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S1427..........................................by RESOURCES AND ENVIRONMENT
WATER - APPROPRIATION - Amends existing law relating to the appropriation
of water to authorize the director of the Department of Water Resources to
impose sanctions for certain actions.
02/11 Senate intro - 1st rdg - to printing
02/12 Rpt prt - to Res/Env
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature Second Regular Session - 2002
IN THE SENATE
SENATE BILL NO. 1427
BY RESOURCES AND ENVIRONMENT COMMITTEE
1 AN ACT
2 RELATING TO THE APPROPRIATION OF WATER; AMENDING SECTION 42-203A, IDAHO CODE,
3 TO AUTHORIZE THE DIRECTOR OF THE DEPARTMENT OF WATER RESOURCES TO IMPOSE
4 SANCTIONS FOR CERTAIN ACTIONS AND TO MAKE TECHNICAL CORRECTIONS; AND
5 AMENDING SECTION 42-222, IDAHO CODE, TO AUTHORIZE THE DIRECTOR OF THE
6 DEPARTMENT OF WATER RESOURCES TO IMPOSE SANCTIONS FOR CERTAIN ACTIONS.
7 Be It Enacted by the Legislature of the State of Idaho:
8 SECTION 1. That Section 42-203A, Idaho Code, be, and the same is hereby
9 amended to read as follows:
10 42-203A. NOTICE UPON RECEIPT OF APPLICATION -- PROTEST -- HEARING AND
11 FINDINGS -- APPEALS. (1) Upon receipt of an application to appropriate the
12 waters of this state, the department of water resources, shall prepare a
13 notice in such form as the department may prescribe, specifying: (a) the num-
14 ber of the application; (b) the date of filing thereof; (c) the name and post-
15 office address of the applicant; (d) the source of the water supply; (e) the
16 amount of water to be appropriated; (f) in general the nature of the proposed
17 use; (g) the approximate location of the point of diversion; and (h) and the
18 point of use. The department shall also state in said notice that any protest
19 against the approval of such application, in form prescribed by the depart-
20 ment, shall be filed with the department within ten (10) days from the last
21 date of publication of such notice.
22 (2) The director of the department of water resources shall cause the
23 notice to be published in a newspaper printed within the county wherein the
24 point of diversion lies, or in the event no newspaper is printed in said
25 county, then in a newspaper of general circulation therein. When the applica-
26 tion proposes a diversion in excess of ten (10) c.f.s. or one thousand (1,000)
27 acre feet, the director shall cause the notice to be published in a newspaper
28 or newspapers sufficient to achieve statewide circulation. Any notice shall be
29 published at least once each week for two (2) successive weeks.
30 (3) The director of the department shall cause a copy of the notice of
31 application to be sent by ordinary mail to any person who requests in writing
32 to receive any class of notices of application and who pays an annual mailing
33 fee as established by departmental regulation rule.
34 (4) Any person, firm, association or corporation concerned in any such
35 application may, within the time allowed in the notice of application, file
36 with said director of the department of water resources a written protest,
37 together with the statutory filing fee as provided in section 42-221, Idaho
38 Code, against the approval of such application, which protest shall state the
39 name and address of protestant and shall be signed by him or by his agent or
40 attorney and shall clearly set forth his objections to the approval of such
41 application. Hearing upon the protest so filed shall be held within sixty (60)
42 days from the date such protest is received. Notice of this hearing shall be
43 given by mailing notice not less than ten (10) days before the date of hearing
2
1 and shall be forwarded to both the applicant and the protestant, or
2 protestants, by certified mail. Such notice shall state the names of the
3 applicant and protestant, or protestants, the time and place fixed for the
4 hearing and such other information as the director of the department of water
5 resources may deem advisable. In the event that no protest is filed, then the
6 director of the department of water resources may forthwith approve the appli-
7 cation, providing the same in all respects conforms with the requirements of
8 this chapter, and with the regulations rules of the department of water
9 resources.
10 (5) Such hearing shall be conducted in accordance with the provisions of
11 section 42-1701A(1) and (2), Idaho Code. The director of the department of
12 water resources shall find and determine from the evidence presented to what
13 use or uses the water sought to be appropriated can be and are intended to be
14 applied. In all applications whether protested or not protested, where the
15 proposed use is such (a) that it will reduce the quantity of water under
16 existing water rights, or (b) that the water supply itself is insufficient for
17 the purpose for which it is sought to be appropriated, or (c) where it appears
18 to the satisfaction of the director that such application is not made in good
19 faith, is made for delay or speculative purposes, or (d) that the applicant
20 has not sufficient financial resources with which to complete the work
21 involved therein, or (e) that it will conflict with the local public interest,
22 where the local public interest is defined as the affairs of the people in the
23 area directly affected by the proposed use, or (f) that it is contrary to con-
24 servation of water resources within the state of Idaho; the director of the
25 department of water resources may reject such application and refuse issuance
26 of a permit therefor, or may partially approve and grant a permit for a
27 smaller quantity of water than applied for, or may grant a permit upon condi-
28 tions. The provisions of this section shall apply to any boundary stream
29 between this and any other state in all cases where the water sought to be
30 appropriated has its source largely within the state, irrespective of the
31 location of any proposed power generating plant.
