| Code |
Condtions |
| C18 |
This partial decree is subject to such general provisions necessary for the definition of the rights or for the efficient administration of the water rights as may be ultimately determined by the Court at a point in time no later than the entry of a final unified decree. Section 42-1412(6), Idaho Code. |
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IT IS HEREBY ORDERED that the Order, dated July 22, 1999, approving an exchange of Boise River water with Snake River water right no. 2-2339 is Amended, and the following are conditions of approval that now apply to the exchange:
Part A
1. The water right holder’s diversion from the Boise River under the Exchange shall occur only during times when the United States Bureau of Reclamation (Bureau) is providing flow augmentation water from Boise River reservoirs pursuant to the NOAA Fisheries flow augmentation program. The water right holder shall not divert from the Snake River under water right no. 2-2339 during any calendar year it diverts water from the Boise River as authorized by the Exchange. Leaving water in the Snake River that would have been diverted under water right no. 2-2339 replaces a like amount of water at the mouth of the Boise River that the water right holder diverts from the Boise River pursuant to this Exchange. The water right holder’s Boise River diversions under this Exchange shall be:
a. used solely for irrigation purposes within the water right holder’s service area;
b. controlled by the Boise River Watermaster. The Boise River and its tributaries are currently designated as Basin 63 in the Departments records. The water right holder shall install controlling works approved by the Department and the Boise River Watermaster;
c. measured through the use of weirs and totalizing flow meters, as approved by the Department and the Boise River Watermaster, as well as through the use of any additional means of measurement that may be approved or required by the Department and the Boise River Watermaster, and records of such measurements shall accurately document: diversion rate, volume for identifiable time periods, time periods of diversion, and data to confirm that the water diverted was used solely for irrigation purposes; and
d. reported annually to the Department and the Boise River Watermaster on or before November 1, of each year, which reports shall include, at a minimum, the measurement data and records specified in the preceding paragraph, and also shall include any additional data or records specified by the conditions of this Exchange or by a future order of the Department related to measurement and reporting.
2. The water right holder’s diversions from the Boise River under this Exchange shall not exceed the lesser of parts a or b below, and a total annual diversion volume of 2,745.0 acre-feet of water:
a. the instantaneous rate or volume of the Bureau’s Boise River reservoir releases for the NOAA Fisheries flow augmentation program; or
b. the instantaneous rate at which water is available in priority under the Snake River water right and is being delivered in the Snake River and administered in accordance with Idaho law to the confluence of the Boise and the Snake Rivers, not to exceed 11.0 cfs. |
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Part B
1. At any time when the Exchange would otherwise be in effect, if measured or calculated Boise River flows at the water right holder’s point of diversion from the Boise River, are less than 240 cfs, or diversion at the point of diversion would reduce Boise River flows below 240 cfs during the period beginning June 1 and ending February 29, then the Exchange shall be limited to provide for not less than 240 cfs of flow in the Boise River. If measured or calculated Boise River flows at the point of diversion from the Boise River are less than 1,100 cfs, or diversion at the point of diversion would reduce Boise River flows below 1,100 cfs during the period beginning March 1 and ending May 31, then the Exchange shall be limited to provide for not less than 1,100 cfs of flow in the Boise River. Measured or calculated Boise River flows at the point of diversion shall be based on gauged Lucky Peak Dam discharge minus diversion to the New York Canal. If the benchmark stream maintenance flows of 240 cfs (from June 1 to February 29) and 1,100 cfs (from March 1 to May 31) subsequently change, then the water right holder’s diversion of Boise River flows will be limited to provide for the new benchmark flows.
2. The Bureau is not expected or required to alter its operations in any way to accommodate the Exchange. The Exchange depends upon the Bureau’s release of storage water pursuant only to the Bureaus discretion in fulfilling the terms of Idaho Code § 42-1763B and the NOAA Fisheries flow augmentation program, including the delivery and accounting of such releases by the Boise River Watermaster. The water right holder is not entitled to demand that any of these storage releases occur or that any release occur at any particular time or in any particular amount.
3. The water right holders diversion and use of water from the Boise River pursuant to this Exchange shall not conflict with applicable water bank rules, including any rules governing the Boise River Rental Pool, and shall not adversely affect the ability of any irrigation entity to rent and receive storage water through the Boise River Rental Pool under such rules, including, without limitation, any irrigation entitys entitlement to benefit from the preference for irrigation uses as specified therein.
4. The water right holders diversion and use of water from the Boise River pursuant to this Exchange shall be accounted for in the water right holders portfolio of water rights that may be recognized now or in the future in relation to any approved planning horizon, existing water rights holdings, or future needs volume. The Snake River water right shall not be diverted from alternate points of diversion for the water right holder’s ground water rights. |
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5. Approval of this Exchange by the Department is not part of and does not support the NOAA Fisheries Program, and shall not be construed to be a part of or to support the NOAA Fisheries Program. However, if NOAA Fisheries or any court determines that this Exchange inhibits the Bureau's ability to comply with the flow augmentation program, then Boise River diversions under the Exchange will terminate until such time, if ever, that NOAA Fisheries or such court determines the Exchange does not inhibit the Bureau's ability to comply with the flow augmentation program.
6. Approval of this Exchange by the Department has no bearing upon the status of claims to Boise River storage water that are or that may be filed in the Snake River Basin Adjudication and has no bearing upon any contract with the Bureau for the storage and use of water in the Boise River reservoirs.
7. The Department monitors the below-Milner Snake river reach at the Murphy gage. At any point the Department, or any future watermaster on this reach, determines all or a portion of the exchanged Snake River water right is out of priority (i.e. that there is an insufficient amount of flow in the Snake River to fill all or a portion of the water right), the Department or the watermaster for the below-Milner Snake River reach will immediately notify the Boise River Watermaster. In turn, the Boise River Watermaster will preclude diversion of a comparable amount of Boise River water under this exchange as is currently unavailable to fill the exchanged Snake River water right.
8. The water right holder must be a municipal provider under Idaho Law.
9 Point of diversion authorized from the Boise River under this Exchange is described as T3N, R2E, Sec. 14, L7(SENE) (Marden Street Water Treatment Plant).
10. Place of use authorized under this Exchange is within the service area of United Water Idaho Inc. as provided for under Idaho law. The place of use is generally described as within the city limits of Boise and the surrounding service area.
11. Failure of the right holder to comply with conditions of this Exchange is cause for the Director to rescind approval of this Exchange |
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The described place of use was purchased by the United States on February 12, 1998, and this water right was purchased by United Water Idaho Inc. on January 7, 2000. Water right 2-2339 is currently not being used at the described place of use and is instead being used at a different location pursuant to an exchange pursuant to Idaho Code 42-240 and authorized by Department order issued on June 13, 2006. So long as the United States continues to own the described place of use, no resumption of use at the described place of use is allowed absent express written authorization by the United States issued pursuant to proper delegation of authority and consistent with regulation and the applicable Land Use Plan. The holder of the water right agrees that lack of such authorization shall not be construed to be a taking, in whole or part, of the water right. |