HOUSE BILL NO. 633

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Bill Status



H0633.........................................by RESOURCES AND CONSERVATION
WATER RIGHTS - Amends existing law to provide that no portion of any water
right shall be lost or forfeited for nonuse if the nonuse results from
water rights being used for mitigation purposes approved by the director of
the Department of Water Resources, including as a condition of approval for
a new water right appropriation, a water right transfer, a water exchange
or a mitigation plan.
                                                                        
02/10    House intro - 1st rdg - to printing
02/11    Rpt prt - to Res/Con
02/24    Rpt out - rec d/p - to 2nd rdg
02/25    2nd rdg - to 3rd rdg
02/27    3rd rdg - PASSED - 63-0-7
      AYES -- Andersen, Barraclough, Barrett, Bauer, Bayer, Bedke, Bell,
      Black, Block, Bolz, Bradford, Campbell, Cannon, Clark, Collins,
      Cuddy, Deal, Denney, Douglas, Eberle, Edmunson, Ellsworth, Eskridge,
      Field(18), Field(23), Garrett, Harwood, Henbest, Jaquet, Kellogg,
      Kulczyk, Lake, Langford, Langhorst, Martinez, McGeachin, McKague,
      Meyer, Miller, Mitchell, Moyle, Naccarato, Nielsen, Pasley-Stuart,
      Raybould, Ridinger, Ring, Ringo, Roberts, Robison, Rydalch, Sayler,
      Shepherd, Shirley, Skippen, Smith(30), Smith(24), Smylie, Snodgrass,
      Stevenson, Trail, Wills, Wood
      NAYS -- None
      Absent and excused -- Boe, Crow, Gagner, Jones, Sali, Schaefer, Mr.
      Speaker
    Floor Sponsor - Field(23)
    Title apvd - to Senate
03/01    Senate intro - 1st rdg - to Res/Env
03/04    Rpt out - rec d/p - to 2nd rdg
03/05    2nd rdg - to 3rd rdg
03/16    3rd rdg - PASSED - 35-0-0
      AYES -- Andreason, Bailey, Brandt, Bunderson, Burkett, Burtenshaw,
      Calabretta, Cameron, Compton, Darrington, Davis, Gannon, Geddes,
      Goedde, Hill, Ingram, Kennedy, Keough, Little, Lodge, Malepeai,
      Marley, McKenzie, McWilliams, Noble, Noh, Pearce, Richardson,
      Schroeder, Sorensen, Stegner, Stennett, Sweet, Werk, Williams
      NAYS -- None
      Absent and excused -- None
    Floor Sponsor - Stennett
    Title apvd - to House
03/17    To enrol
03/18    Rpt enrol - Sp signed
03/19    Pres signed - To Governor
03/23    Governor signed
         Session Law Chapter 178
         Effective: 07/01/04

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-seventh Legislature                 Second Regular Session - 2004
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 633
                                                                        
                          BY RESOURCES AND CONSERVATION COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO FORFEITURE OF WATER RIGHTS; AMENDING SECTION 42-223,  IDAHO  CODE,
  3        TO  PROVIDE  THAT NO PORTION OF ANY WATER RIGHT SHALL BE LOST OR FORFEITED
  4        FOR NONUSE IF THE NONUSE RESULTS FROM THE WATER RIGHT BEING USED FOR MITI-
  5        GATION PURPOSES APPROVED BY  THE  DIRECTOR  OF  THE  DEPARTMENT  OF  WATER
  6        RESOURCES  INCLUDING  AS  A  CONDITION  OF  APPROVAL FOR A NEW WATER RIGHT
  7        APPROPRIATION, A WATER RIGHT TRANSFER, A WATER EXCHANGE  OR  A  MITIGATION
  8        PLAN.
                                                                        
  9    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 10        SECTION  1.  That  Section  42-223, Idaho Code, be, and the same is hereby
 11    amended to read as follows:
                                                                        
