Print Friendly 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
|||| 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
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.
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-
1 tificate may be recorded in the records of the county wherein the land is sit-
STATEMENT OF PURPOSE
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.
Name: Norman Semanko, Idaho Water Users Association
Phone: (208) 344-6690
STATEMENT OF PURPOSE/FISCAL NOTE H 22