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H0546.........................................by RESOURCES AND CONSERVATION WATER RESOURCES - Amends existing law to authorize the Director of the Department of Water Resources to impose sanctions for filing a pleading related to water right filings with the department that is not reasonably grounded in fact or law. 02/10 House intro - 1st rdg - to printing 02/11 Rpt prt - to Res/Con 02/22 Rpt out - rec d/p - to 2nd rdg 02/23 2nd rdg - to 3rd rdg 02/25 3rd rdg - PASSED - 53-10-7 AYES -- Alltus, Barraclough, Barrett, Bell, Black, Bruneel, Callister, Campbell, Cheirrett, Clark, Crow, Cuddy, Deal, Denney, Ellsworth, Field(13), Gagner, Geddes, Hadley, Hammond, Hansen(23), Hornbeck, Judd, Kempton, Kunz, Lake, Linford, Loertscher, Mader, Marley, McKague, Meyer, Montgomery, Mortensen, Moss, Moyle, Pearce, Pomeroy, Reynolds, Ridinger, Sali, Schaefer, Shepherd, Smith, Smylie, Stevenson, Stone, Taylor, Tilman, Trail(Miller), Wheeler, Wood, Zimmermann NAYS -- Bieter, Boe, Field(20), Henbest, Jaquet, Kendell, Ringo, Robison, Sellman, Stoicheff Absent and excused -- Chase, Gould, Hansen(29), Jones, Kellogg, Pischner, Mr Speaker Floor Sponsors - Cuddy, Moyle Title apvd - to Senate 02/28 Senate intro - 1st rdg - to Res/Env
|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fifth Legislature Second Regular Session - 2000 IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 546 BY RESOURCES AND CONSERVATION COMMITTEE 1 AN ACT 2 RELATING TO APPEALS FROM APPLICATION TO APPROPRIATE WATERS; AMENDING SECTIONS 3 42-203A AND 42-222, IDAHO CODE, TO AUTHORIZE THE DIRECTOR OF THE DEPART- 4 MENT OF WATER RESOURCES TO IMPOSE APPROPRIATE SANCTIONS FOR FILING A 5 PLEADING NOT REASONABLY GROUNDED IN FACT OR LAW AND TO MAKE TECHNICAL COR- 6 RECTIONS. 7 Be It Enacted by the Legislature of the State of Idaho: 8 SECTION 1. That Section 42-203A, Idaho Code, be, and the same is hereby 9 amended to read as follows: 10 42-203A. NOTICE UPON RECEIPT OF APPLICATION -- PROTEST -- HEARING AND 11 FINDINGS -- APPEALS. (1) Upon receipt of an application to appropriate the 12 waters of this state, the department of water resources, shall prepare a 13 notice in such form as the department may prescribe, specifying: (a) the num- 14 ber of the application; (b) the date of filing thereof; (c) the name and post- 15 office address of the applicant; (d) the source of the water supply; (e) the 16 amount of water to be appropriated; (f) in general the nature of the proposed 17 use; (g) the approximate location of the point of diversion; (h) and the point 18 of use. The department shall also state in said notice that any protest 19 against the approval of such application, in form prescribed by the depart- 20 ment, shall be filed with the department within ten (10) days from the last 21 date of publication of such notice. 22 (2) The director of the department of water resources shall cause the 23 notice to be published in a newspaper printed within the county wherein the 24 point of diversion lies, or in the event no newspaper is printed in said 25 county, then in a newspaper of general circulation therein. When the applica- 26 tion proposes a diversion in excess of ten (10) c.f.s. or one thousand (1,000) 27 acre feet, the director shall cause the notice to be published in a newspaper 28 or newspapers sufficient to achieve statewide circulation. Any notice shall be 29 published at least once each week for two (2) successive weeks. 30 (3) The director of the department shall cause a copy of the notice of 31 application to be sent by ordinary mail to any person who requests in writing 32 to receive any class of notices of application and who pays an annual mailing 33 fee as established by departmental regulationrule. 34 (4) Any person, firm, association or corporation concerned in any such 35 application may, within the time allowed in the notice of application, file 36 with said director of the department of water resources a written protest, 37 together with the statutory filing fee as provided in section 42-221, Idaho 38 Code, against the approval of such application, which protest shall state the 39 name and address of protestant and shall be signed by him or by his agent or 40 attorney and shall clearly set forth his objections to the approval of such 41 application. Hearing upon the protest so filed shall be held within sixty (60) 42 days from the date such protest is received. Notice of this hearing shall be 43 given by mailing notice not less than ten (10) days before the date of hearing 2 1 and shall be forwarded to both the applicant and the protestant, or 2 protestants, by certified mail. Such notice shall state the names of the 3 applicant and protestant, or protestants, the time and place fixed for the 4 hearing and such other information as the director of the department of water 5 resources may deem advisable. In the event that no protest is filed, then the 6 director of the department of water resources may forthwith approve the appli- 7 cation, providing the same in all respects conforms with the requirements of 8 this chapter, and with the regulationsrules of the department of water 9 resources. 