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AIC Legislative Committee Meeting Summary: Dec. 1, 2016

Posted By Justin Ruen, Monday, December 12, 2016

Welcome & Introductions: The meeting was called to order by AIC Legislative Chair John Evans, Mayor of Garden City, who led self-introductions.

Stormwater Phase II MS4 Permits:  AIC Policy Analyst Johanna Bell reported that a public review draft of a new Phase II municipal stormwater general permit will be released soon by the Region 10 office of the U.S. Environmental Protection Agency (EPA).

The federal Clean Water Act established the National Pollutant Discharge Elimination System (NPDES) program, which requires municipal separate storm sewer systems (MS4s) that discharge into waterways to implement stormwater management programs to protect water quality.  

The Minimum Control Measures required under these permits impact facility planning, operation and maintenance, as well as regulation of development, and include:

·         Construction Site Runoff Control,

·         Storm Water Management for Areas of New Development and Redevelopment,

·         Storm Water Infrastructure and Street Management,

·         Illicit Discharge Management, and

·         Education, Outreach and Public Involvement.

MS4 permits impact city operations and best management practices, and put cities in the position of adopting regulations that impact numerous commercial activities such as construction, new development, and industrial operations.

The first NPDES stormwater permits in Idaho were issued to the Boise urban area in 2000 under Phase I, which included the cities of Boise and Garden City, Ada County Highway District, Ada County Drainage District #3, Boise State University and Idaho Transportation Department (ITD) District 3.  One thing to notice is that these permits are issued to a variety of entities including cities, highway districts, counties, universities, and urban drainage districts.

Since 2006, EPA has issued 16 individual NPDES permits to Phase II urban areas (UAs) including Coeur d’Alene, Nampa/Caldwell, Pocatello, and Idaho Falls.  The next permit will include eight additional entities, including those located in Lewiston and Moscow. 

AIC Executive Director Seth Grigg said that cities face real challenges with these unfunded federal mandates and AIC wants to help identify a sustainable source of program funding.  There are two options: a utility-style fee, or an assessment that would be paid by property owners like assessments levied by drainage districts.  There are strengths and weaknesses to both approaches and it’s not clear at this point which alternative is better.  Either of these options would be better than levying property taxes, where high end residential, commercial and industrial properties end up paying more than their fair share.

Grigg said this is going to be a long-term effort to educate legislators about the issue and work toward an equitable funding solution.   

Use of City Rights-of-Way for 5G Wireless: AIC Counsel Jerry Mason said that the technology for 5th generation wireless (5G) is different than earlier generations and that some of the sites must be closer together because of the spectrum used.  Mobilitie and Crown Castle are seeking to take advantage of the Idaho Constitution’s franchise grant for telephone companies and have sought to obtain service provider certificates from the Idaho Public Utilities Commission, but they are not phone companies. 

Their goal is to locate poles up to 130 feet tall in city rights-of-way for new 5G technology.  Mason said this could result in obstructions to travel and cities should very seriously consider whether these massive poles belong in city rights-of-way.  The first four generations of wireless technology relied on locations on private property and 5G should follow the same path. 

Municipal Water Update: Chris Bromley of McHugh Bromley said that the North Idaho water rights adjudication is proceeding, but there have been delays in Basin 95, which will be divided into two phases.  Phase 1 will include the cities of Athol, Coeur d’Alene, Fernan Lake, Hayden, Post Falls, Rathdrum, and Spirit Lake and will likely be completed in Fall 2017.  Phase 2 will include the city of Plummer and will likely be completed in 2018.    

Bromley reported that there is now greater clarity on the issue of interconnected well transfers, which is a condition reflected in water rights for the City of Pocatello during Snake River Basin Adjudication.   In the case of a basin wide curtailment, this condition allows the city to designate the wells that will pump senior water rights and even use relatively junior wells for that purpose.  This will allow cities the flexibility to best meet their needs.    

Bromley reported that the Director of the Idaho Department of Water Resources has designated a ground water management area (GWMA) for the Eastern Snake Plain Aquifer, which is aimed at developing a plan for the sustainable management of the aquifer.  The GWMA covers a vastly larger area than other existing GWMAs.  Petitions for reconsideration have been filed by cities and the Director must consider those petitions and may have a hearing. 

