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S1423..........................................by RESOURCES AND ENVIRONMENT NAVIGABLE BODIES OF WATER - Amends existing law relating to the duties of the State Board of Land Commissioners to delete powers and duties of the State Board of Land Commissioners relating to regulation and control of the use and disposition of lands in the beds of navigable lakes, rivers and streams; to authorize the Parks and Recreation Board to regulate and control the use and disposition of lands in the beds of navigable lakes, rivers and streams; and to provide for the transfer of specified rights, duties and obligations from the State Board of Land Commissioners to the Parks and Recreation Board; and to provide that certain rights, duties and obligations shall be retained by the State Board of Land Commissioners. 02/11 Senate intro - 1st rdg - to printing 02/12 Rpt prt - to Res/Env
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature Second Regular Session - 2008IN THE SENATE SENATE BILL NO. 1423 BY RESOURCES AND ENVIRONMENT COMMITTEE 1 AN ACT 2 RELATING TO DUTIES OF THE STATE BOARD OF LAND COMMISSIONERS; AMENDING SECTION 3 58-104, IDAHO CODE, TO DELETE POWERS AND DUTIES OF THE STATE BOARD OF LAND 4 COMMISSIONERS RELATING TO REGULATION AND CONTROL OF THE USE AND DISPOSI- 5 TION OF LANDS IN THE BEDS OF NAVIGABLE LAKES, RIVERS AND STREAMS; AMENDING 6 SECTION 67-4223, IDAHO CODE, TO AUTHORIZE THE PARKS AND RECREATION BOARD 7 TO REGULATE AND CONTROL THE USE AND DISPOSITION OF LANDS IN THE BEDS OF 8 NAVIGABLE LAKES, RIVERS AND STREAMS; AMENDING SECTION 67-4227, IDAHO CODE, 9 TO PROVIDE FOR THE TRANSFER OF SPECIFIED RIGHTS, DUTIES AND OBLIGATIONS 10 FROM THE STATE BOARD OF LAND COMMISSIONERS TO THE PARKS AND RECREATION 11 BOARD, AND TO PROVIDE THAT CERTAIN RIGHTS, DUTIES AND OBLIGATIONS SHALL BE 12 RETAINED BY THE STATE BOARD OF LAND COMMISSIONERS; AND AMENDING SECTION 13 5-246, IDAHO CODE, TO PROVIDE A CORRECT CODE REFERENCE. 14 Be It Enacted by the Legislature of the State of Idaho: 15 SECTION 1. That Section 58-104, Idaho Code, be, and the same is hereby 16 amended to read as follows: 17 58-104. STATE LAND BOARD -- POWERS AND DUTIES. The state board of land 18 commissioners shall have power: 19 1. To exercise the general direction, control and disposition of the pub- 20 lic lands of the state. 21 2. To appoint its executive officer, the director of the department of 22 lands. 23 3. To perform legislative functions not inconsistent with law and to del- 24 egate to its executive officer and his assistants the execution of all poli- 25 cies adopted by it. 26 4. To review upon appeal all decisions of the director of the department 27 of lands in contested matters. 28 5. To determine the policy, direct the work to be undertaken, solicit 29 bids, contract for work to be performed, and appropriate from its funds the 30 money necessary to carry out such work. 31 6. To prescribe rules, not inconsistent with law, for the government of 32 the department, the conduct of its employees and clerks, the distribution and 33 performance of its business and the custody, use and preservation of the 34 records, papers, books, documents, and property pertaining thereto. 35 7. To engage in reseeding and reforestation programs on the public lands 36 of the state. 37 8. To exchange any public lands of the state, over which the board has 38 power of disposition and control for lands of equal value, the title to which, 39 or power of disposition, belongs or is vested in the governing body or board 40 of trustees of any state governmental unit, agency or institution. 41 9.To regulate and control the use or disposition of lands in the beds of42navigable lakes, rivers and streams, to the natural or ordinary high water43mark thereof, so as to provide for their commercial, navigational, recre-2 1ational or other public use; provided, that the board shall take no action in2derogation of or seeking to interfere with the riparian or littoral rights of3the owners of upland property abutting or adjoining such lands; except that4when necessary to provide for the highest and best use of such lands for com-5mercial, navigational, recreational or other public purposes, the board may6acquire the riparian or littoral rights of upland owners by purchase or gift.7The term "natural or ordinary high water mark" as herein used shall be defined8to be the line which the water impresses on the soil by covering it for suffi-9cient periods to deprive