10 (5) Such hearing shall be conducted in accordance with the provisions of 11 section 42-1701A(1) and (2), Idaho Code. The director of the department of 12 water resources shall find and determine from the evidence presented to what 13 use or uses the water sought to be appropriated can be and are intended to be 14 applied. In all applications whether protested or not protested, where the 15 proposed use is such (a) that it will reduce the quantity of water under 16 existing water rights, or (b) that the water supply itself is insufficient for 17 the purpose for which it is sought to be appropriated, or (c) where it appears 18 to the satisfaction of the director that such application is not made in good 19 faith, is made for delay or speculative purposes, or (d) that the applicant 20 has not sufficient financial resources with which to complete the work 21 involved therein, or (e) that it will conflict with the local public interest, 22 where the local public interest is defined as the affairs of the people in the 23 area directly affected by the proposed use, or (f) that it is contrary to con- 24 servation of water resources within the state of Idaho; the director of the 25 department of water resources may reject such application and refuse issuance 26 of a permit therefor, or may partially approve and grant a permit for a 27 smaller quantity of water than applied for, or may grant a permit upon condi- 28 tions. The provisions of this section shall apply to any boundary stream 29 between this and any other state in all cases where the water sought to be 30 appropriated has its source largely within the state, irrespective of the 31 location of any proposed power generating plant. 32 (6) Any person or corporation who has formally appeared at the hearing, 33 aggrieved by the judgment of the director of the department of water 34 resources, may seek judicial review thereof in accordance with section 35 42-1701A(4), Idaho Code. 36 (7) The director may impose appropriate sanctions upon any party for fil- 37 ing a pleading with the department that is not reasonably grounded in fact or 38 law, or that is prosecuted or used in an improper manner so as to cause unnec- 39 essary delay, increased costs, or harassment. Appropriate sanctions may 40 include payment of the reasonable costs and expenses thereby incurred by the 41 other party or parties to the proceeding. The authority to impose sanctions 42 shall be exercised in the sound discretion of the director and shall not be 43 delegated by the director. Any party may seek judicial review of a final order 44 imposing sanctions in accordance with section 42-1701A(4), Idaho Code. 45 SECTION 2. That Section 42-222, Idaho Code, be, and the same is hereby 46 amended to read as follows: 47 42-222. CHANGE IN POINT OF DIVERSION, PLACE OF USE, PERIOD OF USE, OR 48 NATURE OF USE OF WATER UNDER ESTABLISHED RIGHTS -- FORFEITURE AND EXTENSION -- 49 APPEALS. (1) Any person, entitled to the use of water whether represented by 50 license issued by the department of water resources, by claims to water rights 51 by reason of diversion and application to a beneficial use as filed under the 52 provisions of this chapter, or by decree of the court, who shall desire to 53 change the point of diversion, place of use, period of use or nature of use of 3 1 all or part of the water, under the right shall first make application to the 2 department of water resources for approval of such change. Such application 3 shall be upon forms furnished by the department and shall describe the right 4 licensed, claimed or decreed which is to be changed and the changes which are 5 proposed, and shall be accompanied by the statutory filing fee as in this 6 chapter provided. Upon receipt of such application it shall be the duty of the 7 director of the department of water resources to examine same, obtain any con- 8 sent required in section 42-108, Idaho Code, and if otherwise proper to pro- 9 vide notice of the proposed change in the same manner as applications under 10 section 42-203A, Idaho Code. Such notice shall advise that anyone who desires 11 to protest the proposed change shall file notice of protests with the depart- 12 ment within ten (10) days of the last date of publication. Upon the receipt of 13 any protest, accompanied by the statutory filing fee as provided in section 14 42-221, Idaho Code, it shall be the duty of the director of the department of 15 water resources to investigate the same and to conduct a hearing thereon. He 16 shall also advise the watermaster of the district in which such water is used 17 of the proposed change and the watermaster shall notify the director of the 18 department of water resources of his recommendation on the application, and 19 the director of the department of water resources shall not finally determine 20 the action on the application for change until he has received from such 21 watermaster his recommendation thereof, which action of the watermaster shall 22 be received and considered as other evidence. 