Twenty-four cities are participating in a mitigation plan under the Surface Water Coalition (SWC) delivery call that expires December 31, 2016.  The participating cities include: Aberdeen, Ammon, Blackfoot, Bliss, Carey, Chubbuck, Declo, Dietrich, Gooding, Hazelton, Heyburn, Idaho Falls, Iona, Jerome, Paul, Richfield, Rupert, Shoshone, Pocatello, Rigby, Ririe, Roberts, Sugar City and Wendell.  Cities have been trying to negotiate a new mitigation agreement with the SWC for over a year, but the coalition has little need to negotiate when they are getting everything they want from the GWMA.

Local Government Purchasing Law Updates: Keith Watts of the City of Meridian and Bob Perkins of Ada County discussed their concepts for possible improvements to the local government purchasing law (Idaho Code Title 67, Chapter 28).  In addition to looking at the procurement thresholds, Watts and Perkins said that they are also interested in raising the threshold for use of a licensed public works contractor from $10,000 to $50,000.  They expressed their desire to get feedback from city officials about what works in the current law and areas that could be improved. 

Idaho School Boards Association Legislative Priorities: Jess Harrison of the Idaho School Boards Association (ISBA) gave an update on the association’s legislative priorities for the upcoming session.  She noted that ISBA will continue working with the Newspaper Association of Idaho on legislation proposed last session to permit local governing boards to discuss acquisition of real property in executive session.  

Harrison noted that the executive session statute is currently being interpreted to require four of the five members of the school board to vote in favor of a motion to go into executive session, which poses real challenges given the large number of school board vacancies.  The association would like to have a school board specific provision requiring only a simple majority of the board to vote in favor of an executive session. 

ISBA is also interested in looking at alternatives to general obligation bonds for school construction funding, and is considering development impact fees.  While impact fees would benefit districts that are growing, they would not be any help in districts where population is steady or declining.

Online Sales Tax: Pam Eaton of the Idaho Retailers Association said that the future of online sales and use tax legislation is likely expanding the definition of “nexus” to include not just brick and mortar stores, but office or administrative buildings, paid employees, shipping or storage facilities, etc.  Eaton said a conservative estimate of additional sales and use tax revenue that would result from nexus legislation would be $30-40 million annually.  

Regulation of Home Rentals: John Eaton of the Idaho Association of Realtors said that his association wants to engage with AIC to develop state legislation protecting homeowners’ rights to rent their homes, while at the same time ensuring local flexibility to regulate in the community’s best interests. 

Safe Routes to School: Erin Bennett of the American Heart Association and Cynthia Gibson of the Idaho Walk Bike Alliance said these groups are working to secure a dedicated state funding source for safe routes to school.  The limited federal funds available are not able to meet the very real needs in Idaho communities for biking and pedestrian routes.   

Medicaid Gap: Liz Woodruff of the Idaho Center for Fiscal Policy said that legislation to help the 78,000 Idahoans in the Medicaid gap appears unlikely at this point.  These people earn too much to be eligible for Medicaid and don’t earn enough to qualify for subsidized health insurance coverage under the Affordable Care Act. 

Woodruff said that we face the very real possibility of congressional repeal of the Affordable Care Act and potentially turning Medicaid into a block grant program.  Closing the Medicaid gap is important for Idaho cities because these people have no access to mental health or substance abuse treatment, which results in challenges for local law enforcement.

There are some legislators who have endorsed the Primary Care Access Program, which would provide up to $30 million in state funding for primary care for those in the gap population.  Woodruff said that primary care is a great starting point, but it is not a complete answer.

North Idaho Building Contractors Association v. Hayden: Brett Boyer, City Administrator for Hayden, said that the city was sued by the North Idaho Building Contractors Association over its sewer capitalization fees.  The Idaho Supreme Court held that the city’s approach to calculating capitalization fees using future build out was unreasonable and sent the case back down to the district court for further proceedings. 

