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S1425..........................................by RESOURCES AND ENVIRONMENT
WATER RIGHTS - DESCRIPTION - Amends existing law relating to water right
descriptions to define "digital boundary"; and to provide that certain land
descriptions in licenses for the use of water for irrigation may be
described using digital boundaries.
02/11 Senate intro - 1st rdg - to printing
02/12 Rpt prt - to Res/Env
03/11 Rpt out - rec d/p - to 2nd rdg
03/12 2nd rdg - to 3rd rdg
Rls susp - PASSED - 30-2-3
AYES -- Andreason, Boatright, Bunderson, Burtenshaw, Cameron,
Darrington, Davis, Deide, Dunklin, Frasure, Goedde, Hawkins, Hill,
Ingram, Keough, Little, Lodge, Marley, Noh, Richardson, Risch, Sandy,
Schroeder, Sims, Sorensen, Stegner, Stennett, Thorne, Wheeler,
Williams
NAYS -- Branch(Bartlett), Brandt
Absent and excused -- Geddes, Ipsen, King-Barrutia
Floor Sponsor - Noh
Title apvd - to House
03/13 House intro - 1st rdg - to Res/Con
03/15 Rpt out - rec d/p - to 2nd rdg
Rls susp - PASSED - 66-2-2
AYES -- 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, Henbest, Higgins,
Hornbeck, Jaquet, Jones, Kellogg, Kendell, Kunz, Lake, Langford,
Mader, Martinez, McKague, Meyer, Montgomery, Mortensen, Moyle,
Pearce, Pischner, Pomeroy, Raybould, Ridinger, Roberts, Robison,
Sali, Schaefer, Sellman, Shepherd, Smith(33), Smith(23), Smylie,
Stevenson, Stone, Tilman, Trail, Wheeler, Young, Mr. Speaker
NAYS -- Harwood, Wood
Absent and excused -- Aikele, Loertscher
Floor Sponsor - Raybould
Title apvd - to Senate
03/15 To enrol
Rpt enrol - Pres signed - Sp signed
03/18 To Governor
03/26 Governor signed
Session Law Chapter 306
Effective: 07/01/02
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature Second Regular Session - 2002
IN THE SENATE
SENATE BILL NO. 1425
BY RESOURCES AND ENVIRONMENT COMMITTEE
1 AN ACT
2 RELATING TO WATER RIGHT DESCRIPTIONS; AMENDING SECTION 42-202B, IDAHO CODE, TO
3 DEFINE "DIGITAL BOUNDARY"; AMENDING SECTION 42-219, IDAHO CODE, TO PROVIDE
4 THAT CERTAIN LAND DESCRIPTIONS IN LICENSES FOR THE USE OF WATER FOR IRRI-
5 GATION MAY BE DESCRIBED USING DIGITAL BOUNDARIES; AND AMENDING SECTION
6 42-1411, IDAHO CODE, TO PROVIDE THAT CERTAIN LAND DESCRIPTIONS SETTING
7 FORTH THE PLACE OF USE OF WATER MAY BE DESCRIBED USING DIGITAL BOUNDARIES.
8 Be It Enacted by the Legislature of the State of Idaho:
9 SECTION 1. That Section 42-202B, Idaho Code, be, and the same is hereby
10 amended to read as follows:
11 42-202B. DEFINITIONS. Whenever used in this chapter, the term:
12 (1) "Consumptive use" means that portion of the annual volume of water
13 diverted under a water right that is transpired by growing vegetation, evapo-
14 rated from soils, converted to nonrecoverable water vapor, incorporated into
15 products, or otherwise does not return to the waters of the state. Consumptive
16 use does not include any water that falls as precipitation directly on the
17 place of use unless the precipitation is captured, controlled and used under
18 an appurtenant water right.
19 (2) "Digital boundary" means the boundary encompassing and defining an
20 area consisting of or incorporating the place of use or permissible place of
21 use for a water right prepared and maintained by the department of water
22 resources using a geographic information system in conformance with the
23 national standard for spatial data accuracy or succeeding standard.
24 (3) "Municipality" means a city incorporated under section 50-102, Idaho
25 Code, a county, or the state of Idaho acting through a department or institu-
26 tion.
27 (34) "Municipal provider" means:
28 (a) A municipality that provides water for municipal purposes to its res-
29 idents and other users within its service area;
30 (b) Any corporation or association holding a franchise to supply water
31 for municipal purposes, or a political subdivision of the state of Idaho
32 authorized to supply water for municipal purposes, and which does supply
33 water, for municipal purposes to users within its service area; or
34 (c) A corporation or association which supplies water for municipal pur-
35 poses through a water system regulated by the state of Idaho as a "public
36 water supply" as described in section 39-103(10), Idaho Code.
