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S1489..........................................by RESOURCES AND ENVIRONMENT
WATER RIGHTS - Amends existing law to provide that following the denial of
a proposed change by the director of the Department of Water Resources or
the withdrawal of an application for change, the Department of Water
Resources shall not accept a further application from the applicant for
transfer; and to provide the department shall not accept a further
application from the applicant for substantially the same use of water at
substantially the same place of use for a period of five years following
the date of denial if the director denies a requested change based upon a
determination that the use of water for the proposed purpose would be
contrary to local public interest.
02/21 Senate intro - 1st rdg - to printing
02/22 Rpt prt - to Res/Env
02/29 Rpt out - rec d/p - to 2nd rdg
03/01 2nd rdg - to 3rd rdg
03/07 3rd rdg - PASSED - 30-1-4
AYES--Andreason, Boatright, Bunderson, Cameron, Danielson,
Darrington, Deide, Frasure, Geddes, Hawkins, Ingram, Ipsen, Keough,
King-Barrutia, Lee, McLaughlin, Noh, Parry, Richardson, Riggs, Risch,
Sandy, Schroeder, Sorensen, Stennett, Thorne, Walton, Wheeler,
Whitworth, Williams
NAYS--Burtenshaw
Absent and excused--Crow, Davis, Dunklin, Stegner
Floor Sponsor - Stennett
Title apvd - to House
03/08 House intro - 1st rdg - to Res/Con
S1489
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
IN THE SENATE
SENATE BILL NO. 1489
BY RESOURCES AND ENVIRONMENT COMMITTEE
1 AN ACT
2 RELATING TO WATER RIGHTS; AMENDING SECTION 42-222, IDAHO CODE, TO PROVIDE THAT
3 FOLLOWING THE DENIAL OF A PROPOSED CHANGE BY THE DIRECTOR OR THE WITH-
4 DRAWAL OF AN APPLICATION FOR CHANGE THE DEPARTMENT OF WATER RESOURCES
5 SHALL NOT ACCEPT A FURTHER APPLICATION FROM THE APPLICANT FOR TRANSFER, TO
6 PROVIDE THE DEPARTMENT SHALL NOT ACCEPT A FURTHER APPLICATION FROM THE
7 APPLICANT FOR SUBSTANTIALLY THE SAME USE OF WATER AT SUBSTANTIALLY THE
8 SAME PLACE OF USE FOR A PERIOD OF FIVE YEARS FOLLOWING THE DATE OF DENIAL
9 IF THE DIRECTOR DENIES A REQUESTED CHANGE BASED UPON A DETERMINATION THAT
10 THE USE OF WATER FOR THE PROPOSED PURPOSE WOULD BE CONTRARY TO THE LOCAL
11 PUBLIC INTEREST AND TO MAKE A TECHNICAL CORRECTION.
12 Be It Enacted by the Legislature of the State of Idaho:
13 SECTION 1. That Section 42-222, Idaho Code, be, and the same is hereby
14 amended to read as follows:
15 42-222. CHANGE IN POINT OF DIVERSION, PLACE OF USE, PERIOD OF USE, OR
16 NATURE OF USE OF WATER UNDER ESTABLISHED RIGHTS -- FORFEITURE AND EXTENSION --
17 APPEALS. (1) Any person, entitled to the use of water whether represented by
18 license issued by the department of water resources, by claims to water rights
19 by reason of diversion and application to a beneficial use as filed under the
20 provisions of this chapter, or by decree of the court, who shall desire to
21 change the point of diversion, place of use, period of use or nature of use of
22 all or part of the water, under the right shall first make application to the
23 department of water resources for approval of such change. Such application
24 shall be upon forms furnished by the department and shall describe the right
25 licensed, claimed or decreed which is to be changed and the changes which are
26 proposed, and shall be accompanied by the statutory filing fee as in this
27 chapter provided. Upon receipt of such application it shall be the duty of the
28 director of the department of water resources to examine same, obtain any con-
29 sent required in section 42-108, Idaho Code, and if otherwise proper to pro-
30 vide notice of the proposed change in the same manner as applications under
31 section 42-203A, Idaho Code. Such notice shall advise that anyone who desires
32 to protest the proposed change shall file notice of protests with the depart-
33 ment within ten (10) days of the last date of publication. Upon the receipt of
34 any protest, accompanied by the statutory filing fee as provided in section
35 42-221, Idaho Code, it shall be the duty of the director of the department of
36 water resources to investigate the same and to conduct a hearing thereon. He
37 shall also advise the watermaster of the district in which such water is used
38 of the proposed change and the watermaster shall notify the director of the
39 department of water resources of his recommendation on the application, and
40 the director of the department of water resources shall not finally determine
41 the action on the application for change until he has received from such
42 watermaster his recommendation thereof, which action of the watermaster shall
43 be received and considered as other evidence.