Boyer said it is imperative for cities to use the equity buy-in approach for calculating fees, which divides the present system replacement value by the number of present system users.  The city’s consultant calculated the fee according to the equity buy-in approach and determined that the city’s fee was reasonable.  The case will likely be appealed again to the Idaho Supreme Court.

Transportation Revenue: Seth Grigg reported that the new transportation revenue amounting to $95 million annually is a help, but it is only a down payment on the $250 million annual state and local transportation funding shortfall.  AIC is hoping that the need to reauthorize the state surplus eliminator—which dedicates half of the state general fund surplus to transportation projects—will provide an opportunity for local highway jurisdictions to get a share of the revenue.  An idea with considerable merit is to use these funds for project grants to help local highway jurisdictions pay for highway and bridge projects.

Liquor by the Drink Licensing in Resort Communities: Seth Grigg reported that the City of Driggs will be sponsoring legislation again in the upcoming session to provide nontransferable liquor by the drink licenses for bona fide restaurants in resort communities.  These communities face real challenges because their resident population, which serves as the basis for determining the number of liquor by the drink licenses, is very small relative to their seasonal tourist population. 

Idaho Association of Counties Legislative Priorities: Teresa Baker of the Idaho Association of Counties (IAC) said that a legislative proposal sponsored by Ada County that would have relieved cities of the obligation of providing magistrate court facilities, while taking cities’ fine revenue to provide additional court funding, was tabled by the IAC board. 

Baker noted that IAC will be sponsoring legislation on the following issues of relevance for cities:  defining retention periods for body camera and other types of public safety video recordings; changing emergency dispatchers from the rule of 90 to the rule of 80 for PERSI purposes, which matches police and fire; and changes to clarify the whistleblower statute.

PERSI Hot Topics and Legislation: Don Drum of the Public Employee Retirement System of Idaho (PERSI) said that the PERSI board approved a 1% contribution rate increase at its October meeting.  This increase would take effect July 1, 2018 at the earliest.  Drum said that the increase would be paid 60% by employers and 40% by employees.  The board will look at the fund’s recent investment performance to determine if this increase is really necessary. 

Drum reported that the Professional Fire Fighters of Idaho are sponsoring legislation to provide an unreduced spousal contingent annuitant benefit for public safety (Class 2) members only.  This will not increase contribution rates for employers; the full cost will be paid through a 1.54% rate increase for public safety employees.  This will be mandatory for all public safety employees. 

Jeff Souza, Councilmember for Garden City, reported on a legislative proposal that would ban public sector employers from paying an employee’s PERSI contribution.  He argues that this practice is inequitable because very few employees benefit from it and it serves to mask the true amount an employee is being paid. 

Aerial Fireworks: Boise Fire Chief Dennis Doan said that setting off aerial fireworks is illegal in Idaho, but these fireworks can be easily purchased by certifying that the purchaser is a wholesaler who is taking them out of state.  The wholesaler loophole is getting considerable public and political scrutiny after a 19-year-old set off a 2,600 acre fire in the Table Rock area north of Boise last July that destroyed a home and an outbuilding.   Chief Doan said that the Idaho Fire Chiefs Association will be sponsoring legislation to close the wholesaler loophole.    

Electric Bikes: Seth Grigg reported that legislation has been drafted by Rep. Phylis King of Boise to include electric bikes in state code definitions of bicycles and allow electric bikes anywhere conventional bicycles are allowed.   

Local Option Building Code Exemptions for Owner-Builders: Jerry Mason reported that a Kootenai County Commissioner has proposed legislation creating a local option exemption for an owner-builder of a single-family residence to be exempt from building codes.  The owner-builder would still be required to comply with plumbing and electrical codes.  Mason said it makes no sense to provide an exemption for people with no demonstrated competence. 

Magistrate Court Funding: Mayor John Evans of Garden City said that the cities of Meridian and Garden City are awaiting a ruling from a panel of Ada County district judges who will decide whether one or both cities must construct magistrate court facilities pursuant to a 1994 order that predates the construction of the Ada County Courthouse. 

Evans said this issue has real significance for all cities and suggested that it’s time for representatives of cities, counties and the courts to sit down and find a sustainable funding source for magistrate courts that does not take cities’ fine revenue that helps pay the costs of law enforcement.

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