23 When the nature of use of the water right is to be changed to municipal 24 purposes and some or all of the right will be held by a municipal provider to 25 serve reasonably anticipated future needs, the municipal provider shall pro- 26 vide to the department sufficient information and documentation to establish 27 that the applicant qualifies as a municipal provider and that the reasonably 28 anticipated future needs, the service area and the planning horizon are con- 29 sistent with the definitions and requirements specified in this chapter. The 30 service area need not be described by legal description nor by description of 31 every intended use in detail, but the area must be described with sufficient 32 information to identify the general location where the water under the water 33 right is to be used and the types and quantity of uses that generally will be 34 made. 35 When a water right or a portion thereof to be changed is held by a munici- 36 pal provider for municipal purposes, as defined in section 42-202B, Idaho 37 Code, that portion of the right held for reasonably anticipated future needs 38 at the time of the change shall not be changed to a place of use outside the 39 service area, as defined in section 42-202B, Idaho Code, or to a new nature of 40 use. 41 The director of the department of water resources shall examine all the 42 evidence and available information and shall approve the change in whole, or 43 in part, or upon conditions, provided no other water rights are injured 44 thereby, the change does not constitute an enlargement in use of the original 45 right, the change is consistent with the conservation of water resources 46 within the state of Idaho and is in the local public interest as defined in 47 section 42-203A(5), Idaho Code, and the new use is a beneficial use, which in 48 the case of a municipal provider shall be satisfied if the water right is nec- 49 essary to serve reasonably anticipated future needs as provided in this chap- 50 ter. The director may consider consumptive use, as defined in section 42-202B, 51 Idaho Code, as a factor in determining whether a proposed change would consti- 52 tute an enlargement in use of the original water right. The director shall not 53 approve a change in the nature of use from agricultural use where such change 54 would significantly affect the agricultural base of the local area. The trans- 55 fer of the right to the use of stored water for irrigation purposes shall not 4 1 constitute an enlargement in use of the original right even though more acres 2 may be irrigated, if no other water rights are injured thereby. A copy of the 3 approved application for change shall be returned to the applicant and he 4 shall be authorized upon receipt thereof to make the change and the original 5 water right shall be presumed to have been amended by reason of such autho- 6 rized change. In the event the director of the department of water resources 7 determines that a proposed change shall not be approved as provided in this 8 section, he shall deny the same and forward notice of such action to the 9 applicant by certified mail, which decision shall be subject to judicial 10 review as hereafter provided. 11 (2) All rights to the use of water acquired under this chapter or other- 12 wise shall be lost and forfeited by a failure for the term of five (5) years 13 to apply it to the beneficial use for which it was appropriated and when any 14 right to the use of water shall be lost through nonuse or forfeiture such 15 rights to such water shall revert to the state and be again subject to appro- 16 priation under this chapter; except that all water rights appurtenant to land 17 contracted in a federal cropland set-aside program, shall not be lost and for- 18 feited for nonuse during the contracted period. The five (5) year period of 19 nonuse for forfeiture of a water right shall begin to accrue upon termination 20 of the contract if a period of nonuse did not occur prior to the effective 21 date of the contract or shall continue to accrue if a period of nonuse 22 occurred prior to the effective date of the contract. A water right held by a 23 municipal provider to meet reasonably anticipated future needs shall be deemed 24 to constitute a beneficial use, and such rights shall not be lost or forfeited 25 for nonuse unless the planning horizon specified in the license has expired 26 and the quantity of water authorized for use under the license is no longer 27 needed to meet reasonably anticipated future needs. A water right shall not be 28 forfeited by a failure to divert and apply the water to beneficial use if the 29 water is not needed to maintain full beneficial use under the right because of 30 land application of waste for disposal purposes including, but not limited to, 31 discharge from dairy lagoons, used in combination with or substituted for 32 water diverted under the water right. Upon proper showing before the director 33 of the department of water resources of good and sufficient reason for non- 34 application to beneficial use of such water for such term of five (5) years, 35 the director of the department of water resources is hereby authorized to 36 grant an extension of time extending the time for forfeiture of title for 37 nonuse thereof, to such waters for a period of not to exceed five (5) addi- 38 tional years. Application for an