2005 Legislation
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SENATE BILL NO. 1116 – Minimum stream flow/water bank


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Bill Status

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

Bill Text

  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   First Regular Session - 2005
                                       IN THE SENATE
                                    SENATE BILL NO. 1116
  1                                        AN ACT
  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:
  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
  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 / Fiscal Impact

                       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.

Name:  Sen. Clint Stennett
Phone: 332-1351

STATEMENT OF PURPOSE/FISCAL NOTE                                                        S 1116