Print Friendly SENATE BILL NO. 1423
– 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
]]]] 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
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-
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
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 1 10. To direct and oversee the conduct and operations of the endowment
23 fund investment board and the Idaho department of lands.
24 1 21. 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 1 32. 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 1 43. 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 1 54. 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
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.
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
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
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-
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
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
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
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.
This legislation impose no fiscal burden on any agency or unit of
Name: Sen. Clint Stennett
Phone: 208 332 1351
STATEMENT OF PURPOSE/FISCAL NOTE S 1423