2001 Legislation
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HOUSE BILL NO. 220 – Water rights, forfeiture defense

HOUSE BILL NO. 220

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H0220.........................................by RESOURCES AND CONSERVATION
WATER RIGHTS - Amends existing law to provide additional exceptions or
defenses to forfeiture of water rights; and to provide that an exclusion of
land from an irrigation district does not subject the irrigation district's
water right to forfeiture.
                                                                        
02/14    House intro - 1st rdg - to printing
02/15    Rpt prt - to Res/Con

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  First Regular Session - 2001
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 220
                                                                        
                          BY RESOURCES AND CONSERVATION COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO WATER RIGHTS; AMENDING SECTION  42-223,  IDAHO  CODE,  TO  PROVIDE
  3        ADDITIONAL  EXCEPTIONS OR DEFENSES TO FORFEITURE OF WATER RIGHTS; AMENDING
  4        SECTION 43-1109, IDAHO CODE, TO PROVIDE THAT AN EXCLUSION OF LAND FROM  AN
  5        IRRIGATION DISTRICT DOES NOT SUBJECT THE IRRIGATION DISTRICT'S WATER RIGHT
  6        TO  FORFEITURE;  AND AMENDING SECTION 43-1119, IDAHO CODE, TO PROVIDE THAT
  7        AN EXCLUSION OF LAND FROM AN IRRIGATION DISTRICT DOES NOT RESULT IN A LOSS
  8        OR FORFEITURE TO THE IRRIGATION DISTRICT'S WATER RIGHT.
                                                                        
  9    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 10        SECTION 1.  That Section 42-223, Idaho Code, be, and the  same  is  hereby
 11    amended to read as follows:
                                                                        
 12        42-223.  EXCEPTIONS OR DEFENSES TO FORFEITURE. A right to the use of water
 13    shall  not be lost by forfeiture pursuant to the provisions of section 42-222,
 14    Idaho Code, for a failure to apply the water to beneficial use under the  con-
 15    ditions  specified in any subsection of this section. The legislature does not
 16    intend through enactment of this section to preclude judicial  or  administra-
 17    tive  recognition  of other exceptions or defenses to forfeiture recognized in
 18    Idaho case law or other provisions of the Idaho Code.
 19        (1)  A water right appurtenant to land contracted in  a  federal  cropland
 20    set-aside  program  shall  not be lost or forfeited for nonuse during the con-
 21    tracted period. The running of any five (5) year period of nonuse for  forfei-
 22    ture of a water right shall be tolled during the time that the land remains in
 23    the cropland set-aside program.
 24        (2)  A water right held by a municipal provider to meet reasonably antici-
 25    pated  future  needs  shall  be  deemed to constitute beneficial use, and such
 26    rights shall not be lost or forfeited for nonuse unless the  planning  horizon
 27    specified  in the license has expired and the quantity of water authorized for
 28    use under the license is no  longer  needed  to  meet  reasonably  anticipated
 29    future needs.
 30        (3)  A  water  right shall not be lost or forfeited by a failure to divert
 31    and apply the water to beneficial use if the water is not needed  to  maintain
 32    full  beneficial  use under the right because of land application of waste for
 33    disposal purposes including, but not limited to, discharge from dairy  lagoons
 34    used  in  combination  with  or substituted for water diverted under the water
 35    right.
 36        (4)  A water right shall not be lost or forfeited by a failure  to  divert
 37    and  apply  the  water  to  beneficial use if the reason for the nonuse of the
 38    water is to comply with the provisions  of  a  ground  water  management  plan
 39    approved by the director of the department of water resources pursuant to sec-
 40    tion 42-233a or 42-233b, Idaho Code.
 41        (5)  No  portion  of a water right held by an irrigation district shall be
 42    subject to forfeiture as a result of the exclusion of land from  the  district
 43    pursuant to chapter 11, title 43, Idaho Code.
                                                                        
