2005 Legislation
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HOUSE BILL NO. 399 – Water, consumptive flow, lease

HOUSE BILL NO. 399

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Bill Status



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

Bill Text


                                                                        
                                                                        
  ]]]]              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 that
 21    all conditions for the effectiveness of certifies that the biological opinions
 22    required by the Snake River Water Rights Agreement of 2004 have been satisfied
 23    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 / Fiscal Impact


                       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