32 (6) Any person or corporation who has formally appeared at the hearing,
33 aggrieved by the judgment of the director of the department of water
34 resources, may seek judicial review thereof in accordance with section
35 42-1701A(4), Idaho Code.
36 (7) The director may impose appropriate sanctions upon any party for fil-
37 ing with the department a protest, petition, appeal, or any other document
38 pursuant to the provisions of this section, that is not reasonably grounded in
39 fact or law, or that is pursued, maintained, or used in an improper manner so
40 as to cause unnecessary delay, increased costs, or harassment. Appropriate
41 sanctions may include payment of the reasonable costs and expenses thereby
42 incurred by the other party or parties to the proceeding. The authority to
43 impose sanctions shall be exercised in the sound discretion of the director
44 and shall not be delegated by the director. Any party may seek judicial review
45 of a final order imposing sanctions in accordance with section 42-1701A(4),
46 Idaho Code.
47 SECTION 2. That Section 42-222, Idaho Code, be, and the same is hereby
48 amended to read as follows:
49 42-222. CHANGE IN POINT OF DIVERSION, PLACE OF USE, PERIOD OF USE, OR
50 NATURE OF USE OF WATER UNDER ESTABLISHED RIGHTS -- FORFEITURE AND EXTENSION --
51 APPEALS. (1) Any person, entitled to the use of water whether represented by
52 license issued by the department of water resources, by claims to water rights
53 by reason of diversion and application to a beneficial use as filed under the
3
1 provisions of this chapter, or by decree of the court, who shall desire to
2 change the point of diversion, place of use, period of use or nature of use of
3 all or part of the water, under the right shall first make application to the
4 department of water resources for approval of such change. Such application
5 shall be upon forms furnished by the department and shall describe the right
6 licensed, claimed or decreed which is to be changed and the changes which are
7 proposed, and shall be accompanied by the statutory filing fee as in this
8 chapter provided. Upon receipt of such application it shall be the duty of
9 the director of the department of water resources to examine same, obtain any
10 consent required in section 42-108, Idaho Code, and if otherwise proper to
11 provide notice of the proposed change in the same manner as applications under
12 section 42-203A, Idaho Code. Such notice shall advise that anyone who desires
13 to protest the proposed change shall file notice of protests with the depart-
14 ment within ten (10) days of the last date of publication. Upon the receipt of
15 any protest, accompanied by the statutory filing fee as provided in section
16 42-221, Idaho Code, it shall be the duty of the director of the department of
17 water resources to investigate the same and to conduct a hearing thereon. He
18 shall also advise the watermaster of the district in which such water is used
19 of the proposed change and the watermaster shall notify the director of the
20 department of water resources of his recommendation on the application, and
21 the director of the department of water resources shall not finally determine
22 the action on the application for change until he has received from such
23 watermaster his recommendation thereof, which action of the watermaster shall
24 be received and considered as other evidence.
25 When the nature of use of the water right is to be changed to municipal
26 purposes and some or all of the right will be held by a municipal provider to
27 serve reasonably anticipated future needs, the municipal provider shall pro-
28 vide to the department sufficient information and documentation to establish
29 that the applicant qualifies as a municipal provider and that the reasonably
30 anticipated future needs, the service area and the planning horizon are con-
31 sistent with the definitions and requirements specified in this chapter. The
32 service area need not be described by legal description nor by description of
33 every intended use in detail, but the area must be described with sufficient
34 information to identify the general location where the water under the water
35 right is to be used and the types and quantity of uses that generally will be
36 made.
37 When a water right or a portion thereof to be changed is held by a munici-
38 pal provider for municipal purposes, as defined in section 42-202B, Idaho
39 Code, that portion of the right held for reasonably anticipated future needs
40 at the time of the change shall not be changed to a place of use outside the
41 service area, as defined in section 42-202B, Idaho Code, or to a new nature of
42 use.
43 The director of the department of water resources shall examine all the
44 evidence and available information and shall approve the change in whole, or
45 in part, or upon conditions, provided no other water rights are injured
46 thereby, the change does not constitute an enlargement in use of the original
47 right, the change is consistent with the conservation of water resources
48 within the state of Idaho and is in the local public interest as defined in
49 section 42-203A(5), Idaho Code, and the new use is a beneficial use, which in
50 the case of a municipal provider shall be satisfied if the water right is nec-
51 essary to serve reasonably anticipated future needs as provided in this chap-
52 ter. The director may consider consumptive use, as defined in section 42-202B,
53 Idaho Code, as a factor in determining whether a proposed change would consti-
54 tute an enlargement in use of the original water right. The director shall not
55 approve a change in the nature of use from agricultural use where such change
4
1 would significantly affect the agricultural base of the local area. The trans-
2 fer of the right to the use of stored water for irrigation purposes shall not
3 constitute an enlargement in use of the original right even though more acres
4 may be irrigated, if no other water rights are injured thereby. A copy of the
5 approved application for change shall be returned to the applicant and he
6 shall be authorized upon receipt thereof to make the change and the original
7 water right shall be presumed to have been amended by reason of such autho-
8 rized change. In the event the director of the department of water resources
9 determines that a proposed change shall not be approved as provided in this
10 section, he shall deny the same and forward notice of such action to the
11 applicant by certified mail, which decision shall be subject to judicial
12 review as hereafter provided.
