2002 Legislation
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SENATE BILL NO. 1425 – Water/irrigation use/digital bndry


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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,
      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

Bill Text

  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  Second Regular Session - 2002
                                       IN THE SENATE
                                    SENATE BILL NO. 1425
  1                                        AN ACT
  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
  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.
  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,
  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
  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
  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 / Fiscal Impact

                        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 

                      FISCAL IMPACT

This legislation may avoid hundreds of person-hours per year in 
preparing metes and bounds descriptions and crosschecking 
descriptions with maps.

Name:	Karl Dreher
Agency:	Water Resources, Dept. of
Phone:	327-7929	

Statement of Purpose/Fiscal Impact                 S 1425