2008 Legislation
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SENATE BILL NO. 1423<br /> – Navigable lake/river/stream, beds

SENATE BILL NO. 1423

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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

Bill Text





                                                                       
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   Second Regular Session - 2008

                                                                       

                                       IN 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 of
 42    navigable lakes, rivers and streams, to the natural  or  ordinary  high  water
 43    mark  thereof,  so  as  to  provide for their commercial, navigational, recre-

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  1    ational or other public use; provided, that the board shall take no action  in
  2    derogation  of or seeking to interfere with the riparian or littoral rights of
  3    the owners of upland property abutting or adjoining such  lands;  except  that
  4    when  necessary to provide for the highest and best use of such lands for com-
  5    mercial, navigational, recreational or other public purposes,  the  board  may
  6    acquire the riparian or littoral rights of upland owners  by purchase or gift.
  7    The term "natural or ordinary high water mark" as herein used shall be defined
  8    to be the line which the water impresses on the soil by covering it for suffi-
  9    cient  periods to deprive the soil of its vegetation and destroy its value for
 10    agricultural purposes. Provided that this definition shall not be construed so
 11    as to affect or change the vested property rights of either the state of Idaho
 12    or of riparian or littoral property owners. Lands lying below the meander line
 13    of a lake bed encompassing a national wildlife refuge as established under the
 14    authority of the Migratory Bird Conservation Act  of  February  18,  1929  (45
 15    Stat.  1222),  as amended, or the Fish and Wildlife Coordination Act (48 Stat.
 16    401), as amended, or the Fish and Wildlife Act of 1956  (70  Stat.  1119),  as
 17    amended (16 USC 742a through 742i), are not subject to the application of this
 18    act.
 19        10. 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.

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  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

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  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

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  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
 22    58-104 67-4223, Idaho Code, or any other lands owned by the state of Idaho.

Statement of Purpose / Fiscal Impact


                      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