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S1447..........................................by RESOURCES AND ENVIRONMENT
WATER RIGHTS - Amends, repeals and adds to existing law to provide for
specific defenses to forfeiture of water rights; to provide that the
director of the Department of Water Resources may approve a ground water
management plan in areas designated as critical ground water areas; to
provide that the director of the Department of Water Resources may approve
a ground water management plan for areas designated as ground water
management areas; and to provide for managing the effects of ground water
withdrawals.
02/17 Senate intro - 1st rdg - to printing
02/18 Rpt prt - to Res/Env
03/02 Rpt out - rec d/p - to 2nd rdg
03/03 2nd rdg - to 3rd rdg
03/09 3rd rdg - PASSED - 31-0-4
AYES--Andreason, Boatright, Bunderson, Burtenshaw, Cameron, Crow,
Danielson, Darrington, Davis, Deide, Frasure, Geddes, Hawkins,
Ingram, Ipsen, Keough, Lee, Noh, Parry, Richardson, Riggs, Risch,
Sandy, Schroeder, Sorensen, Stegner, Stennett, Walton/Branch,
Wheeler, Whitworth, Williams
NAYS--None
Absent and excused--Dunklin, King-Barrutia, McLaughlin, Thorne
Floor Sponsor - Cameron
Title apvd - to House
03/10 House intro - 1st rdg - to Res/Con
03/14 Rpt out - rec d/p - to 2nd rdg
03/15 2nd rdg - to 3rd rdg
03/23 3rd rdg - PASSED - 58-0-12
AYES -- Barraclough, Barrett, Bell, Bieter, Boe, Bruneel, Callister,
Campbell, Chase, Cheirrett, Clark, Deal, Field(13), Field(20),
Gagner, Geddes, Hadley, Hammond, Hansen(23), Hansen(29), Hornbeck,
Jaquet, Jones, Judd, Kellogg, Kempton, Kendell, Kunz, Lake, Linford,
Loertscher, Mader, Marley, McKague, Meyer, Montgomery, Mortensen,
Moss, Pearce, Pischner, Pomeroy, Reynolds, Ridinger, Ringo, Robison,
Sali, Sellman, Shepherd, Smith, Smylie, Stevenson, Stoicheff, Stone,
Taylor, Tilman, Trail, Wheeler, Zimmermann
NAYS -- None
Absent and excused -- Alltus, Black, Crow, Cuddy, Denney, Ellsworth,
Gould, Henbest, Moyle, Schaefer, Wood, Mr Speaker
Floor Sponsor - Field(20)
