2006 Legislation
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HOUSE BILL NO. 545 – N. Idaho water rights adjudication

HOUSE BILL NO. 545

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Bill Status



H0545.........................................by RESOURCES AND CONSERVATION
WATER RIGHTS ADJUDICATION - NORTHERN IDAHO - Adds to and amends existing
law relating to water to provide for Northern Idaho water rights
adjudication; to revise fee provisions for filing notice of claims with the
Director of the Department of Water Resources; to provide legislative
findings relating to accomplished transfers and the public interest
regarding Northern Idaho adjudications; to provide that certain changes of
place of use, points of diversion, nature or purpose of use, or period of
use of a water right may be claimed in the Northern Idaho adjudications;
and to provide for objections to recommendations for specified accomplished
changes.
                                                                        
02/02    House intro - 1st rdg - to printing
02/03    Rpt prt - to Res/Con
02/24    Rpt out - rec d/p - to 2nd rdg
02/27    2nd rdg - to 3rd rdg
03/02    3rd rdg - PASSED - 64-1-5
      AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer,
      Bedke, Bell, Bilbao, Black, Boe, Bolz, Brackett, Bradford, Cannon,
      Chadderdon, Clark, Collins, Deal, Denney, Edmunson, Ellsworth,
      Eskridge, Field(23), Garrett, Hart, Henbest, Henderson, Jaquet, Kemp,
      Lake, LeFavour, Loertscher, Martinez, Mathews, Miller, Mitchell,
      Moyle, Nielsen, Nonini, Pasley-Stuart, Pence, Raybould, Ring, Ringo,
      Roberts, Rusche, Rydalch, Sali, Sayler, Schaefer, Shepherd(2),
      Shepherd(8), Shirley, Skippen, Smith(30), Smith(24), Smylie,
      Snodgrass, Stevenson, Trail, Wills, Wood, Mr. Speaker
      NAYS -- Harwood
      Absent and excused -- Block, Crow, Field(18), McGeachin, McKague
    Floor Sponsors - Clark & Sayler
    Title apvd - to Senate
03/03    Senate intro - 1st rdg - to Res/Env
03/16    Rpt out - rec d/p - to 2nd rdg
03/17    2nd rdg - to 3rd rdg
03/22    3rd rdg - PASSED - 30-5-0
      AYES -- Andreason, Bunderson, Burkett(Clark), Burtenshaw, Cameron,
      Coiner, Compton, Corder, Darrington, Davis, Fulcher, Gannon, Geddes,
      Hill, Jorgenson, Kelly, Keough, Langhorst, Little, Lodge, Malepeai,
      Marley, McGee, McKenzie, Richardson, Stegner, Stennett, Sweet, Werk,
      Williams
      NAYS -- Brandt, Broadsword, Goedde, Pearce, Schroeder
      Absent and excused -- None
    Floor Sponsor - Jorgenson
    Title apvd - to House
03/23    To enrol
03/24    Rpt enrol - Sp signed
03/27    Pres signed
03/28    To Governor
03/30    Governor signed
         Session Law Chapter 222
         Effective: 07/01/06

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   Second Regular Session - 2006
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 545
                                                                        
                          BY RESOURCES AND CONSERVATION COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO WATER; AMENDING CHAPTER 14, TITLE 42, IDAHO CODE, BY THE  ADDITION
  3        OF  A  NEW SECTION 42-1406B, IDAHO CODE, TO PROVIDE FOR SPECIFIED NORTHERN
  4        IDAHO WATER RIGHTS ADJUDICATIONS; AMENDING SECTION 42-1414, IDAHO CODE, TO
  5        REVISE FEE PROVISIONS FOR FILING NOTICE OF CLAIMS WITH THE DIRECTOR OF THE
  6        DEPARTMENT OF WATER RESOURCES; AND AMENDING SECTION 42-1425,  IDAHO  CODE,
  7        TO PROVIDE LEGISLATIVE FINDINGS RELATING TO ACCOMPLISHED TRANSFERS AND THE
  8        PUBLIC  INTEREST  REGARDING  NORTHERN IDAHO ADJUDICATIONS, TO PROVIDE THAT
  9        CERTAIN CHANGES OF PLACE OF USE, POINTS OF DIVERSION, NATURE OR PURPOSE OF
 10        USE, OR PERIOD OF USE OF A WATER RIGHT MAY  BE  CLAIMED  IN  THE  NORTHERN
 11        IDAHO  ADJUDICATIONS  AND TO PROVIDE FOR OBJECTIONS TO RECOMMENDATIONS FOR
 12        SPECIFIED ACCOMPLISHED CHANGES.
                                                                        