37 (45) "Municipal purposes" refers to water for residential, commercial,
38 industrial, irrigation of parks and open space, and related purposes, exclud-
39 ing use of water from geothermal sources for heating, which a municipal pro-
40 vider is entitled or obligated to supply to all those users within a service
41 area, including those located outside the boundaries of a municipality served
42 by a municipal provider.
43 (56) "Planning horizon" refers to the length of time that the department
2
1 determines is reasonable for a municipal provider to hold water rights to meet
2 reasonably anticipated future needs. The length of the planning horizon may
3 vary according to the needs of the particular municipal provider.
4 (67) "Reasonably anticipated future needs" refers to future uses of water
5 by a municipal provider for municipal purposes within a service area which, on
6 the basis of population and other planning data, are reasonably expected to be
7 required within the planning horizon of each municipality within the service
8 area not inconsistent with comprehensive land use plans approved by each
9 municipality. Reasonably anticipated future needs shall not include uses of
10 water within areas overlapped by conflicting comprehensive land use plans.
11 (78) "Service area" means that area within which a municipal provider is
12 or becomes entitled or obligated to provide water for municipal purposes. For
13 a municipality, the service area shall correspond to its corporate limits, or
14 other recognized boundaries, including changes therein after the permit or
15 license is issued. The service area for a municipality may also include areas
16 outside its corporate limits, or other recognized boundaries, that are within
17 the municipality's established planning area if the constructed delivery sys-
18 tem for the area shares a common water distribution system with lands located
19 within the corporate limits. For a municipal provider that is not a municipal-
20 ity, the service area shall correspond to the area that it is authorized or
21 obligated to serve, including changes therein after the permit or license is
22 issued.
23 SECTION 2. That Section 42-219, Idaho Code, be, and the same is hereby
24 amended to read as follows:
25 42-219. ISSUANCE OF LICENSE -- PRIORITY. (1) Upon receipt by the depart-
26 ment of water resources of all the evidence in relation to such final proof,
27 it shall be the duty of the department to carefully examine the same, and if
28 the department is satisfied that the law has been fully complied with and that
29 the water is being used at the place claimed and for the purpose for which it
30 was originally intended, the department shall issue to such user or users a
31 license confirming such use. Such license shall be issued under the seal of
32 the office of the department of water resources, and shall state the name and
33 post-office address of such user, the purpose for which such water is used,
34 the quantity of water which may be used, which in no case shall be an amount
35 in excess of the amount that has been beneficially applied. A license may be
36 issued to a municipal provider for an amount up to the full capacity of the
37 system constructed or used in accordance with the original permit provided
38 that the director determines that the amount is reasonably necessary to pro-
39 vide for the existing uses and reasonably anticipated future needs within the
40 service area and otherwise satisfies the definitions and requirements speci-
41 fied in this chapter for such use. The director shall condition the license to
42 prohibit any transfer of the place of use outside the service area, as defined
43 in section 42-202B, Idaho Code, or to a new nature of use of amounts held for
44 reasonably anticipated future needs together with such other conditions as the
45 director may deem appropriate.
46 (2) If such use is for irrigation, such license shall give a description,
47 by legal subdivisions, of the land which is irrigated by such water, except
48 that the general description of a place of use described in accordance with
49 subsection (5) or (6) of this section may be described using a digital bound-
50 ary, as defined in section 42-202B, Idaho Code. If the use is for municipal
51 purposes, the license shall describe the service area and shall state the
52 planning horizon for that portion of the right, if any, to be used for reason-
53 ably anticipated future needs.
3
1 (3) Such license shall bear the date of the application for, and the num-
2 ber of, the permit under which the works from which such water is taken were
3 constructed; the capacity of such works; the date when proof of beneficial use
4 of such water was made, and also the date of the priority of the right con-
5 firmed by such license.
6 (4) The date of priority confirmed by the license shall be the date of
7 the application for the permit for the construction of the works from which
8 the water is taken, and to which the right relates, provided there has been no
9 loss of priority under the provisions of this chapter. Whenever proof of the
10 beneficial application of water shall be offered subsequent to the date stated
11 in the permit, or in any authorized extension thereof, when such beneficial
12 application shall be made, the proof shall be taken, if received by the
13 department within the sixty (60) days prescribed in the preceding section. If
14 the proof taken is satisfactory to the department of water resources, a
15 license shall be issued by the department the same as though proof had been
16 made before the date fixed for such beneficial application. The priority of
17 the right established by the proof shall not date back to the date of the
18 application for the permit to which the right would relate under the provi-
19 sions of this chapter, but shall bear a date which shall be subsequent to the
20 date of the application, a time equal to the difference between the date set
21 in the permit, or extension thereof, for such beneficial application of water
22 and the date of proof.