the soil of its vegetation and destroy its value for10agricultural purposes. Provided that this definition shall not be construed so11as to affect or change the vested property rights of either the state of Idaho12or of riparian or littoral property owners. Lands lying below the meander line13of a lake bed encompassing a national wildlife refuge as established under the14authority of the Migratory Bird Conservation Act of February 18, 1929 (4515Stat. 1222), as amended, or the Fish and Wildlife Coordination Act (48 Stat.16401), as amended, or the Fish and Wildlife Act of 1956 (70 Stat. 1119), as17amended (16 USC 742a through 742i), are not subject to the application of this18act.1910.To enter into a joint exercise of powers agreement with the United 20 States forest service in the department of agriculture, pursuant to section 21 67-2328, Idaho Code. 22 110. To direct and oversee the conduct and operations of the endowment 23 fund investment board and the Idaho department of lands. 24 121. To appoint and consult with expert advisors for each critical func- 25 tion for which the state board of land commissioners has responsibility. In 26 this context, the term "expert advisor" shall mean a person engaged in the 27 business for which he holds himself out to be an expert and who is experienced 28 in that field. 29 132. Strategically plan and establish policies to coordinate the manage- 30 ment of state lands with the investment goals of the permanent endowment funds 31 and earnings reserve funds. 32 143. To provide reports of the status and performance of state endowment 33 lands and the respective endowment funds to the state affairs committees of 34 the senate and the house of representatives within fourteen (14) days after a 35 regular session of the legislature convenes. 36 154. To make distributions to endowment income funds as provided in sec- 37 tion 57-723A, Idaho Code. 38 SECTION 2. That Section 67-4223, Idaho Code, be, and the same is hereby 39 amended to read as follows: 40 67-4223. POWERS OF BOARD. The park and recreation board shall: 41 (a) Adopt, amend or rescind rules as may be necessary for the proper 42 administration of the provisions of sections 67-4218, et seq., Idaho Code, and 43 the use and protection of park and recreational areas subject to its jurisdic- 44 tion. A violation of any rule promulgated by the board pursuant to this provi- 45 sion which concerns the use and protection of park and recreation areas is an 46 infraction. 47 (b) Make expenditures for the acquisition, leasing, care, control, super- 48 vision, improvement, development, extension and maintenance of all lands under 49 the control of the department and to make arrangements, agreements, contracts 50 or commitments, which may or may not involve expenditures or transfer of 51 funds, with the head of any state institution, department or agency for the 52 improvement or development of lands or properties under the control of the 53 board, or any other department or agency of the state of Idaho. 3 1 (c) Appoint advisory, local and regional park and recreational councils, 2 to consider, study and advise in the work of the department for the extension, 3 development, use and maintenance of any areas which are to be considered as 4 future park or recreational sites or which are designated as park recreational 5 areas. 6 (d) Appoint a six (6) member recreational vehicle advisory committee, who 7 shall be compensated as provided in section 59-509(f), Idaho Code, and act in 8 an advisory capacity to the board on matters relating to the development and 9 improvement of recreational vehicle related facilities and services as pro- 10 vided in subsection (e) of this section. Each member of the advisory committee 11 shall be representative of recreational vehicle users with one (1) from each 12 of the districts described in section 67-4221, Idaho Code. The terms of 13 appointment shall be three (3) years, except that the initial appointees shall 14 commence on the date of appointment and shall be of staggered lengths so that 15 the term of two (2) members will expire annually. 16 (e) Administer the funds derived from the recreational vehicle account 17 established in section 49-448, Idaho Code, to provide financial assistance in 18 the form of grants to public entities for the acquisition, lease, develop- 19 ment, improvement, operations and maintenance of facilities and services 20 designed to promote the health, safety and enjoyment of recreational vehicle 21 users. Up to fifteen percent (15%) of the recreational vehicle account gener- 22 ated each year may be used by the department to defray recreational vehicle 23 program administrative costs. Any moneys unused at the end of the fiscal year 24 shall be returned to the state treasurer for deposit in the recreational vehi- 25 cle account. 