View Daily Data Tracking History
View Bill Text
View Statement of Purpose / Fiscal Impact
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
H0546
|||| 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 regulation rule.
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 regulations rules 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