23 (5) For irrigation projects where the canals constructed cover an area of
24 twenty-five thousand (25,000) acres or more, or within irrigation districts
25 organized and existing as such under the laws of the state of Idaho, the
26 license issued shall be issued to the persons, association, company, corpora-
27 tion or irrigation district owning the project, and final proof may be made by
28 such owners for the benefit of the entire project. It shall not be necessary
29 to give a description of the land by legal subdivisions but a general descrip-
30 tion of the entire area under the canal system shall be sufficient. The water
31 diverted and the water right acquired thereby shall relate to the entire proj-
32 ect and the diversion of the water for the beneficial use under the project
33 shall be sufficient proof of beneficial use without regard as to whether each
34 and every acre under the project is irrigated or not.
35 (6) For an irrigation project developed under a permit held by an associ-
36 ation, company, corporation or the United States to divert and deliver or dis-
37 tribute surface water under any annual charge or rental for beneficial use by
38 more than five (5) water users in an area of less than twenty-five thousand
39 (25,000) acres, the license issued shall be issued to the permit holder. For
40 the place of use description in the license issued for the irrigation project,
41 it shall be sufficient to provide a general description of the area within
42 which the total number of acres developed under the permit are located and
43 within which the location of the licensed acreage can be moved provided there
44 is no injury to other water rights.
45 (7) Subject to other governing law, the location of the acreage irrigated
46 within a generally described place of use, as defined in accordance with sub-
47 sections (5) and (6) of this section and as filed with the department pursuant
48 to section 43-323, Idaho Code, may be changed without approval under the pro-
49 visions of section 42-222, Idaho Code. However, the change shall not result in
50 an increase in either the rate of flow diverted or in the total number of
51 acres irrigated under the water right and shall cause no injury to other water
52 rights. If the holder of any water right seeks to challenge such a change, the
53 challenge may only be brought as an action initiating a contested case before
54 the department, pursuant to the administrative procedure act, chapter 52,
55 title 67, Idaho Code. Nothing in this section shall be construed to grant,
4
1 deny or otherwise affect an irrigation district's authority to deliver water
2 to areas outside the boundaries of such district.
3 (8) In the event that the department shall find that the applicant has
4 not fully complied with the law and the conditions of permit, it may issue a
5 license for that portion of the use which is in accordance with the permit, or
6 may refuse issuance of a license and void the permit. Notice of such action
7 shall be forwarded to the permit holder by certified mail. The applicant may
8 contest such action by the department pursuant to section 42-1701A(3), Idaho
9 Code.
10 SECTION 3. That Section 42-1411, Idaho Code, be, and the same is hereby
11 amended to read as follows:
12 42-1411. REPORT OF THE DIRECTOR. (1) The director shall prepare a
13 director's report on the water system. The director may file the director's
14 report in parts as the director deems appropriate. The director may include
15 such explanatory material as he deems appropriate in the director's report.
16 Such explanatory material shall not impose any conditions or restrictions on
17 the rights reported and shall not be subject to objection. This explanatory
18 material shall not be used to support any notice of claim, objection to a
19 notice of claim, or response to an objection.
20 (2) The director shall determine the following elements, to the extent
21 the director deems appropriate and proper, to define and administer the water
22 rights acquired under state law:
23 (a) the name and address of the claimant;
24 (b) the source of water;
25 (c) the quantity of water used describing the rate of water diversion or,
26 in the case of an instream flow right, the rate of water flow in cubic
27 feet per second or annual volume of diversion of water for use or storage
28 in acre-feet per year as necessary for the proper administration of the
29 water right;
30 (d) the date of priority;
31 (e) the legal description of the point(s) of diversion; if the claim is
32 for an instream flow, then a legal description of the beginning and ending
33 points of the claimed instream flow;
34 (f) the purpose of use;
35 (g) the period of the year when water is used for such purposes;
36 (h) a legal description of the place of use; if one (1) of the purposes
37 of use is irrigation, then the number of irrigated acres within each forty
38 (40) acre subdivision, except as provided in that the place of use may be
39 described using a general description in the manner provided under section
40 42-219, Idaho Code, which may consist of a digital boundary as defined in
41 section 42-202B, Idaho Code, if the irrigation project would qualify to be
42 so described under section 42-219, Idaho Code;
43 (i) conditions on the exercise of any water right included in any decree,
44 license, or approved transfer application; and
45 (j) such remarks and other matters as are necessary for definition of the
46 right, for clarification of any element of a right, or for administration
47 of the right by the director.