 12        42-223.  EXCEPTIONS OR DEFENSES TO FORFEITURE. A right to the use of water
 13    shall not be lost by forfeiture pursuant to the provisions of section  42-222,
 14    Idaho  Code, for a failure to apply the water to beneficial use under the con-
 15    ditions specified in any subsection of this section. The legislature does  not
 16    intend  through  enactment of this section to diminish or impair any statutory
 17    or common law exception or defense to  forfeiture  existing  on  the  date  of
 18    enactment or amendment of this section, or to preclude judicial or administra-
 19    tive  recognition  of other exceptions or defenses to forfeiture recognized in
 20    Idaho case law or other provisions of the Idaho Code.  No  provision  of  this
 21    section  shall  be  construed to imply that the legislature does not recognize
 22    the existence or validity of any common law exception or defense to forfeiture
 23    existing on the date of enactment or amendment of this section.
 24        (1)  A water right appurtenant to land contracted in  a  federal  cropland
 25    set-aside  program  shall  not be lost or forfeited for nonuse during the con-
 26    tracted period. The running of any five (5) year period of nonuse for  forfei-
 27    ture of a water right shall be tolled during the time that the land remains in
 28    the cropland set-aside program.
 29        (2)  A water right held by a municipal provider to meet reasonably antici-
 30    pated  future  needs  shall  be  deemed to constitute beneficial use, and such
 31    rights shall not be lost or forfeited for nonuse unless the  planning  horizon
 32    specified  in the license has expired and the quantity of water authorized for
 33    use under the license is no  longer  needed  to  meet  reasonably  anticipated
 34    future needs.
 35        (3)  A  water  right shall not be lost or forfeited by a failure to divert
 36    and apply the water to beneficial use if the water is not needed  to  maintain
 37    full  beneficial  use under the right because of land application of waste for
 38    disposal purposes including, but not limited to, discharge from dairy  lagoons
 39    used  in  combination  with  or substituted for water diverted under the water
 40    right.
 41        (4)  A water right shall not be lost or forfeited by a failure  to  divert
 42    and  apply  the  water  to  beneficial use if the reason for the nonuse of the
 43    water is to comply with the provisions  of  a  ground  water  management  plan
                                                                        
                                           2
                                                                        
  1    approved by the director of the department of water resources pursuant to sec-
  2    tion 42-233a or 42-233b, Idaho Code.
  3        (5)  A  water  right  shall  not  be lost or forfeited by a failure of the
  4    owner of the right to divert and apply the water to beneficial use  while  the
  5    water  right  is  placed  in the water supply bank or is retained in or rented
  6    from the water supply bank pursuant  to  sections  42-1761  through  42-1765A,
  7    Idaho  Code,  or  while  the water right is leased pursuant to sections 43-335
  8    through 43-342, Idaho Code, or sections 42-2501 through 42-2509,  Idaho  Code,
  9    or while use of the water is made under any other provision of law authorizing
 10    the rental or lease of water rights.
 11        (6)  No  portion  of any water right shall be lost or forfeited for nonuse
 12    if the nonuse results from circumstances over which the water right owner  has
 13    no  control.  Whether  the  water right owner has control over nonuse of water
 14    shall be determined on a case-by-case basis.
 15        (7)  No portion of a water right held by an irrigation district,  a  Carey
 16    Act  operating  company,  or  any  other company, corporation, association, or
 17    entity which holds water rights for distribution  to  its  landowners,  share-
 18    holders  or  members shall be lost or forfeited due to nonuse by such landown-
 19    ers, shareholders or members, unless the nonuse is subject to the  control  of
 20    such entity.
 21        (8)  No  portion  of a water right held by an irrigation district shall be
 22    lost, forfeited or subject to forfeiture as a result of the exclusion of  land
 23    from the district pursuant to chapter 11, title 43, Idaho Code, so long as any
 24    five  (5)  year  period of nonuse following the exclusion does not result from
 25    circumstances over which the district has control.
 26        (9)  No portion of any water right shall be lost or forfeited  for  nonuse
 27    if  the nonuse results from a water conservation practice, which maintains the
 28    full beneficial use authorized by the  water  right,  as  defined  in  section
 29    42-250, Idaho Code.
 30        (10) No  portion  of any water right shall be lost or forfeited for nonuse
 31    if the nonuse results from the water right being used for mitigation  purposes
 32    approved  by  the director of the department of water resources including as a
 33    condition of approval for a new water right appropriation approved pursuant to
 34    section 42-203A, Idaho Code, a water right transfer approved pursuant to  sec-
 35    tion 42-222, Idaho Code, a water exchange approved pursuant to section 42-240,
 36    Idaho Code, or a mitigation plan approved in accordance with rules promulgated
 37    pursuant to section 42-603, Idaho Code.

Statement of Purpose / Fiscal Impact


                     STATEMENT  OF  PURPOSE
                           RS 13473c1
The purpose of this legislation is to provide assurance that a
water right is not subject to forfeiture for non-use if it is being
used as approved by the Director of the Department of Water
Resources to mitigate for the effects of using water under a
portion of the same or another water right.






                         FISCAL  IMPACT
Enactment of this legislation will have no effect upon the state's
General Fund or other state or local funds.





CONTACT   
Name:     Karl J. Dreher
Agency:   Water Resources
Phone:    (208) 327-7910

Statement of Purpose/Fiscal Impact                        H 633