2
1 When the nature of use of the water right is to be changed to municipal
2 purposes and some or all of the right will be held by a municipal provider to
3 serve reasonably anticipated future needs, the municipal provider shall pro-
4 vide to the department sufficient information and documentation to establish
5 that the applicant qualifies as a municipal provider and that the reasonably
6 anticipated future needs, the service area and the planning horizon are con-
7 sistent with the definitions and requirements specified in this chapter. The
8 service area need not be described by legal description nor by description of
9 every intended use in detail, but the area must be described with sufficient
10 information to identify the general location where the water under the water
11 right is to be used and the types and quantity of uses that generally will be
12 made.
13 When a water right or a portion thereof to be changed is held by a munici-
14 pal provider for municipal purposes, as defined in section 42-202B, Idaho
15 Code, that portion of the right held for reasonably anticipated future needs
16 at the time of the change shall not be changed to a place of use outside the
17 service area, as defined in section 42-202B, Idaho Code, or to a new nature of
18 use.
19 The director of the department of water resources shall examine all the
20 evidence and available information and shall approve the change in whole, or
21 in part, or upon conditions, provided no other water rights are injured
22 thereby, the change does not constitute an enlargement in use of the original
23 right, the change is consistent with the conservation of water resources
24 within the state of Idaho and is in the local public interest as defined in
25 section 42-203A(5), Idaho Code, and the new use is a beneficial use, which in
26 the case of a municipal provider shall be satisfied if the water right is nec-
27 essary to serve reasonably anticipated future needs as provided in this chap-
28 ter. The director may consider consumptive use, as defined in section 42-202B,
29 Idaho Code, as a factor in determining whether a proposed change would consti-
30 tute an enlargement in use of the original water right. The director shall not
31 approve a change in the nature of use from agricultural use where such change
32 would significantly affect the agricultural base of the local area. The trans-
33 fer of the right to the use of stored water for irrigation purposes shall not
34 constitute an enlargement in use of the original right even though more acres
35 may be irrigated, if no other water rights are injured thereby. A copy of the
36 approved application for change shall be returned to the applicant and he
37 shall be authorized upon receipt thereof to make the change and the original
38 water right shall be presumed to have been amended by reason of such autho-
39 rized change. In the event the director of the department of water resources
40 determines that a proposed change shall not be approved as provided in this
41 section, he shall deny the same and forward notice of such action to the
42 applicant by certified mail, which decision shall be subject to judicial
43 review as hereafter provided. Following the denial of a proposed change by the
44 director, or following the withdrawal of an application for change by the
45 applicant after hearing, the department of water resources shall not accept
46 and process a further application from the applicant to transfer the same
47 right for substantially the same use at substantially the same place of use.
48 If the director denied the requested change based upon a determination that
49 the use of water for the proposed purpose would be contrary to the local pub-
50 lic interest as defined in section 42-203A, Idaho Code, the department shall
51 not accept and process any further application from the applicant for substan-
52 tially the same use of water at substantially the same place of use for a
53 period of five (5) years following the date of denial.
