US Laws, Codes, Statutes & Cases

                                  TITLE  42
                       IRRIGATION AND DRAINAGE -- WATER
                            RIGHTS AND RECLAMATION
                                  CHAPTER 17
                       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.