View Daily Data Tracking History
View Bill Text
View Statement of Purpose / Fiscal Impact
H0748aa.......................................by RESOURCES AND CONSERVATION
NATURAL WATERWAYS - Amends and adds to existing law to provide that the use
of natural waterways is subject to measurement, regulation and reporting;
and to provide that a person seeking to exchange rights to the use of water
between existing water rights or with a water source shall make application
for such an exchange with the Department of Water Resources
02/18 House intro - 1st rdg - to printing
02/19 Rpt prt - to Res/Con
02/26 Rpt out - to Gen Ord
03/04 Rpt out amen - to engros
03/05 Rpt engros - 1st rdg - to 2nd rdg as amen
03/06 2nd rdg - to 3rd rdg as amen
03/09 3rd rdg as amen - PASSED - 67-0-3
AYES -- Alltus, Barraclough, Barrett, Bell, Bieter, Bivens,
Black(15), Black(23), Boe, Bruneel, Callister, Campbell, Chase,
Clark, Crane, Crow, Cuddy, Deal, Denney, Ellsworth, Gagner, Geddes,
Gould, Hadley, Hansen, Henbest, Hornbeck, Jaquet, Jones(9),
Jones(22), Judd, Kellogg, Kempton, Kendell, Kjellander, Kunz, Lake,
Linford, Loertscher, Mader, Marley, McKague, Meyer, Miller,
Mortensen, Newcomb, Pischner, Pomeroy, Reynolds, Richman, Ridinger,
Robison, Sali, Schaefer, Stevenson, Stoicheff, Stone, Stubbs, Taylor,
Tilman, Tippets, Trail, Watson, Wheeler, Wood, Zimmermann, Mr Speaker
NAYS -- None
Absent and excused -- Field(13), Field(20), Jones(20),
Floor Sponsor - Linford
Title apvd - to Senate
03/10 Senate intro - 1st rdg as amen - to Res/Env
03/16 Rpt out - rec d/p - to 2nd rdg as amen
03/17 2nd rdg - to 3rd rdg as amen
03/19 3rd rdg as amen - PASSED - 33-0-2
AYES--Andreason, Boatright, Branch, Bunderson, Burtenshaw, Cameron,
Crow, Danielson, Darrington, Deide, Dunklin, Frasure, Geddes,
Hawkins, Ingram, Ipsen, Keough, King, Lee, McLaughlin, Noh, Parry,
Richardson, Riggs, Risch, Sandy, Schroeder, Stennett, Sweeney,
Thorne, Twiggs, Wheeler, Whitworth
NAYS--None
Absent and excused--Hansen, Sorensen
Floor Sponsor - Lee
Title apvd - to House
03/20 To enrol - rpt enrol - Sp signed
03/20 Pres signed - to Governor
03/30 Governor signed
Session Law Chapter 424
Effective: 07/01/98
H0748|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fourth Legislature Second Regular Session - 1998IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 748, As Amended BY RESOURCES AND CONSERVATION COMMITTEE 1 AN ACT 2 RELATING TO WATER EXCHANGES AND COMMINGLED WATER; AMENDING SECTION 42-105, 3 IDAHO CODE, TO MAKE TECHNICAL CORRECTIONS, TO PROVIDE THAT THE USE OF NAT- 4 URAL WATERWAYS TO CONVEY WATER IS SUBJECT TO REGULATION, MEASUREMENT AND 5 REPORTING, AND TO PROVIDE THAT A PERSON SEEKING TO EXCHANGE RIGHTS TO THE 6 USE OF WATER BETWEEN EXISTING WATER RIGHTS OR WITH A WATER SOURCE SHALL 7 MAKE APPLICATION UNDER THE PROVISIONS OF SECTION 42-240, IDAHO CODE; AND 8 AMENDING CHAPTER 2, TITLE 42, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 9 42-240, IDAHO CODE, TO PROVIDE A PROCEDURE FOR FILING WITH THE DEPARTMENT 10 OF WATER RESOURCES AN APPLICATION TO EXCHANGE WATER FROM A SURFACE WATER 11 SOURCE WITH OTHER WATER FROM A SURFACE WATER SOURCE, AND TO PROVIDE FOR 12 THE PAYMENT OF A FILING FEE, PUBLICATION OF NOTICE, PROTEST AND HEARING, 13 DECISION BY THE DIRECTOR AND OPPORTUNITY FOR JUDICIAL REVIEW. 14 Be It Enacted by the Legislature of the State of Idaho: 15 SECTION 1. That Section 42-105, Idaho Code, be, and the same is hereby 16 amended to read as follows: 17 42-105. USE OF NATURALCHANNELSWATERWAYS -- 18 MEASUREMENT OF COMMINGLED WATER --APPLICATION FORAPPROVAL 19 OF RIGHT TO EXCHANGE WATER. (1) The waterto which20that a personmay beis entitled 21 to divert by reason of a validpermit or22license issued by the department of water resources ofwater right 23heretofore established by diversion and application to beneficial use24under the constitution of this statemay be turned into the channel of 25another streama natural waterway and mingled with 26 its water, and then reclaimed; and water may be turned into any ditch,27natural channel or waterway from reservoirs or other sources of water supply,28and such water may be substituted or exchanged for an equal amount of water29diverted from the stream, creek or river into which such water flows, or