Current through August 31, 2023
01.
Snake
River Water Rights Agreement. The legislation ratifying the Snake River
water rights agreement between the state of Idaho and Idaho Power Company
places in trust a part of the flows available to Idaho Power Company under its
hydropower water rights in the Snake River Basin between Swan Falls Dam and
Milner Dam. The flows subject to the trust water provisions and reallocation
under Section
42-203C(2), Idaho
Code, are as follows: (3-18-22)
a. Trust
water flows under the Snake River water rights agreement are located in the
Snake River between Swan Falls Dam located in Section
18, Township 2 South, Range 1 East,
Boise Meridian (B.M.) and Milner Dam located in Sections
28 and
29, Township 10 South, Range 21
East, Boise Meridian (B.M.) and all surface and groundwater sources tributary
to the Snake River in that reach. (3-18-22)
b. Surface water and groundwater tributary to
the Snake River upstream from Milner Dam is not trust water. After giving
notice and considering public comment, the Director will designate the area in
which groundwater is presumed to be tributary to the Snake River upstream from
Milner Dam. Modification or changes in the designated boundary may be made only
after providing notice and considering public comment. The area presently
designated as tributary to the Snake River in the Milner Dam to Swan Falls Dam
reach is appended to these rules (See Attachment A in APPENDIX A located at the
end of this chapter), for information purposes only. (3-18-22)
c. Trust water flows under the Snake River
water rights agreement are those occurring in the Snake River and tributaries
in the geographic area designated in Subsection
030.01.a. that exceed the
established minimum stream flows but are less than the water rights for
hydropower generating facilities in the Swan Falls Dam to Milner Dam reach of
Snake River, to the extent such rights were unsubordinated prior to the Snake
River water rights agreement. Minimum average daily flows have been established
by action of the Board and legislature at the U.S. Geological Survey gauging
station located near Murphy (Section
35, Township 1 South, Range 1 West
B.M.) in the amount of three thousand nine hundred (3900) cfs from April 1 to
October 31 and five thousand six hundred (5600) cfs from November 1 to March
31, and at Milner gauging station located in Section
29, Township 10 South, Range 21
East, B.M. in the amount of zero (0) cfs from January 1 to December 31.
(3-18-22)
02.
Trust Water Created by State Action. Section
42-203B(3), Idaho
Code, provides that trust water can be created by state action establishing a
minimum flow without an agreement with the holder of the hydropower water
right. Allocation of trust water so established will be pursuant to state law
except the criteria of Section
42-203C, Idaho Code, will not be
considered. (3-18-22)
03.
Sources of Public Water Not Trust Water. The following sources of
public water are not trust water and are not subject to the public interest
provisions of Section
42-203C, Idaho Code: (3-18-22)
a. Sources or tributaries to sources upon
which no hydropower generating facilities are located downstream within the
state of Idaho. (3-18-22)
b.
Sources or tributaries to sources which have a state hydropower water right
permit or license or Federal Energy Regulatory Commission license which have
not been subordinated, and the state of Idaho has not entered into an agreement
with the holder of the hydropower water right pursuant to Section
42-203B(2), Idaho
Code, and the State of Idaho has not established a minimum stream flow for
purposes of protecting hydropower generation. (3-18-22)
c. Sources or tributaries to sources for
which a state hydropower water right permit or license, or the Federal Energy
Regulatory Commission license included a subordination condition. Such flows
are considered to be public waters subject to appropriation under the
provisions of Section
42-203A, Idaho Code.
(3-18-22)
d. Flows in excess of
established rights including rights used for hydropower purposes. Such flows
are unappropriated waters subject to allocation under Section
42-203A, Idaho Code.
(3-18-22)
e. Flows in the Snake
River upstream from Milner Dam and all surface and groundwater tributaries to
that reach. Such flows are subject to allocation under Section
42-203A, Idaho Code, without
consideration of water rights existing downstream from Milner Dam (Reference:
42-203B(2), Idaho Code). (3-18-22)