extension shall be made before the end of the 39 five (5) year period upon forms to be furnished by the department of water 40 resources and shall fully describe the right on which an extension of time to 41 resume the use is requested and the reasons for such nonuse and shall be 42 accompanied by the statutory filing fee; provided that water rights appurte- 43 nant to land contracted in a federal cropland set-aside program, or covered by 44 the waste provision of this section, are exempt from this requirement. Upon 45 the receipt of such application it shall be the duty of the director of the 46 department of water resources to examine the same and to provide notice of the 47 application for an extension in the same manner as applications under section 48 42-203A, Idaho Code. The notice shall fully describe the right, the extension 49 which is requested and the reason for such nonuse and shall state that any 50 person desiring to object to the requested extension may submit a protest, 51 accompanied by the statutory filing fee as provided in section 42-221, Idaho 52 Code, to the director of the department of water resources within ten (10) 53 days of the last date of publication. Upon receipt of a protest it shall be 54 the duty of the director of the department of water resources to investigate 55 and conduct a hearing thereon as in this chapter provided. The director of the 5 1 department of water resources shall find from the evidence presented in any 2 hearing, or from information available to the department, the reasons for such 3 nonuse of water and where it appears to the satisfaction of the director of 4 the department of water resources that other rights will not be impaired by 5 granting an extension of time within which to resume the use of the water and 6 good cause appearing for such nonuse, he may grant one (1) extension of five 7 (5) years within which to resume such use. In his approval of the application 8 for an extension of time under this section the director of the department of 9 water resources shall set the date when the use of water is to be resumed. 10 Sixty (60) days before such date the director of the department of water 11 resources shall forward to the applicant at his address of record a notice by 12 certified mail setting forth the date on which the use of water is to be 13 resumed and a form for reporting the resumption of the use of the water right. 14 If the use of the water has not been resumed and report thereon made on or 15 before the date set for resumption of use such right shall revert to the state 16 and again be subject to appropriation, as provided in this section. In the 17 event the director of the department of water resources determines that a pro- 18 posed extension of time within which to resume use of a water right shall not 19 be approved as provided in this section, he shall deny same and forward notice 20 of such action to the applicant by certified mail, which decision shall be 21 subject to judicial review as hereafter provided. 22 (3) Any person or persons feeling themselves aggrieved by the determina- 23 tion of the department of water resources in approving or rejecting an appli- 24 cation to change the point of diversion, place, period of use or nature of use 25 of water under an established right or an application for an extension of time 26 within which to resume the use of water as provided in this section, may, if a 27 protest was filed and a hearing held thereon, seek judicial review pursuant to 28 section 42-1701A(4), Idaho Code. If no protest was filed and no hearing held, 29 the applicant may request a hearing pursuant to section 42-1701A(3), Idaho 30 Code, for the purpose of contesting the action of the director and may seek 31 judicial review of the final order of the director following the hearing pur- 32 suant to section 42-1701A(4), Idaho Code. 33 (4) The director may impose appropriate sanctions upon any party for fil- 34 ing a pleading with the department that is not reasonably grounded in fact or 35 law, or that is prosecuted or used in an improper manner so as to cause unnec- 36 essary delay, increased costs, or harassment. Appropriate sanctions may 37 include payment of the reasonable costs and expenses thereby incurred by the 38 other party or parties to the proceeding. The authority to impose sanctions 39 shall be exercised in the sound discretion of the director and shall not be 40 delegated by the director. Any party may seek judicial review of a final order 41 imposing sanctions in accordance with section 42-1701A(4), Idaho Code.
STATEMENT OF PURPOSE RS 09838 This legislation would add language to 42-222 to allow the director, Idaho Department of Water Resources, to provide sanctions against frivolous water right protests. The legislation allows for recovery of costs for those involved with the protest. FISCAL IMPACT No impact to the state general fund. It could reduce the number of frivolous water right protests and could save Idaho Department of Water Resources time and manpower. Contact Name: Representative Cuddy and Representative Moyle Lynn Tominaga, Idaho Water Users Association Phone: (208) 344-6690 STATEMENT OF PURPOSE/FISCAL NOTE H 546