any30tributary thereof, but in reclaiming the water so mingled,or31diverting water in lieu thereof from any such stream, creek, river or tribu-32tary,the amount of water to which prior appropriators may be entitled 33 shall not be diminished, and due allowance shall be made for loss by evapora- 34 tion and seepage.Approval of any such exchange of water shall be35obtained by filing application for permit to appropriate water under the pro-36visions of section 42-202, Idaho Code, in the event the water to be exchanged37is unappropriated public water, or by filing an application to exchange water38as provided in this act in the event the water to be exchanged has been previ-39ously appropriated by the applicant under the constitution or statutes of this40state. In no case, however, shall any such exchange of water be approved by41the department of water resources until the department has received an agree-42ment in form approved by the attorney general signed by the person proposing43the exchange and each person or organization owning rights to water with whom2 1such exchange is proposed to be madeThe use of natural waterways 2 to commingle and reclaim water shall be subject at all times to the supervi- 3 sion and control of the director of the department of water resources and 4 shall be subject to the regulation of the watermaster within an established 5 water district. The amounts of water turned into or diverted from all natural 6 waterways are subject to the requirement of measurement and reporting. 7 (2) The water that a person is entitled to divert by reason of a valid 8 water right, or water that a person is seeking to appropriate, may be 9 exchanged for water under another water right, or for other water from the 10 same or another source, as hereinafter provided: 11 (a) If the applicant intends to exchange water the applicant is entitled 12 to divert under an existing valid water right for any other water, 13 approval of the exchange shall be obtained by filing an application under 14 the provisions of section 42-240, Idaho Code; 15 (b) If the applicant proposes to exchange water that the applicant is 16 seeking to appropriate, approval of the exchange shall be obtained by fil- 17 ing an application to appropriate water under section 42-202, Idaho Code. 18 The proposed exchange shall be described in the application and the appli- 19 cation shall be processed in accordance with the provisions of section 20 42-203A, Idaho Code. If the application seeks to exchange the water to be 21 appropriated with water available under another water right, the applica- 22 tion shall be accompanied by an agreement to exchange signed by the owner 23 of the existing water right. An exchange with water under an existing 24 water right cannot result in an enlargement in use of the existing right 25 . 26 (3)Any suchAn exchange of water 27 hereafter made without the approval of the department of water resources as 28 provided in thisactsection shall be invalid. 29 Nothing in this section shall affect the right a person may have or may obtain 30 to turn water into a ditch or other artificial conveyance and reclaim the 31 water. 32 SECTION 2. That Chapter 2, Title 42, Idaho Code, be, and the same is 33 hereby amended by the addition thereto of a NEW SECTION , to be 34 known and designated as Section 42-240, Idaho Code, and to read as follows: 35 42-240. APPLICATION FOR RIGHT TO EXCHANGE WATER -- FILING FEE -- NOTICE 36 -- PROTEST -- HEARING -- APPROVAL OR DENIAL -- APPEAL. (1) Any person holding 37 a right for the use of surface water may make application to the director of 38 the department of water resources to exchange water authorized to be diverted 39 under the right with the same or a different source, or with water authorized 40 to be diverted under one (1) or more other rights from the same source or 41 another surface water source. If the application proposes an exchange with 42 water under another water right, the application shall be accompanied by an 43 agreement in writing subscribed by the person proposing the exchange and each 44 person or organization owning rights to water with whom the exchange is pro- 45 posed to be made. 46 (2) The application shall be upon forms furnished by the department and 47 shall contain such information as shall enable the director to determine the 48 nature of the proposed exchange, and shall be accompanied by the statutory 49 filing fee provided under section 42-221, Idaho Code, for an application to 50 change a vested water right. 