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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 - 2000IN 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 thatall water rights appurtenant to land53contracted in a federal cropland set-aside program, shall not be lost and for-54feited for nonuse during the contracted period. The five (5) year period of55nonuse for forfeiture of a water right shall begin to accrue upon termination3 1of the contract if a period of nonuse did not occur prior to the effective2date of the contract or shall continue to accrue if a period of nonuse3occurred prior to the effective date of the contract. A water right held by a4municipal provider to meet reasonably anticipated future needs shall be deemed5to constitute a beneficial use, and such rights shall not be lost or forfeited6for nonuse unless the planning horizon specified in the license has expired7and the quantity of water authorized for use under the license is no longer8needed to meet reasonably anticipated future needs. A water right shall not be9forfeited by a failure to divert and apply the water to beneficial use if the10water is not needed to maintain full beneficial use under the right because of11land application of waste for disposal purposes including, but not limited to12discharge from dairy lagoons, used in combination with or substituted for13water diverted under the water rightany 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 rightsappurte-27nant to land contracted in a federal cropland set-aside program, or covered by28the waste provision of thisprotected 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 eventthean 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 eventthean 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