26 (f) Cooperate with the United States and its agencies and local govern- 27 ments of the state for the purpose of acquiring, leasing, supervising, improv- 28 ing, developing, extending or maintaining lands which are designated as state 29 parks, state monuments or state recreational areas and to secure agreements or 30 contracts with the United States and its agencies or local governments of the 31 state for the accomplishment of the purposes of sections 67-4218, et seq., 32 Idaho Code. 33 (g) Construct, lease or otherwise establish public park or recreational 34 privileges, facilities and conveniences and to operate said recreational ser- 35 vices and to make and collect reasonable charges for their use or to enter 36 into contracts for their operation. The board may discount fees in order to 37 offer use incentives to generate additional revenue for operation of the state 38 park system. The net proceeds derived shall be credited to the park and recre- 39 ation account established in section 67-4225, Idaho Code, and are hereby spe- 40 cifically appropriated to defray the cost of the public park or recreational 41 services. The department is specifically authorized to enter into contracts 42 with the United States and its agencies which require that the state expend 43 any excess of revenue above expenses for improvements of the recreational or 44 park area from which the excess was derived. 45 (1) The board may provide for waiver of fees to any resident of Idaho who 46 is a disabled veteran and whose disability is rated at one hundred percent 47 (100%) or higher, permanent and total. 48 (2) The board may provide for a reduction of no more than fifty percent 49 (50%) of the fee charged for recreational vehicle camping, effective Mon- 50 day night through Thursday night, for any senior citizen who possesses a 51 valid federal "golden age passport" or other equivalent successor, as 52 issued by a federally-operated facility where an entrance fee is charged. 53 (3) If any state recognizes senior citizens by offering a special park 54 pass for use in that state, the board may provide for a reduction of no 55 more than fifty percent (50%) of the fee charged for recreational vehicle 4 1 camping, effective Monday night through Thursday night, for any person who 2 possesses such a state park pass. 3 (h) Prepare, maintain and keep up-to-date a comprehensive plan for the 4 provision of the outdoor recreational resources of the state; to develop, 5 operate and maintain or enter into leases or agreements with local govern- 6 ments for the operation and maintenance of outdoor recreational areas and 7 facilities of the state, and to acquire lands, waters and interests in lands 8 and waters for such areas and facilities. 9 (i) Apply to any appropriate agency or officer of the United States for 10 participation by the department or a political subdivision of the state or the 11 receipt of aid from any federal program respecting outdoor recreation. It may 12 enter into contracts and agreements with the United States or any appropriate 13 agency thereof, keep financial and other records relating thereto and furnish 14 to appropriate officials and agencies of the United States reports and infor- 15 mation as may be reasonably necessary to enable officials and agencies to per- 16 form their duties under such programs. In connection with obtaining the bene- 17 fits of any program, the park and recreation board shall coordinate its activ- 18 ities with and represent the interests of all agencies and subdivisions of the 19 state having interests in the planning, development and maintenance of outdoor 20 recreational resources and facilities. 21 (j) Obligate the state regarding the responsible management of any fed- 22 eral funds transferred to it for the purpose of any federal enactment and, in 23 accordance with the exercise of this responsibility, the state hereby consents 24 to be sued in any United States district court for the recovery of any federal 25 funds that the responsible federal official, department or agency finds have 26 been misused or disposed of contrary to the agreement with the federal offi- 27 cial, department or agency or contrary to the provisions of federal enactment 28 or applicable federal regulations. 