Title apvd - to Senate
03/24 To enrol
03/27 Rpt enrol - Pres signed - Sp signed
03/28 To Governor
03/29 Governor signed
Session Law Chapter 85
Effective: 07/01/00
S1447
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
IN THE SENATE
SENATE BILL NO. 1447
BY RESOURCES AND ENVIRONMENT COMMITTEE
1 AN ACT
2 RELATING TO WATER MANAGEMENT; AMENDING SECTION 42-222, IDAHO CODE, TO PROVIDE
3 FOR SPECIFIC EXCEPTIONS TO FORFEITURE OF WATER RIGHTS; REPEALING SECTION
4 42-223, IDAHO CODE; AMENDING CHAPTER 2, TITLE 42, IDAHO CODE, BY THE ADDI-
5 TION OF A NEW SECTION 42-223, IDAHO CODE, TO PROVIDE EXCEPTIONS OR
6 DEFENSES TO FORFEITURE OF WATER RIGHTS; REPEALING SECTION 42-224, IDAHO
7 CODE; AMENDING SECTION 42-233a, IDAHO CODE, TO PROVIDE THAT THE DIRECTOR
8 OF THE DEPARTMENT OF WATER RESOURCES MAY APPROVE A GROUND WATER MANAGEMENT
9 PLAN IN AREAS DESIGNATED AS CRITICAL GROUND WATER AREAS AND TO MAKE TECH-
10 NICAL CORRECTIONS; AND AMENDING SECTION 42-233b, IDAHO CODE, TO PROVIDE
11 THAT THE DIRECTOR OF THE DEPARTMENT OF WATER RESOURCES MAY APPROVE A
12 GROUND WATER MANAGEMENT PLAN FOR AREAS DESIGNATED AS GROUND WATER MANAGE-
13 MENT AREAS AND TO PROVIDE FOR MANAGING THE EFFECTS OF GROUND WATER WITH-
14 DRAWALS.
15 Be It Enacted by the Legislature of the State of Idaho:
16 SECTION 1. That Section 42-222, Idaho Code, be, and the same is hereby
17 amended to read as follows:
18 42-222. CHANGE IN POINT OF DIVERSION, PLACE OF USE, PERIOD OF USE, OR
19 NATURE OF USE OF WATER UNDER ESTABLISHED RIGHTS -- FORFEITURE AND EXTENSION --
20 APPEALS. (1) Any person, entitled to the use of water whether represented by
21 license issued by the department of water resources, by claims to water rights
22 by reason of diversion and application to a beneficial use as filed under the
23 provisions of this chapter, or by decree of the court, who shall desire to
24 change the point of diversion, place of use, period of use or nature of use of
25 all or part of the water, under the right shall first make application to the
26 department of water resources for approval of such change. Such application
27 shall be upon forms furnished by the department and shall describe the right
28 licensed, claimed or decreed which is to be changed and the changes which are
29 proposed, and shall be accompanied by the statutory filing fee as in this
30 chapter provided. Upon receipt of such application it shall be the duty of the
31 director of the department of water resources to examine same, obtain any con-
32 sent required in section 42-108, Idaho Code, and if otherwise proper to pro-
33 vide notice of the proposed change in the same manner as applications under
34 section 42-203A, Idaho Code. Such notice shall advise that anyone who desires
35 to protest the proposed change shall file notice of protests with the depart-
36 ment within ten (10) days of the last date of publication. Upon the receipt of
37 any protest, accompanied by the statutory filing fee as provided in section
38 42-221, Idaho Code, it shall be the duty of the director of the department of
39 water resources to investigate the same and to conduct a hearing thereon. He
40 shall also advise the watermaster of the district in which such water is used
41 of the proposed change and the watermaster shall notify the director of the
42 department of water resources of his recommendation on the application, and
43 the director of the department of water resources shall not finally determine
2
1 the action on the application for change until he has received from such
2 watermaster his recommendation thereof, which action of the watermaster shall
3 be received and considered as other evidence.
4 When the nature of use of the water right is to be changed to municipal
5 purposes and some or all of the right will be held by a municipal provider to
6 serve reasonably anticipated future needs, the municipal provider shall pro-
7 vide to the department sufficient information and documentation to establish
8 that the applicant qualifies as a municipal provider and that the reasonably
9 anticipated future needs, the service area and the planning horizon are con-
10 sistent with the definitions and requirements specified in this chapter. The
11 service area need not be described by legal description nor by description of
12 every intended use in detail, but the area must be described with sufficient
13 information to identify the general location where the water under the water
14 right is to be used and the types and quantity of uses that generally will be
15 made.
16 When a water right or a portion thereof to be changed is held by a munici-
17 pal provider for municipal purposes, as defined in section 42-202B, Idaho
18 Code, that portion of the right held for reasonably anticipated future needs
19 at the time of the change shall not be changed to a place of use outside the
20 service area, as defined in section 42-202B, Idaho Code, or to a new nature of
21 use.
22 The director of the department of water resources shall examine all the
23 evidence and available information and shall approve the change in whole, or
24 in part, or upon conditions, provided no other water rights are injured
25 thereby, the change does not constitute an enlargement in use of the original
26 right, the change is consistent with the conservation of water resources
27 within the state of Idaho and is in the local public interest as defined in
28 section 42-203A(5), Idaho Code, and the new use is a beneficial use, which in
29 the case of a municipal provider shall be satisfied if the water right is nec-
30 essary to serve reasonably anticipated future needs as provided in this chap-
31 ter. The director may consider consumptive use, as defined in section 42-202B,
32 Idaho Code, as a factor in determining whether a proposed change would consti-
33 tute an enlargement in use of the original water right. The director shall not
34 approve a change in the nature of use from agricultural use where such change
35 would significantly affect the agricultural base of the local area. The trans-
36 fer of the right to the use of stored water for irrigation purposes shall not
37 constitute an enlargement in use of the original right even though more acres
38 may be irrigated, if no other water rights are injured thereby. A copy of the
39 approved application for change shall be returned to the applicant and he
40 shall be authorized upon receipt thereof to make the change and the original
41 water right shall be presumed to have been amended by reason of such autho-
42 rized change. In the event the director of the department of water resources
43 determines that a proposed change shall not be approved as provided in this
44 section, he shall deny the same and forward notice of such action to the
45 applicant by certified mail, which decision shall be subject to judicial
46 review as hereafter provided.