 13    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 14        SECTION 1.  That Chapter 14, Title 42, Idaho Code, be,  and  the  same  is
 15    hereby  amended by the addition thereto of a NEW SECTION, to be known and des-
 16    ignated as Section 42-1406B, Idaho Code, and to read as follows:
                                                                        
 17        42-1406B.  NORTHERN IDAHO WATER RIGHTS ADJUDICATIONS -- COMMENCEMENT.  (1)
 18    Effective  management  of the waters of northern Idaho requires that a compre-
 19    hensive determination of the nature, extent and priority of the rights of  all
 20    users  of  surface  and ground water be determined. Therefore, the director of
 21    the department of water resources shall petition the district  court  to  com-
 22    mence adjudications within the terms of the McCarran amendment, 43 U.S.C. sec-
 23    tion  666,  of the water rights from surface water and ground water sources in
 24    northern Idaho through initiation of three (3) proceedings. Separate petitions
 25    shall be filed for water rights adjudications for each of the following  river
 26    basins,  and  related  ground  water sources whether or not hydraulically con-
 27    nected to a surface water source,  within  Idaho:  the  Coeur  d'Alene-Spokane
 28    river  basin,  the  Palouse  river basin, and the Kootenai and Clark Fork-Pend
 29    Oreille river basins. The filing of each petition shall be contingent on  leg-
 30    islative  funding approval. Each petition shall describe the boundaries of the
 31    water source or water sources to be adjudicated.
 32        (2)  The adjudication shall be brought in any district court in which  any
 33    part  of the water source is located or before a court of special jurisdiction
 34    for water right adjudications. Unless otherwise ordered by the supreme  court,
 35    special  jurisdiction for the water rights general adjudications authorized by
 36    this section shall reside in the Snake River Basin Adjudication district court
 37    of the fifth judicial district of the state of Idaho, in and for the county of
 38    Twin Falls. The clerk of the district court in which  the  petition  is  filed
 39    shall send to the supreme court a true and certified copy of the petition. The
 40    supreme  court,  by  order, shall assign the judge to preside over the general
 41    adjudication. Venue of the general adjudication shall be determined  by  order
 42    or rule of the supreme court and venue of hearings under the general adjudica-
 43    tion shall be determined by order of the presiding judge.
                                                                        
                                           2
                                                                        
  1        (3)  Upon  issuance of an order by the district court which authorizes the
  2    director to commence an investigation and determination of the  various  water
  3    rights  to  be  adjudicated  from the water source or water sources, and which
  4    defines the boundaries of the source or sources within the state to be adjudi-
  5    cated, the director of the department of water resources shall proceed in  the
  6    manner  provided under the provisions of chapter 14, title 42, Idaho  Code, to
  7    the extent not inconsistent with the provisions of this section.
                                                                        