29 (k) Cooperate and contract with and receive and expend aid, donations and 30 matching funds from the government of the United States, receive and expend 31 funds from the STORE and to receive and expend donations from other sources to 32 acquire, develop, operate and maintain outdoor recreational areas and facili- 33 ties of the state and, when authorized or directed by any act of congress or 34 any rule or regulation of any agency of the government of the United States, 35 to expend funds donated or granted to the state of Idaho by the federal gov- 36 ernment for such purposes. 37 Provided, however, the park and recreation board shall make no commitment 38 or enter into any agreement pursuant to an exercise of authority under sec- 39 tions 67-4218, et seq., Idaho Code, until it has determined that sufficient 40 funds are available to it for meeting the state's share, if any, of project 41 costs. It is legislative intent that, to the extent as may be necessary to 42 assure the proper operation and maintenance of areas and facilities acquired 43 or developed pursuant to any program participated in by this state under 44 authority of sections 67-4218, et seq., Idaho Code, such areas and facilities 45 shall be publicly maintained for outdoor recreational purposes. The park and 46 recreation board may enter into and administer agreements with the United 47 States or any appropriate agency thereof for planning, acquisition and devel- 48 opment projects involving participating federal-aid funds or state funds on 49 behalf of any subdivision or subdivisions of this state. Provided, that the 50 subdivision or subdivisions give necessary assurances to the park and recre- 51 ation board that they have available sufficient funds to meet their shares, if 52 any, of the cost of the project and that the acquired or developed areas will 53 be operated and maintained at the expense of the subdivision or subdivisions 54 for public outdoor recreational use. 55 (l) Establish, develop, supervise and maintain through cooperative agree- 5 1 ment, lease, purchase or other arrangement the Idaho recreation trail system, 2 with the advice of the coordinator created in section 67-4233, Idaho Code, and 3 consistent with the goals of recreation, transportation and public access to 4 outdoor areas. 5 (m) Enter into agreements with cities, counties, recreation districts or 6 other political subdivisions of the state to cost-effectively provide recre- 7 ational facilities, opportunities and services to the citizens of the state. 8 (n) Regulate and control the use or disposition of lands in the beds of 9 navigable lakes, rivers and streams, to the natural or ordinary high water 10 mark thereof, so as to provide for their commercial, navigational, recre- 11 ational or other public use; provided, that the board shall take no action in 12 derogation of or seeking to interfere with the riparian or littoral rights of 13 the owners of upland property abutting or adjoining such lands; except that 14 when necessary to provide for the highest and best use of such lands for com- 15 mercial, navigational, recreational or other public purposes, the board may 16 acquire the riparian or littoral rights of upland owners by purchase or gift. 17 The term "natural or ordinary high water mark" as herein used shall be defined 18 to be the line which the water impresses on the soil by covering it for suffi- 19 cient periods to deprive the soil of its vegetation and destroy its value for 20 agricultural purposes. Provided that this definition shall not be construed so 21 as to affect or change the vested property rights of either the state of Idaho 22 or of riparian or littoral property owners. Lands lying below the meander line 23 of a lake bed encompassing a national wildlife refuge as established under the 24 authority of the Migratory Bird Conservation Act of February 18, 1929 (45 25 Stat. 1222), as amended, or the Fish and Wildlife Coordination Act (48 Stat. 26 401), as amended, or the Fish and Wildlife Act of 1956 (70 Stat. 1119), as 27 amended (16 USC 742a through 742i), are not subject to the application of this 28 act. 29 SECTION 3. That Section 67-4227, Idaho Code, be, and the same is hereby 30 amended to read as follows: 31 67-4227. RIGHTS, DUTIES AND OBLIGATIONS TRANSFERRED. The rights, duties 32 and obligations of the state board of land commissioners created by chapter 5, 