47 (2) All rights to the use of water acquired under this chapter or other-
48 wise shall be lost and forfeited by a failure for the term of five (5) years
49 to apply it to the beneficial use for which it was appropriated and when any
50 right to the use of water shall be lost through nonuse or forfeiture such
51 rights to such water shall revert to the state and be again subject to appro-
52 priation under this chapter; except that all water rights appurtenant to land
53 contracted in a federal cropland set-aside program, shall not be lost and for-
54 feited for nonuse during the contracted period. The five (5) year period of
55 nonuse for forfeiture of a water right shall begin to accrue upon termination
3
1 of the contract if a period of nonuse did not occur prior to the effective
2 date of the contract or shall continue to accrue if a period of nonuse
3 occurred prior to the effective date of the contract. A water right held by a
4 municipal provider to meet reasonably anticipated future needs shall be deemed
5 to constitute a beneficial use, and such rights shall not be lost or forfeited
6 for nonuse unless the planning horizon specified in the license has expired
7 and the quantity of water authorized for use under the license is no longer
8 needed to meet reasonably anticipated future needs. A water right shall not be
9 forfeited by a failure to divert and apply the water to beneficial use if the
10 water is not needed to maintain full beneficial use under the right because of
11 land application of waste for disposal purposes including, but not limited to
12 discharge from dairy lagoons, used in combination with or substituted for
13 water diverted under the water right any right to the use of water shall not
14 be lost through forfeiture by the failure to apply the water to beneficial use
15 under certain circumstances as specified in section 42-223, Idaho Code.
16 (3) Upon proper showing before the director of the department of water
17 resources of good and sufficient reason for nonapplication to beneficial use
18 of such water for such term of five (5) years, the director of the department
19 of water resources is hereby authorized to grant an extension of time extend-
20 ing the time for forfeiture of title for nonuse thereof, to such waters for a
21 period of not to exceed five (5) additional years.
22 (4) Application for an extension shall be made before the end of the five
23 (5) year period upon forms to be furnished by the department of water
24 resources and shall fully describe the right on which an extension of time to
25 resume the use is requested and the reasons for such nonuse and shall be
26 accompanied by the statutory filing fee; provided that water rights appurte-
27 nant to land contracted in a federal cropland set-aside program, or covered by
28 the waste provision of this protected from forfeiture under the provisions of
29 section 42-223, Idaho Code, are exempt from this requirement.
30 (a) Upon the receipt of such application it shall be the duty of the
31 director of the department of water resources to examine the same and to
32 provide notice of the application for an extension in the same manner as
33 applications under section 42-203A, Idaho Code. The notice shall fully
34 describe the right, the extension which is requested and the reason for
35 such nonuse and shall state that any person desiring to object to the
36 requested extension may submit a protest, accompanied by the statutory
37 filing fee as provided in section 42-221, Idaho Code, to the director of
38 the department of water resources within ten (10) days of the last date of
39 publication.
40 (b) Upon receipt of a protest it shall be the duty of the director of the
41 department of water resources to investigate and conduct a hearing thereon
42 as in this chapter provided.
43 (c) The director of the department of water resources shall find from the
44 evidence presented in any hearing, or from information available to the
45 department, the reasons for such nonuse of water and where it appears to
46 the satisfaction of the director of the department of water resources that
47 other rights will not be impaired by granting an extension of time within
48 which to resume the use of the water and good cause appearing for such
49 nonuse, he may grant one (1) extension of five (5) years within which to
50 resume such use.
51 (d) In his approval of the application for an extension of time under
52 this section the director of the department of water resources shall set
53 the date when the use of water is to be resumed. Sixty (60) days before
54 such date the director of the department of water resources shall forward
55 to the applicant at his address of record a notice by certified mail set-
4
1 ting forth the date on which the use of water is to be resumed and a form
2 for reporting the resumption of the use of the water right. If the use of
3 the water has not been resumed and report thereon made on or before the
4 date set for resumption of use such right shall revert to the state and
5 again be subject to appropriation, as provided in this section.
6 (e) In the event the director of the department of water resources deter-
7 mines that a proposed extension of time within which to resume use of a
8 water right shall not be approved as provided in this section, he shall
9 deny same and forward notice of such action to the applicant by certified
10 mail, which decision shall be subject to judicial review as hereafter pro-
11 vided.