54 (2) All rights to the use of water acquired under this chapter or other-
55 wise shall be lost and forfeited by a failure for the term of five (5) years
3
1 to apply it to the beneficial use for which it was appropriated and when any
2 right to the use of water shall be lost through nonuse or forfeiture such
3 rights to such water shall revert to the state and be again subject to appro-
4 priation under this chapter; except that all water rights appurtenant to land
5 contracted in a federal cropland set-aside program, shall not be lost and for-
6 feited for nonuse during the contracted period. The five (5) year period of
7 nonuse for forfeiture of a water right shall begin to accrue upon termination
8 of the contract if a period of nonuse did not occur prior to the effective
9 date of the contract or shall continue to accrue if a period of nonuse
10 occurred prior to the effective date of the contract. A water right held by a
11 municipal provider to meet reasonably anticipated future needs shall be deemed
12 to constitute a beneficial use, and such rights shall not be lost or forfeited
13 for nonuse unless the planning horizon specified in the license has expired
14 and the quantity of water authorized for use under the license is no longer
15 needed to meet reasonably anticipated future needs. A water right shall not be
16 forfeited by a failure to divert and apply the water to beneficial use if the
17 water is not needed to maintain full beneficial use under the right because of
18 land application of waste for disposal purposes including, but not limited to,
19 discharge from dairy lagoons, used in combination with or substituted for
20 water diverted under the water right. Upon proper showing before the director
21 of the department of water resources of good and sufficient reason for non-
22 application to beneficial use of such water for such term of five (5) years,
23 the director of the department of water resources is hereby authorized to
24 grant an extension of time extending the time for forfeiture of title for
25 nonuse thereof, to such waters for a period of not to exceed five (5) addi-
26 tional years. Application for an extension shall be made before the end of the
27 five (5) year period upon forms to be furnished by the department of water
28 resources and shall fully describe the right on which an extension of time to
29 resume the use is requested and the reasons for such nonuse and shall be
30 accompanied by the statutory filing fee; provided that water rights appurte-
31 nant to land contracted in a federal cropland set-aside program, or covered by
32 the waste provision of this section, are exempt from this requirement. Upon
33 the receipt of such application it shall be the duty of the director of the
34 department of water resources to examine the same and to provide notice of the
35 application for an extension in the same manner as applications under section
36 42-203A, Idaho Code. The notice shall fully describe the right, the extension
37 which is requested and the reason for such nonuse and shall state that any
38 person desiring to object to the requested extension may submit a protest,
39 accompanied by the statutory filing fee as provided in section 42-221, Idaho
40 Code, to the director of the department of water resources within ten (10)
41 days of the last date of publication. Upon receipt of a protest it shall be
42 the duty of the director of the department of water resources to investigate
43 and conduct a hearing thereon as in this chapter provided. The director of the
44 department of water resources shall find from the evidence presented in any
45 hearing, or from information available to the department, the reasons for such
46 nonuse of water and where it appears to the satisfaction of the director of
47 the department of water resources that other rights will not be impaired by
48 granting an extension of time within which to resume the use of the water and
49 good cause appearing for such nonuse, he may grant one (1) extension of five
50 (5) years within which to resume such use. In his approval of the application
51 for an extension of time under this section the director of the department of
52 water resources shall set the date when the use of water is to be resumed.
53 Sixty (60) days before such date the director of the department of water
54 resources shall forward to the applicant at his address of record a notice by
55 certified mail setting forth the date on which the use of water is to be
4
1 resumed and a form for reporting the resumption of the use of the water right.
2 If the use of the water has not been resumed and report thereon made on or
3 before the date set for resumption of use such right shall revert to the state
4 and again be subject to appropriation, as provided in this section. In the
5 event the director of the department of water resources determines that a pro-
6 posed extension of time within which to resume use of a water right shall not
7 be approved as provided in this section, he shall deny same and forward notice
8 of such action to the applicant by certified mail, which decision shall be
9 subject to judicial review as hereafter provided.
10 (3) Any person or persons feeling themselves aggrieved by the determina-
11 tion of the department of water resources in approving or rejecting an appli-
12 cation to change the point of diversion, place, period of use or nature of use
13 of water under an established right or an application for an extension of time
14 within which to resume the use of water as provided in this section, may, if a
15 protest was filed and a hearing held thereon, seek judicial review pursuant to
16 section 42-1701A(4), Idaho Code. If no protest was filed and no hearing held,
17 the applicant may request a hearing pursuant to section 42-1701A(3), Idaho
18 Code, for the purpose of contesting the action of the director and may seek
19 judicial review of the final order of the director following the hearing pur-
20 suant to section 42-1701A(4), Idaho Code.
STATEMENT OF PURPOSE
RS1013OC1
This measure would amend Idaho Code regarding a change in point of diversion
for use of water. The measure will bar an applicant for a period of five (5) years
from resubmitting a water use application that is substantially the same use at
substantially the same place if the applicant is denied a change in point of
diversion or if the applicant withdraws the application prior to rendering a final
order.
FISCAL NOTE
There is no fiscal impact.
CONTACT: Senator Clint Stennett
332-1351
STATEMENT OF PURPOSE/ FISCAL NOTE S 1489