33 title 58, and chapter 42, title 67, Idaho Code, relating to parks, and all 34 rights, duties and obligations of the state board of land commissioners relat- 35 ing to the regulation and control of the use and disposition of lands in the 36 beds of navigable lakes, rivers and streams, including those created by chap- 37 ter 12, title 58, Idaho Code, relating to the public trust doctrine, and chap- 38 ter 13, title 58, Idaho Code, relating to encroachments, are hereby trans- 39 ferred to the park and recreation board of the department of parks and recre- 40 ation. Provided however, the rights, duties and obligations of the state board 41 of land commissioners created by chapter 7, title 47, Idaho Code, relating to 42 mineral rights, and chapter 13, title 47, Idaho Code, relating to dredge min- 43 ing, shall remain with the state board of land commissioners. 44 SECTION 4. That Section 5-246, Idaho Code, be, and the same is hereby 45 amended to read as follows: 46 5-246. PRESCRIPTIVE OVERFLOW EASEMENTS. In conformity with the limita- 47 tions of actions time period set forth in sections 5-203 through 5-206, Idaho 48 Code, the owner of a dam shall be deemed to have obtained a nonexclusive 49 prescriptive overflow easement over real property which has been inundated or 50 overflowed by the operations of the dam for at least a part of a year for any 51 consecutive five (5) year period prior to commencement of an action by the 6 1 property owner seeking relief inconsistent with such nonexclusive prescriptive 2 overflow easement. Said dam owner shall be deemed to have not forfeited said 3 nonexclusive prescriptive overflow easement if the reason for the failure to 4 exercise the easement is a lack of water caused by drought or acts of God. 5 It is further provided that if a dam has inundated or overflowed real 6 property for at least a part of a year for the five (5) consecutive years 7 prior to the enactment of this section, then the owner of the dam shall be 8 deemed to have obtained a nonexclusive prescriptive overflow easement hereun- 9 der over said real property one (1) year after the enactment of this section, 10 provided, no action seeking relief inconsistent with such nonexclusive 11 prescriptive overflow easement has been commenced by the property owner within 12 one (1) year of the enactment of this section. The provisions of this section 13 shall not be construed to affect the riparian and littoral rights of property 14 owners to have access to and use of waters in this state, or to restrict any 15 use of the underlying property for any purpose otherwise consistent with own- 16 ership thereof, even if said use interferes with the storage of water on the 17 property. Nothing herein shall be deemed to affect any prescriptive overflow 18 easement that any dam owner may have previously acquired under common law. The 19 provisions of this section shall not be construed to apply to the beds of nav- 20 igable waters lying below the natural or ordinary high watermark as defined in 21 subsection (c) of section 58-1302, Idaho Code, and subsection (9n) of section 2258-10467-4223, Idaho Code, or any other lands owned by the state of Idaho.
STATEMENT OF PURPOSE
RS 17903
This legislation would transfer the authority to regulate and control
the use or disposition of lands in the beds of navigable lakes, rivers
and streams, to the ordinary high water mark from the state board of
land commissioners to the park and recreation board. Presently, the
board of land commissioners is vested with the authority to
administered submerged lands under Idaho Code 58-104. Under the
proposed legislation, the parks and recreation board would administer
these lands except for the regulation of mining activities, which
would remain with the board of land commissioners.
The state holds title to submerged lands under the equal footing
doctrine. These lands are held subject to the public trust doctrine.
Under the public trust doctrine, the state, acting on behalf of the
people, has the right to regulate, control and utilize navigable
waters for the protection of certain public uses, particularly
navigation, commerce and fisheries. The department of parks and
recreation's expertise and knowledge in regulation of recreation makes
it a more logical entity to oversee Idaho's submerged lands.
FISCAL NOTE
This legislation impose no fiscal burden on any agency or unit of
government.
Contact
Name: Sen. Clint Stennett
Phone: 208 332 1351
STATEMENT OF PURPOSE/FISCAL NOTE S 1423