12 (35) Any person or persons feeling themselves aggrieved by the determina-
13 tion of the department of water resources in approving or rejecting an appli-
14 cation to change the point of diversion, place, period of use or nature of use
15 of water under an established right or an application for an extension of time
16 within which to resume the use of water as provided in this section, may, if a
17 protest was filed and a hearing held thereon, seek judicial review pursuant to
18 section 42-1701A(4), Idaho Code. If no protest was filed and no hearing held,
19 the applicant may request a hearing pursuant to section 42-1701A(3), Idaho
20 Code, for the purpose of contesting the action of the director and may seek
21 judicial review of the final order of the director following the hearing pur-
22 suant to section 42-1701A(4), Idaho Code.
23 SECTION 2. That Section 42-223, Idaho Code, be, and the same is hereby
24 repealed.
25 SECTION 3. That Chapter 2, Title 42, Idaho Code, be, and the same is
26 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
27 ignated as Section 42-223, Idaho Code, and to read as follows:
28 42-223. EXCEPTIONS OR DEFENSES TO FORFEITURE. A right to the use of water
29 shall not be lost by forfeiture pursuant to the provisions of section 42-222,
30 Idaho Code, for a failure to apply the water to beneficial use under the con-
31 ditions specified in any subsection of this section. The legislature does not
32 intend through enactment of this section to preclude judicial or administra-
33 tive recognition of other exceptions or defenses to forfeiture recognized in
34 Idaho case law or other provisions of the Idaho Code.
35 (1) A water right appurtenant to land contracted in a federal cropland
36 set-aside program shall not be lost or forfeited for nonuse during the con-
37 tracted period. The running of any five (5) year period of nonuse for forfei-
38 ture of a water right shall be tolled during the time that the land remains in
39 the cropland set-aside program.
40 (2) A water right held by a municipal provider to meet reasonably antici-
41 pated future needs shall be deemed to constitute beneficial use, and such
42 rights shall not be lost or forfeited for nonuse unless the planning horizon
43 specified in the license has expired and the quantity of water authorized for
44 use under the license is no longer needed to meet reasonably anticipated
45 future needs.
46 (3) A water right shall not be lost or forfeited by a failure to divert
47 and apply the water to beneficial use if the water is not needed to maintain
48 full beneficial use under the right because of land application of waste for
49 disposal purposes including, but not limited to, discharge from dairy lagoons
50 used in combination with or substituted for water diverted under the water
51 right.
52 (4) A water right shall not be lost or forfeited by a failure to divert
5
1 and apply the water to beneficial use if the reason for the nonuse of the
2 water is to comply with the provisions of a ground water management plan
3 approved by the director of the department of water resources pursuant to sec-
4 tion 42-233a or 42-233b, Idaho Code.
5 SECTION 4. That Section 42-224, Idaho Code, be, and the same is hereby
6 repealed.
7 SECTION 5. That Section 42-233a, Idaho Code, be, and the same is hereby
8 amended to read as follows:
9 42-233a. "CRITICAL GROUND WATER AREA" DEFINED -- PUBLIC HEARINGS -- PUB-
10 LICATION OF NOTICE -- GRANTING OR DENIAL OF APPLICATION -- APPEAL. "Critical
11 ground water area" is defined as any ground water basin, or designated part
12 thereof, not having sufficient ground water to provide a reasonably safe sup-
13 ply for irrigation of cultivated lands, or other uses in the basin at the then
14 current rates of withdrawal, or rates of withdrawal projected by consideration
15 of valid and outstanding applications and permits, as may be determined and
16 designated, from time to time, by the director of the department of water
17 resources.
18 Upon the designation of a "critical ground water area" it shall be the
19 duty of the director of the department of water resources to conduct a public
20 hearing in the area concerned to apprise the public of such designation and
21 the reasons therefor. Notice of the hearing shall be published in two (2) con-
22 secutive weekly issues of a newspaper of general circulation in the area imme-
23 diately prior to the date set for hearing.
24 In the event an area has been designated as a "critical ground water area"
25 and the director of the department of water resources desires to remove such
26 designation or modify the boundaries thereof, he shall likewise conduct a pub-
27 lic hearing following similar publication of notice prior to taking such
28 action.
29 When a "critical ground water area" is designated by the director of the
30 department of water resources, or at any time thereafter during the existence
31 of the designation, the director may approve a ground water management plan
32 for the area. The ground water management plan shall provide for managing the
33 effects of ground water withdrawals on the aquifer from which withdrawals are
34 made and on any other hydraulically connected sources of water.
