2000 Legislation
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SENATE BILL NO. 1489 – Water rights/change request/denial

SENATE BILL NO. 1489

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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

Bill Text


 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 / Fiscal Impact


     
                           
                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