                                           2
                                                                        
  1        (6)  No  portion  of any water right shall be lost or forfeited for nonuse
  2    if the nonuse results from circumstances over which the water right owner  has
  3    no control.
  4        (7)  No  portion  of a water right held by an irrigation district, a Carey
  5    Act operating company, or any  other  company,  corporation,  association,  or
  6    entity  which  holds  water  rights for distribution to its landowners, share-
  7    holders or members shall be lost or forfeited due to nonuse by  such  landown-
  8    ers, shareholders or members.
  9        (8)  A water right for which a notice of claim has been filed in a general
 10    adjudication  pursuant  to chapter 14, title 42, Idaho Code, shall not be sub-
 11    ject to loss or forfeiture for nonuse occurring during  the  pendency  of  the
 12    adjudication.  The running period of nonuse specified in the forfeiture provi-
 13    sions of section 42-222(2), Idaho  Code,  is  tolled  until  the  water  right
 14    described in the notice of claim has been included in a final decree in a gen-
 15    eral adjudication.
                                                                        
 16        SECTION  2.  That  Section 43-1109, Idaho Code, be, and the same is hereby
 17    amended to read as follows:
                                                                        
 18        43-1109.  EFFECT OF EXCLUSION. An exclusion of land  from  any  irrigation
 19    district  shall  not  impair its existence, nor its rights, including those in
 20    its water rights, property, or its obligations  and  shall  not  subject  such
 21    rights  to forfeiture. The land excluded from an irrigation district shall not
 22    thereafter be entitled to receive water from the  water  rights  or  from  the
 23    irrigation  works and system of the district and shall not thereafter be enti-
 24    tled to any of the benefits of the district and shall be deemed to have  fully
 25    relinquished  all  such  rights  and  benefits to the district, provided, that
 26    lands retained for drainage purposes shall be entitled to the benefits of  the
 27    drainage system of the district.
                                                                        
 28        SECTION  3.  That  Section 43-1119, Idaho Code, be, and the same is hereby
 29    amended to read as follows:
                                                                        
 30        43-1119.  EXCLUSION -- LOSS OF WATER RIGHTS -- OBLIGATIONS OUTSTANDING  --
 31    EFFECT  --  ENFORCEMENT  -- PAYMENT -- CERTIFICATE. (1) Land excluded from any
 32    irrigation district shall not thereafter be entitled to receive water from the
 33    water rights or from the irrigation works and  system  of  the  district  and,
 34    except as provided in subsection (b) of section 43-1102, Idaho Code, shall not
 35    thereafter be entitled to any of the benefits of the district. An exclusion of
 36    land  from any irrigation district shall not impair, nor result in the loss or
 37    forfeiture of, the water rights or irrigation works and system of the district
 38    nor its rights in or to its property or its obligations.
 39        (2)  Land excluded from a district shall be subject to assessment  and  be
 40    otherwise  chargeable  for  the  payment and discharge of all obligations out-
 41    standing at the time of the entry of the order  or  resolution  excluding  the
 42    land as fully as though the land had not been excluded.
 43        (3)  All  provisions which could be used to compel the payment by excluded
 44    land of its portion of the  outstanding  obligations  had  the  exclusion  not
 45    occurred,  may  be  used  to compel the payment on the part of the land of the
 46    portion of the outstanding obligations of the district for which it is liable.
 47        (4)  When any lot or parcel of land shall be excluded from  an  irrigation
 48    district  and there shall be paid to the district all of the debts and obliga-
 49    tions of the district assessable, chargeable or allocable to the lot or  tract
 50    excluded,  the  district may issue its certificate of full payment executed by
 51    the president and secretary of the district, and acknowledged so that the cer-
                                                                        
                                           3
                                                                        
  1    tificate may be recorded in the records of the county wherein the land is sit-
  2    uate.

Statement of Purpose / Fiscal Impact



	               STATEMENT OF PURPOSE
                           RS 11039

This legislation would codify or otherwise address recent 
decisions by the Idaho Supreme Court and the Snake River 
Basin Adjudication (SRBA) Court and provide further clarification 
regarding the available defenses to forfeiture or loss of a water 
right.  The legislation is necessary to make certain that the 
defenses to forfeiture apply in the same manner to both Canal 
companies and irrigation districts.  It is also necessary to 
ensure that tolling of the forfeiture statute during the pendency 
of the SRBA will apply to proceedings before the Idaho Department 
of Water Resources and not just in the SRBA.
	
               FISCAL IMPACT
None.


Contact
Name: Norman Semanko, Idaho Water Users Association
Phone: (208) 344-6690




STATEMENT OF PURPOSE/FISCAL NOTE	H 22