51 (3) Upon receipt of the application, it shall be the duty of the director 52 to examine the same and, if otherwise proper, to cause notice of the proposed 53 exchange to be published in the same manner as applications under section 3 1 42-203A, Idaho Code. The notice shall fully describe the nature of the pro- 2 posed exchange of water and shall advise that anyone who wishes to protest 3 shall file notice of protest in accordance with the provisions of section 4 42-203A, Idaho Code. 5 (4) Upon the receipt of any protest it shall be the duty of the director 6 to investigate the same and to conduct a hearing thereon. The director shall 7 also advise the watermaster of the district in which the exchange is proposed, 8 if a district exists, and the watermaster shall notify the director of the 9 watermaster's recommendations on the application. The director shall not take 10 final action on the application or exchange until the director has received 11 the recommendations of the watermaster, including recommended conditions nec- 12 essary for the exchange of water to be properly administered and regulated. 13 (5) The director shall examine all the evidence and available information 14 and shall approve the exchange in whole, or in part, or upon conditions, pro- 15 vided no other water rights are injured thereby, the exchange does not consti- 16 tute an enlargement in use of the original right or rights, the exchange is 17 consistent with the conservation of water resources within the state of Idaho, 18 and the exchange is in the local public interest as defined in section 19 42-203A, Idaho Code. Unless otherwise provided in a written agreement between 20 the applicant and other right holders, the director shall condition approval 21 of an exchange so that the exchange will not be operative during times when 22 water is not available to satisfy the exchange, and that during these times 23 the right to use water automatically reverts to the place of use authorized 24 under the water rights. A copy of the approved application for exchange shall 25 be provided to the applicant and the watermaster, and the applicant shall be 26 authorized upon receipt thereof to make the exchange in accordance with the 27 conditions set forth by the director. Should an approved exchange thereafter 28 be discontinued, the applicant or the applicant's successor in interest must 29 so notify the director and the district watermaster. 30 (6) In the absence of a contrary agreement by the parties to an exchange, 31 when the director has approved a right to exchange storage water for the natu- 32 ral flow of a stream or other water supply, the storage water shall be deliv- 33 ered in preference to any exchange rights subsequently approved using the same 34 storage water right. 35 (7) Any person or persons feeling themselves aggrieved by a final order 36 or final action of the director under this section may, if a protest was filed 37 and hearing held thereon, seek judicial review pursuant to section 38 42-1701A(4), Idaho Code. If no protest was filed and no hearing held, the 39 applicant may request a hearing pursuant to section 42-1701A(3), Idaho Code, 40 for the purpose of contesting the action of the director and may seek judicial 41 review of the final order of the director following the hearing pursuant to 42 section 42-1701A(4), Idaho Code.
STATEMENT OF PURPOSE
RS 08106
In 1986, Section 42-240, Idaho Code, providing an
administrative procedure for the exchange of water rights
was inadvertently repealed. The general authority for such
exchanges remains in Section 42-105, Idaho Code. The
administrative procedure should be returned to allow water
users to exchange water rights to enhance the coordinated
use of available water supplies.
FISCAL NOTE
The administrative cost of processing exchanges will
be covered by a filing fee paid by the applicant.
CONTACT: Representative Golden Linford
(208) 332-1000
STATEMENT OF PURPOSE/FISCAL NOTE
H 748