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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
|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-sixth Legislature First Regular Session - 2001IN 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 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