  8        SECTION 2.  That Section 42-1414, Idaho Code, be, and the same  is  hereby
  9    amended to read as follows:
                                                                        
 10        42-1414.  FEES FOR FILING NOTICE OF CLAIMS WITH THE DIRECTOR. (1) In order
 11    to  provide  an  adequate and equitable cost-sharing formula for financing the
 12    costs of adjudicating water rights the department  of  water  resources  shall
 13    accept  no  notice  of claim required under the provisions of section 42-1409,
 14    Idaho Code, unless such notice of claim is submitted with a filing  fee  based
 15    upon  the  fee schedule set forth below. Failure to pay the variable water use
 16    fee in accordance with the timetable provided shall be cause for  the  depart-
 17    ment  to reject and return the notice of claim to the claimant. The fee sched-
 18    ule set forth below applies to adjudication proceedings commenced or  enlarged
 19    on or after January 1, 1985.
 20        (a)  Flat fee per claim filed:
 21             (i)   Claims  for domestic and/or stock watering rights based on per-
 22             mit, license, decree or statutory claim ..................... $250.00
 23             (ii)  Claims for all other rights .......................... $5100.00
 24        (b)  Additional variable water use fee for claims filed based  upon  acre-
 25        age, power generating capacity, c.f.s., or equivalent volume of water:
 26             (i)   Irrigation use (one fee irrespective of number of
 27             claims): ........................................... $ 12.00 per acre
 28             (ii)  Power: .................... $ 3.507.00 per kilowatt of capacity
 29             (manufacturer's nameplate rating)
 30             (iii) Aquaculture: .............................. $ 120.00 per c.f.s.
 31             (iv)  Municipal, industrial, commercial, mining, heating, cooling: ..
 32             ................................................. $1200.00 per c.f.s.
 33             (v)   Public instream flow, public lake level maintenance, wildlife: .
 34             ........................................................ $1200.00 per
 35             c.f.s.
 36        (c)  Payment of a variable water use fee of more than one thousand dollars
 37        ($1,000)  may be spread out over as many as five (5) annual equal payments
 38        with ten percent (10%) interest accruing on the unpaid balance.  All  fees
 39        collected  by  the  department pursuant to this section shall be placed in
 40        the water resources adjudication account established in  section  42-1777,
 41        Idaho Code.
 42        (2)  If  a  claimant increases in an amended notice of claim the amount of
 43    water claimed, the amount of land irrigated, or the kilowatt capacity  of  the
 44    generating  facility, the claimant shall pay upon filing the amended notice of
 45    claim an additional variable fee in accordance with the  rates  set  forth  in
 46    subsection  (1)  of  this  section. Claimants shall be entitled to a return of
 47    filing fees or late fees only where the fee was miscalculated at the time  the
 48    original or amended notice of claim was filed.
 49        (3)  If  a  claimant  files  a  notice  of claim after the date set by the
 50    director in the notice mailed or served in accordance  with  subsections  (2),
 51    (3),  or (4) of section 42-1408, Idaho Code, or with subsection (7) of section
 52    42-1409, Idaho Code;, the claimant shall pay the fee set forth  in  subsection
 53    (1)  of this section, and in addition, the amount of fifty one hundred dollars
                                                                        
                                           3
                                                                        
  1    ($50.100) or fifteen percent (15%) of the original filing  fee,  whichever  is
  2    greater.  The  director may waive the late processing fee or a portion thereof
  3    for good cause.
                                                                        
  4        SECTION 3.  That Section 42-1425, Idaho Code, be, and the same  is  hereby
  5    amended to read as follows:
                                                                        
  6        42-1425.  ACCOMPLISHED   TRANSFERS.  (1)  Legislative  findings  regarding
  7    accomplished transfers and the public interest.
  8        (a)  The legislature finds and declares that prior to the commencement  of
  9        the  Snake River basin adjudication, and the northern Idaho adjudications,
 10        many persons entitled to the use of water or owning land  to  which  water
 11        has  been  made  appurtenant either by decree of the court or under provi-
 12        sions of the constitution and statutes of this state changed the place  of
 13        use,  point  of  diversion,  nature or purpose of use, or period of use of
 14        their water rights without compliance with the transfer provisions of sec-
 15        tions 42-108 and 42-222, Idaho Code.
 16        (b)  The legislature finds that many of these changes  occurred  with  the
 17        knowledge  of other water users and that the water has been distributed to
 18        the right as changed. The legislature further finds and declares that  the
 19        continuation  of  the  historic  water  use  patterns resulting from these
 20        changes is in the local public interest provided no other  existing  water
 21        right  was  injured  at  the  time  of the change. Denial of a claim based
 22        solely upon a failure to comply with sections  42-108  and  42-222,  Idaho
 23        Code, where no injury or enlargement exists, would cause significant undue
 24        financial  impact  to  a  claimant  and the local economy. Approval of the
 25        accomplished transfer through the procedure  set  forth  in  this  section
 26        avoids  the  harsh economic impacts that would result from a denial of the
 27        claim.
 28        (c)  The legislature further finds and declares that examination of  these
 29        changes  by  the  director through the procedures of section 42-222, Idaho
 30        Code, would be impractical and unduly burdensome. The more limited  exami-
 31        nation  of  these changes provided for in this section, constitutes a rea-
 32        sonable procedure for an expeditious review by the director while ensuring
 33        that the changes do not injure other existing water rights  or  constitute
 34        an enlargement of use of the original right.
 35        (2)  Any  change of place of use, point of diversion, nature or purpose of
 36    use or period of use of a water right by any person entitled to use  of  water
 37    or  owning  any land to which water has been made appurtenant either by decree
 38    of the court or under the provisions of the constitution and statutes of  this
 39    state, prior to November 19, 1987, the date of commencement of the Snake River
 40    basin adjudication, and prior to January 1, 2006, for the northern Idaho adju-
 41    dications  authorized by section 42-1406B, Idaho Code, may be claimed in a the
 42    applicable general adjudication even though the person has not  complied  with
 43    sections  42-108 and 42-222, Idaho Code, provided no other water rights exist-
 44    ing on the date of the change were injured and the change did not result in an
 45    enlargement of the original right. Except for the consent requirements of sec-
 46    tion 42-108, Idaho Code, all requirements of sections 42-108 and 42-222, Idaho
 47    Code, are hereby waived in accordance with the following procedures:
 48        (a)  If an objection is filed to a claim recommendation  for  accomplished
 49        change  of  place  of use, point of diversion, nature or purpose of use or
 50        period of use, the district court shall remand  the  water  right  to  the
 51        director  for  further  hearing  to determine whether the change injured a
 52        water right existing on the date of the change or constituted an  enlarge-
 53        ment  of  the original right. After a hearing, the director shall submit a
                                                                        
