IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION
DEPARTMENT OF WATER RESOURCES — WATER RESOURCE BOARD
42-1763B. Interim authority for rental of water to augment flows for listed anadromous fish. (1) Legislative findings and intent regarding rental of water by the U.S. bureau of reclamation in the Snake River basin within Idaho to augment lower Snake River flows for anadromous fish listed under the endangered species act. The legislature finds that the U.S. bureau of reclamation proposes to release up to four hundred twenty-seven thousand (427,000) acre feet of leased or uncontracted water diverted from the Snake River basin to reservoir storage above Lewiston, and to lease or acquire up to sixty thousand (60,000) acre feet of consumptive natural flow water rights diverted and consumed below Milner dam and above Swan Falls dam from the mainstem of the Snake River to augment flows downstream of Hells Canyon dam during 2005 and through December 31, 2034. The state of Idaho is experiencing serious drought conditions and it is therefore uncertain whether this water will be available for rental for flow augmentation purposes in all years. The legislature further finds that authorization of this legislation is necessary for approval and implementation of the Snake River Water Rights Agreement of 2004 (Mediator’s Term Sheet dated April 20, 2004, and submitted on that date to the SRBA Court in SRBA Consolidated Subcase 03-10022 and SRBA Consolidated Subcase 67-13701, with all appendices to the document), as approved, ratified, and confirmed by the 108th Congress of the United States in the "Snake River Water Rights Act of 2004," Pub. L. No. 108-447 (H.R. 4818), 118 Stat. 3431 to 3441 (December 8, 2004). Therefore, the legislature authorizes the U.S. bureau of reclamation to lease storage and natural flow water rights through the state water supply bank and local rental pools under the limited conditions of this section. Any rentals of water for flow augmentation under any other provision of law, including section 42-108A, Idaho Code, shall be subject to the limitations and conditions of this section and the Snake River Water Rights Agreement of 2004.
(2) Rental of water by the U.S. bureau of reclamation.
(a) Notwithstanding the legislative approval required in section 42-108, Idaho Code, any storage water released and any natural flow water rights leased or acquired by the bureau within the state of Idaho for listed anadromous fish pursuant to this section must be rented through the water bank operated by the Idaho water resource board pursuant to sections 42-1761 through 42-1764, Idaho Code, or, in the case of storage water releases, through local rental committees, created pursuant to section 42-1765, Idaho Code, under their respective water bank rules.
(b) For any rental of water pursuant to this section, the director shall not be required to determine under section 42-1763, Idaho Code, whether the water supply is sufficient for the purpose for which it is sought, whether the rental would cause the use of water to be enlarged beyond that authorized under the water right to be rented, whether such use is in the public interest, or whether such use is consistent with the factors enumerated under subsection (3) of section 42-401, Idaho Code.
(3) Conditions on water rentals.
(a) Any water made available under this section shall be obtained only from willing lessors. Any water rented under this section from sources located within a basin having a local rental committee established pursuant to section 42-1765, Idaho Code, or section 42-1765A, Idaho Code, shall be rented pursuant to this section only through the local rental committee.
(b) Storage water made available under this section shall be limited to four hundred twenty-seven thousand (427,000) acre feet annually, and natural consumptive flow water shall be limited to not more than the sixty thousand (60,000) acre feet annually, that accrue to natural flow water rights, acquired or leased by the U.S. bureau of reclamation pursuant to the terms of the Snake River Water Rights Agreement of 2004. These amounts shall be reduced by other water the U.S. bureau of reclamation provides for flow augmentation for listed anadromous fish from the Snake River basin above Lewiston.
(c) In no event shall the release of water under this section cause the water surface of Lake Cascade to be below the elevation required to maintain a storage volume of three hundred thousand (300,000) acre feet, fifty thousand (50,000) acre feet of which is dead space, which is currently estimated to be at an elevation of four thousand eight hundred nine and two-tenths (4,809.2) feet. In addition, the state of Idaho shall pursue a shaping agreement for any uncontracted water released from Lake Cascade under this section.
(d) The rental or use of water under this section shall be in compliance with any permit, applicable water quality rule and regulation or other requirements of the clean water act, shall not cause jeopardy to other species in the state of Idaho, and shall not result in significant adverse impacts to recreational uses of the waters of the Snake River basin in Idaho. The state of Idaho shall not require any restriction, modification, or condition on the diversion, storage, use, discharge of water, or land use to remedy or address violations of water quality standards or other clean water act requirements to the extent the rental or use of water by the U.S. bureau of reclamation under this section causes the violations.
(e) The U.S. bureau of reclamation shall submit a report to the director by January 15 of each year describing the time, volume and purpose of water provided for listed anadromous fish from the Snake River basin above Lewiston during the past year and shall report on the plan for the spring and summer chinook by April 1 and on the plan for the fall chinook by July 15 of each year.
(f) All water rented or used by the U.S. bureau of reclamation under this section from above Hells Canyon dam must be used for power production purposes within the state of Idaho.
(g) All water rented or used by the U.S. bureau of reclamation under this section shall be subject to the terms and conditions contained in the Snake River Flow Component of the Snake River Water Rights Agreement of 2004.
(h) Nothing herein shall entitle the U.S. bureau of reclamation to rent or use water for flow augmentation upon termination or expiration of the permission given in this section.
(4) Nothing in this section shall be construed to alter, or authorize the U.S. bureau of reclamation to modify in any way its existing contractual obligations, or to constitute a finding by the legislature that the rental or use of storage water or natural flow water rights for flow augmentation for listed anadromous fish or any other species is a beneficial use of water, that it is in the public interest, or whether such use injures existing water rights.
(5) This section shall not become effective until the director certifies to the governor that the U.S. bureau of reclamation’s applications to transfer water right numbers 4616, 4617, 4618, 4623, 4625, 4626, 4627, 4628, 4629, 4630, 4631, 4632, 4633 and 4636, and to amend water right permit numbers 25-07004 and 63-3618 will be withdrawn, or held in abeyance while this section is in effect, and the governor further certifies that the biological opinions required by the Snake River Water Rights Agreement of 2004 have been issued.
(6) This act shall be null, void and of no force and effect upon the expiration or termination of the Snake River Flow Component of the Snake River Water Rights Agreement of 2004. In addition, it is the intent of the legislature to consider the repeal of this section in the event that any of the provisions of the Snake River Flow Component of the Snake River Water Rights Agreement of 2004 are modified or declared arbitrary, capricious or otherwise unlawful or set aside by any federal court or there is a finding of jeopardy by any federal court in regard to any biological opinions for projects operated by the U.S. bureau of reclamation in the Snake River basin in Idaho.
[42-1763B, added 1996, ch. 282, sec. 1, p. 912; am. 2000, ch. 222, sec. 2, p. 616; am. 2001, ch. 394, sec. 1, p. 1372; am. 2002, ch. 349, sec. 1, p. 997; am. 2005, ch. 149, sec. 1, p. 462; am. 2005, ch. 400, sec. 1, p. 1363.]