48 (3) The director may include such general provisions in the director's
49 report, as the director deems appropriate and proper, to define and to admin-
50 ister all water rights.
51 (4) The director shall file the director's report with the district
52 court, and the director's report shall be a part of the record. Upon filing
53 with the court, the director's report, except for the explanatory material
5
1 referred to in subsection (1) of this section, shall constitute prima facie
2 evidence of the nature and extent of the water rights acquired under state
3 law. The unobjected to portions of the director's report shall be decreed as
4 reported.
5 (5) Each claimant of a water right acquired under state law has the ulti-
6 mate burden of persuasion for each element of a water right. Since the
7 director's report is prima facie evidence of the nature and extent of the
8 water rights acquired under state law, a claimant of a water right acquired
9 under state law has the burden of going forward with the evidence to establish
10 any element of a water right which is in addition to or inconsistent with the
11 description in a director's report. Any party filing an objection to any por-
12 tion of the director's report shall have the burden of going forward with the
13 evidence to rebut the director's report as to all issues raised by the objec-
14 tion. Any other party to the proceeding may submit evidence in opposition to
15 the objector's position and in support of the director's report. All such pro-
16 ceedings shall be governed by the Idaho rules of civil procedure and Idaho
17 rules of evidence.
18 (6) The director shall file an original of the director's report with the
19 district court. The director shall also distribute for display and review at
20 least one (1) copy of the director's report to the office of the clerk of the
21 district court for each county in which any part of the water system is
22 located. The director shall also serve on each claimant or the claimant's
23 attorney whose water right is listed in the director's report a notice of fil-
24 ing of the director's report. Notice shall be sent to the last known address
25 of the claimant or the claimant's attorney. The notice shall be prepared by
26 the director using plain and concise language and shall include:
27 (a) a statement that the director's report of the various water rights
28 acquired under state law has been filed with the district court, naming
29 the district court(s) to which the report was filed;
30 (b) a copy of that portion of the report setting forth the claimant's
31 water right;
32 (c) a statement that a complete copy of the director's report is avail-
33 able for inspection, listing the locations at which the director's report
34 is available, which shall include the office of the clerk of the district
35 court for each county in which any part of the water system is located,
36 the offices of the department, and any other locations the director may
37 designate;
38 (d) a statement that all or a portion of the director's report is avail-
39 able upon request at the offices of the department, subject to payment of
40 a reasonable fee to cover costs of reproduction and mailing;
41 (e) a statement that any claimant may file objections to any portion of
42 the director's report with the district court specified in the notice and
43 must mail a copy of the objection to the director, and to the claimant of
44 each claimed right objected to, if the objector is not also the claimant
45 of the right for which the objection is filed;
46 (f) the date prior to which all objections must be filed, which shall not
47 be less than sixty (60) days for any director's report containing five
48 hundred (500) claims or less, one hundred twenty (120) days for any
49 director's report containing more than five hundred (500) claims and not
50 more than five thousand (5,000) claims, and one hundred eighty (180) days
51 for any director's report containing more than five thousand (5,000)
52 claims; the above-stated periods of time shall commence on the date of
53 service by mail of the notice of filing;
54 (g) a statement that claimants may file responses with the court to
55 objections filed against their claims, and that a copy of any response
6
1 must be mailed to the director and to the objector;
2 (h) the date prior to which all responses to objections must be filed
3 with the court, which shall not be less than one hundred twenty (120) days
4 following receipt of a copy of the objection; and
5 (i) a statement that any part of the report to which no objections are
6 filed shall be decreed by the district court and the time and location set
7 for the hearing at which the unobjected parts of the report will be
8 decreed, which time shall not be less than sixty (60) days following the
9 expiration of the period for filing responses to objections.
10 (7) The director shall file an affidavit with the district court demon-
11 strating compliance with the notice requirements of subsection (6) of this
12 section.
STATEMENT OF PURPOSE
RS 11431C1
The proposed legislation would modify Section 42-219(2), Idaho
Code, Issuance of License, and Section 42-202B(8), Idaho Code,
Definitions, to clarify that the delivery system place of use for
certain water rights can be described with digital boundaries. The
term “digital boundary” is defined. In the past some boundaries
have been identified by metes and bounds or by Section, Township
and Range. Experience has shown that the use of maps depicting
digital boundaries enhances understanding of water users, and
reduces the potential for error, thus expediting the water right
process.
FISCAL IMPACT
This legislation may avoid hundreds of person-hours per year in
preparing metes and bounds descriptions and crosschecking
descriptions with maps.
CONTACT
Name: Karl Dreher
Agency: Water Resources, Dept. of
Phone: 327-7929
Statement of Purpose/Fiscal Impact S 1425