support of or in opposition to
26 the proposed appropriation. The board or any person testifying at a hearing
27 who is aggrieved by a decision of the director shall have the right to have
28 that decision reviewed by the courts pursuant to section 42-1701A(4), Idaho
29 Code. Approved applications shall be submitted to each legislature by the
30 fifth legislative day of each regular session, and: (i) shall not become
31 finally effective until affirmatively acted upon by concurrent resolution of
32 the Idaho legislature; or (ii) except that if the legislature fails to act
33 prior to the end of the regular session to which the application was submit-
34 ted, the application shall be considered approved.
STATEMENT OF PURPOSE
RS 14922C2
Historically, the appropriation of natural flow water rights from Idaho rivers and streams has
affected stream flows, natural recharge of interconnected ground water aquifers, water quality,
fish and wildlife habitat, and other values. Certain watersheds historically provided significant
natural recharge to the Eastern Snake Plain Aquifer (the Lost River, Wood River, Birch Creek,
Medicine Lodge Creek, etc.), which is now declining.
Under existing law and policy, water rights involving diversions are used for "managed recharge"
in various locations. This is generally accomplished by directing secured water through existing
canals, or by using ponds and "seeps" connected to canals allowing diverted water to sink into the
ground water aquifer. There is no existing legal authority to secure natural flow water rights and
leave that water in the natural river channel to accomplish natural recharge and other benefits.
This measure would authorize the Water Resources Board to utilize water rights secured
voluntarily in the Water Supply Bank for minimum stream flows. It is contemplated that aquifer
recharge will be an important benefit in certain watersheds, where federal conservation-related
incentives and other voluntary water transactions can secure natural flow water rights for the
Water Supply Bank to address these purposes. In some watersheds (Big Lost, Little Lost) water
rights secured for the Water Supply Bank can help address the loss of fish and wildlife habitat,
which has contributed to existing or potential listings of species under the federal Endangered
Species Act.
By enacting this measure, no injury occurs to senior water rights; authority is vested in the Water
Resources Board and the Department of Water Resources; and, public processes and review
procedures are maintained according to existing law and regulations.
FISCAL IMPACT
Additional appropriations from the General Account are not required if this bill is enacted.
Contact
Name: Sen. Clint Stennett
Phone: 332-1351
STATEMENT OF PURPOSE/FISCAL NOTE S 1116