                                           4
                                                                        
  1        supplemental report to the district court setting forth his  findings  and
  2        conclusions.  If  the claimant or any person who filed an objection to the
  3        accomplished transfer is aggrieved by the director's  determination,  they
  4        may  seek  review  before the district court. If the change is disallowed,
  5        the claimant shall be entitled to resume use of the original water  right,
  6        provided  such resumption of use will not cause injury or can be mitigated
  7        to prevent injury to existing water rights. The  unapproved  change  shall
  8        not be deemed a forfeiture or abandonment of the original water right.
  9        (b)  This section is not applicable to any claim based upon an enlargement
 10        of use.

Statement of Purpose / Fiscal Impact


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                       STATEMENT OF PURPOSE

                             RS 15705

This legislation authorizes the initiation of general water
rights adjudication for those portions of northern Idaho not
included within the Snake River Basin. The legislation authorizes
the adjudication of all rights to the use of water from surface
water and ground water sources whether or not hydraulically
connected within the Coeur d'Alene-Spokane River Basin, the
Palouse River Basin and the Kootenai and Clark Fork-Pend Oreille
River Basins.
     The Ground Water Management Plan Advisory Committee for the
Rathdrum Prairie-Spokane Aquifer recommended the adjudication of
water rights as an element of the Management Plan for the
aquifer. The Legislature's approval of the Department of 
Water Resources' budget for fiscal year 2006 included direction
to the Department to work with the Rathdrum Ground Water
Management Plan Advisory Committee and local elected officials to
determine the feasibility, cost and potential funding mechanisms
to begin the adjudication of water rights in the Coeur d'Alene
Basin. (2005 Idaho Session Laws, Chapter 172, Section 4) This
legislation providing for the adjudication of all water rights in
northern Idaho, subject to funding availability, is the result of
the directed coordination.



                           FISCAL NOTE

The projected cost for the adjudication of all water rights in the
remaining un-adjudicated basins in northern Idaho is $16.2 million
over a nine year period, plus funding for the negotiation of
federal claims. The legislation proposes to double the existing
adjudication claim fees as established by statute in 1985 for the
Snake River Basin Adjudication. The claim filing fees are
anticipated to provide for about one third of the cost of the
northern Idaho adjudication. This percentage is similar to the
funding provided by fees in the Snake River Basin Adjudication.
The cost for FY 2007 is projected to be $1.335 million, to be
provided from the general fund. It is anticipated that funds from
claim fees will be collected beginning in FY 2008.



Contact
Name: Rep. Jim Clark 
Phone: (208) 332-1000
Rep.  George Sayler
Co-Sponsors: Reps. Eric Anderson, George Eskridge, Mary Lou
Shepherd, Phil Hart, Marge Chadderdon, Frank Henderson and Bob
Nonini. Senators Shawn Keough, Mike Jorgenson, and Dick Compton


STATEMENT OF PURPOSE/FISCAL NOTE                           H 545