35 In the event the an application for permit is made with respect to an area
36 that has not been designated as a critical ground water area the director of
37 the department of water resources shall forthwith issue a permit in accordance
38 with the provisions of section 42-203A and section 42-204, Idaho Code, pro-
39 vided said application otherwise meets the requirements of such sections; and
40 further provided that if the applicant proposes to appropriate water from a
41 ground water basin or basins in an amount which exceeds ten thousand (10,000)
42 acre-feet per year either from a single or a combination of diversion points,
43 and the director determines that the withdrawal of such amount will substan-
44 tially and adversely affect existing pumping levels of appropriators pumping
45 from such basin or basins, or will substantially and adversely affect the
46 amount of water available for withdrawal from such basin or basins under
47 existing water rights, the director may require that the applicant undertake
48 such recharge of the ground water basin or basins as will offset that with-
49 drawal adversely affecting existing pumping levels or water rights.
50 In the event the an application for permit is made in an area which has
51 been designated as a critical ground water area, if the director of the
52 department of water resources from the investigation made by him on said
6
1 application as herein provided, or from the investigation made by him in
2 determining the area to be critical, or from other information that has come
3 officially to his attention, has reason to believe that there is insufficient
4 water available subject to appropriation at the location of the proposed well
5 described in the application, the director of the department of water
6 resources may forthwith deny said application; provided, however, that if
7 ground water at such location is available in a lesser amount than that
8 applied for the director of the department of water resources may issue a per-
9 mit for the use of such water to the extent that such water is available for
10 such appropriation.
11 The director may require all water right holders within a critical ground
12 water area to report withdrawals of ground water and other necessary informa-
13 tion for the purpose of assisting him in determining available ground water
14 supplies and their usage.
15 The director, upon determination that the ground water supply is insuffi-
16 cient to meet the demands of water rights within all or portions of a critical
17 ground water area, shall order those water right holders on a time priority
18 basis, within the area determined by the director, to cease or reduce with-
19 drawal of water until such time as the director determines there is sufficient
20 ground water. Such order shall be given only before September 1 and shall be
21 effective for the growing season during the year following the date the order
22 is given.
23 Any applicant dissatisfied with the decision of the director of the
24 department of water resources may appeal to the district court in the manner
25 provided for in section 42-237e, Idaho Code.
26 SECTION 6. That Section 42-233b, Idaho Code, be, and the same is hereby
27 amended to read as follows:
28 42-233b. GROUND WATER MANAGEMENT AREA. "Ground water management area" is
29 defined as any ground water basin or designated part thereof which the direc-
30 tor of the department of water resources has determined may be approaching the
31 conditions of a critical ground water area. Upon designation of a ground water
32 management area the director shall publish notice in two (2) consecutive
33 weekly issues of a newspaper of general circulation in the area.
34 When a ground water management area is designated by the director of the
35 department of water resources, or at any time thereafter during the existence
36 of the designation, the director may approve a ground water management plan
37 for the area. The ground water management plan shall provide for managing the
38 effects of ground water withdrawals on the aquifer from which withdrawals are
39 made and on any other hydraulically connected sources of water.
40 Applications for permits made within a ground water management area shall
41 be approved by the director only after he has determined on an individual
42 basis that sufficient water is available and that other prior water rights
43 will not be injured.
44 The director may require all water right holders within a designated water
45 management area to report withdrawals of ground water and other necessary
46 information for the purpose of assisting him in determining available ground
47 water supplies and their usage.
48 The director, upon determination that the ground water supply is insuffi-
49 cient to meet the demands of water rights within all or portions of a water
50 management area, shall order those water right holders on a time priority
51 basis, within the area determined by the director, to cease or reduce with-
52 drawal of water until such time as the director determines there is sufficient
53 ground water. Such order shall be given only before September 1 and shall be
7
1 effective for the growing season during the year following the date the order
2 is given.
STATEMENT OF PURPOSE
RS09387C2
This legislation adds, amends and repeals several code sections relating to water
management. The Director of the Department of Water Resources commonly
approves a ground water management plan for basins designated as a critical
ground water area or a ground water management area. The legislation adds a
description of ground water management plans to the provisions of I.C. 42-
233a and 42-233b.
A frequent element of a ground water management plan calls for a reduction in
ground water withdrawals. The legislation recognizes that a water right shall not
be lost or forfeited by a failure to divert and apply water to a beneficial use if the
reason for the non-use of the water is to comply with the provisions of a ground
water management plan approved by the Director. The legislation adds a new
Section 42-223 to codify in a separate statute the specific exceptions or defenses
to forfeiture of a water right previously listed in I.C. 42-222.
FISCAL IMPACT
No added impact on the State General Fund.
CONTACT
Name: Karl Dreher/Norm Young
Agency: Department of Water Resources
Phone: 327-7910
STATEMENT OF PURPOSE/FISCAL IMPACT S1447