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H0569.........................................by RESOURCES AND CONSERVATION
WATER RIGHTS - Amends existing law to provide additional conditions and
defenses governing forfeiture of water rights for nonuse.
02/06 House intro - 1st rdg - to printing
02/07 Rpt prt - to Res/Con
02/20 Rpt out - rec d/p - to 2nd rdg
02/21 2nd rdg - to 3rd rdg
02/26 3rd rdg - PASSED - 68-0-2
AYES -- Aikele, Barraclough, Barrett, Bedke, Bell, Bieter, Black,
Block, Boe, Bolz, Bradford, Bruneel, Callister, Campbell, Clark,
Collins, Crow, Cuddy, Deal, Denney, Ellis, Ellsworth, Eskridge,
Field(13), Field(20), Gagner, Gould, Hadley, Hammond, Harwood,
Henbest, Higgins, Hornbeck, Jaquet, Jones, Kellogg(Duncan), Kendell,
Kunz, Lake, Langford, Loertscher, Mader, Martinez, McKague, Meyer,
Montgomery, Mortensen, Moyle, Pearce, Pischner, Pomeroy, Raybould,
Ridinger, Roberts, Sali, Schaefer, Sellman, Shepherd, Smith(33),
Smith(23), Smylie, Stevenson, Stone, Tilman, Trail, Wheeler, Wood,
Young
NAYS -- None
Absent and excused -- Robison, Mr. Speaker
Floor Sponsor - Kendell
Title apvd - to Senate
02/27 Senate intro - 1st rdg - to Res/Env
03/05 Rpt out - rec d/p - to 2nd rdg
03/06 2nd rdg - to 3rd rdg
03/13 3rd rdg - PASSED - 33-0-2
AYES -- Andreason, Boatright, Branch(Bartlett), Brandt, Bunderson,
Burtenshaw, Darrington, Davis, Deide, Dunklin, Frasure, Geddes,
Goedde, Hawkins, Hill, Ingram, Keough, King-Barrutia, Little, Lodge,
Marley, Noh, Richardson, Risch, Sandy, Schroeder, Sims, Sorensen,
Stegner, Stennett, Thorne, Wheeler, Williams
NAYS -- None
Absent and excused -- Cameron, Ipsen
Floor Sponsor - Noh
Title apvd - to House
03/14 To enrol
03/15 Rpt enrol - Sp signed
Pres signed
03/15 To Governor
03/27 Governor signed
Session Law Chapter 343
Effective: 07/01/02
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature Second Regular Session - 2002
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 569
BY RESOURCES AND CONSERVATION COMMITTEE
1 AN ACT
2 RELATING TO WATER RIGHTS; AMENDING SECTION 42-223, IDAHO CODE, TO PROVIDE
3 ADDITIONAL CONDITIONS AND DEFENSES GOVERNING FORFEITURE OF WATER RIGHTS
4 FOR NONUSE.
5 Be It Enacted by the Legislature of the State of Idaho:
6 SECTION 1. That Section 42-223, Idaho Code, be, and the same is hereby
7 amended to read as follows:
8 42-223. EXCEPTIONS OR DEFENSES TO FORFEITURE. A right to the use of water
9 shall not be lost by forfeiture pursuant to the provisions of section 42-222,
10 Idaho Code, for a failure to apply the water to beneficial use under the con-
11 ditions specified in any subsection of this section. The legislature does not
12 intend through enactment of this section to preclude judicial or administra-
13 tive recognition of other exceptions or defenses to forfeiture recognized in
14 Idaho case law or other provisions of the Idaho Code.
15 (1) A water right appurtenant to land contracted in a federal cropland
16 set-aside program shall not be lost or forfeited for nonuse during the con-
17 tracted period. The running of any five (5) year period of nonuse for forfei-
18 ture of a water right shall be tolled during the time that the land remains in
19 the cropland set-aside program.
20 (2) A water right held by a municipal provider to meet reasonably antici-
21 pated future needs shall be deemed to constitute beneficial use, and such
22 rights shall not be lost or forfeited for nonuse unless the planning horizon
23 specified in the license has expired and the quantity of water authorized for
24 use under the license is no longer needed to meet reasonably anticipated
25 future needs.
26 (3) A water right shall not be lost or forfeited by a failure to divert
27 and apply the water to beneficial use if the water is not needed to maintain
28 full beneficial use under the right because of land application of waste for
29 disposal purposes including, but not limited to, discharge from dairy lagoons
30 used in combination with or substituted for water diverted under the water
31 right.
32 (4) A water right shall not be lost or forfeited by a failure to divert
33 and apply the water to beneficial use if the reason for the nonuse of the
34 water is to comply with the provisions of a ground water management plan
35 approved by the director of the department of water resources pursuant to sec-
36 tion 42-233a or 42-233b, Idaho Code.
37 (5) A water right shall not be lost or forfeited by a failure of the
38 owner of the right to divert and apply the water to beneficial use while the
39 water right is placed in the water supply bank or is retained in or rented
40 from the water supply bank pursuant to sections 42-1761 through 42-1765A,
41 Idaho Code, or while the water right is leased pursuant to sections 43-335
42 through 43-342, Idaho Code, or sections 42-2501 through 42-2509, Idaho Code,
43 or while use of the water is made under any other provision of law authorizing
2
1 the rental or lease of water rights.
2 (6) No portion of any water right shall be lost or forfeited for nonuse
3 if the nonuse results from circumstances over which the water right owner has
4 no control. Whether the water right owner has control over nonuse of water
5 shall be determined on a case-by-case basis.
6 (7) No portion of a water right held by an irrigation district, a Carey
7 Act operating company, or any other company, corporation, association, or
8 entity which holds water rights for distribution to its landowners, share-
9 holders or members shall be lost or forfeited due to nonuse by such landown-
10 ers, shareholders or members, unless the nonuse is subject to the control of
11 such entity.
12 (8) No portion of a water right held by an irrigation district shall be
13 lost, forfeited or subject to forfeiture as a result of the exclusion of land
14 from the district pursuant to chapter 11, title 43, Idaho Code, so long as any
15 five (5) year period of nonuse following the exclusion does not result from
16 circumstances over which the district has control.
STATEMENT OF PURPOSE
RS 11838C2
This legislation would provide additional conditions and defenses
governing forfeiture of water rights for nonuse. The defenses to
forfeiture would include the rental or leasing of water rights
under existing laws. Nonuse of water rights due to circumstances
over which the water right owner has no control would also
constitute a defense to forfeiture, consistent with existing
Idaho Supreme Court holdings.
FISCAL IMPACT
None.
Contact
Name: Norm Semanko, Idaho Water Users Association
Phone: (208) 344-6690
STATEMENT OF PURPOSE/FISCAL NOTE H 569