13 (2) All rights to the use of water acquired under this chapter or other-
14 wise shall be lost and forfeited by a failure for the term of five (5) years
15 to apply it to the beneficial use for which it was appropriated and when any
16 right to the use of water shall be lost through nonuse or forfeiture such
17 rights to such water shall revert to the state and be again subject to appro-
18 priation under this chapter; except that any right to the use of water shall
19 not be lost through forfeiture by the failure to apply the water to beneficial
20 use under certain circumstances as specified in section 42-223, Idaho Code.
21 (3) Upon proper showing before the director of the department of water
22 resources of good and sufficient reason for nonapplication to beneficial use
23 of such water for such term of five (5) years, the director of the department
24 of water resources is hereby authorized to grant an extension of time extend-
25 ing the time for forfeiture of title for nonuse thereof, to such waters for a
26 period of not to exceed five (5) additional years.
27 (4) Application for an extension shall be made before the end of the five
28 (5) year period upon forms to be furnished by the department of water
29 resources and shall fully describe the right on which an extension of time to
30 resume the use is requested and the reasons for such nonuse and shall be
31 accompanied by the statutory filing fee; provided that water rights protected
32 from forfeiture under the provisions of section 42-223, Idaho Code, are exempt
33 from this requirement.
34 (a) Upon the receipt of such application it shall be the duty of the
35 director of the department of water resources to examine the same and to
36 provide notice of the application for an extension in the same manner as
37 applications under section 42-203A, Idaho Code. The notice shall fully
38 describe the right, the extension which is requested and the reason for
39 such nonuse and shall state that any person desiring to object to the
40 requested extension may submit a protest, accompanied by the statutory
41 filing fee as provided in section 42-221, Idaho Code, to the director of
42 the department of water resources within ten (10) days of the last date of
43 publication.
44 (b) Upon receipt of a protest it shall be the duty of the director of the
45 department of water resources to investigate and conduct a hearing thereon
46 as in this chapter provided.
47 (c) The director of the department of water resources shall find from the
48 evidence presented in any hearing, or from information available to the
49 department, the reasons for such nonuse of water and where it appears to
50 the satisfaction of the director of the department of water resources that
51 other rights will not be impaired by granting an extension of time within
52 which to resume the use of the water and good cause appearing for such
53 nonuse, he may grant one (1) extension of five (5) years within which to
54 resume such use.
55 (d) In his approval of the application for an extension of time under
5
1 this section the director of the department of water resources shall set
2 the date when the use of water is to be resumed. Sixty (60) days before
3 such date the director of the department of water resources shall forward
4 to the applicant at his address of record a notice by certified mail set-
5 ting forth the date on which the use of water is to be resumed and a form
6 for reporting the resumption of the use of the water right. If the use of
7 the water has not been resumed and report thereon made on or before the
8 date set for resumption of use such right shall revert to the state and
9 again be subject to appropriation, as provided in this section.
10 (e) In the event the director of the department of water resources deter-
11 mines that a proposed extension of time within which to resume use of a
12 water right shall not be approved as provided in this section, he shall
13 deny same and forward notice of such action to the applicant by certified
14 mail, which decision shall be subject to judicial review as hereafter pro-
15 vided.
16 (5) Any person or persons feeling themselves aggrieved by the determina-
17 tion of the department of water resources in approving or rejecting an appli-
18 cation to change the point of diversion, place, period of use or nature of use
19 of water under an established right or an application for an extension of time
20 within which to resume the use of water as provided in this section, may, if a
21 protest was filed and a hearing held thereon, seek judicial review pursuant to
22 section 42-1701A(4), Idaho Code. If no protest was filed and no hearing held,
23 the applicant may request a hearing pursuant to section 42-1701A(3), Idaho
24 Code, for the purpose of contesting the action of the director and may seek
25 judicial review of the final order of the director following the hearing pur-
26 suant to section 42-1701A(4), Idaho Code.
27 (6) The director may impose appropriate sanctions upon any party for fil-
28 ing with the department a protest, petition, appeal, or any other document
29 pursuant to the provisions of this section, that is not reasonably grounded in
30 fact or law, or that is pursued, maintained, or used in an improper manner so
31 as to cause unnecessary delay, increased costs, or harassment. Appropriate
32 sanctions may include payment of the reasonable costs and expenses thereby
33 incurred by the other party or parties to the proceeding. The authority to
34 impose sanctions shall be exercised in the sound discretion of the director
35 and shall not be delegated by the director. Any party may seek judicial review
36 of a final order imposing sanctions in accordance with section 42-1701A(4),
37 Idaho Code.
STATEMENT OF PURPOSE
RS 11944
This legislation relating to water appropriation amends section
42-203A and 42-222 of the Idaho Code so that the Director of
Water Resources can impose sanctions for certain actions - such
as delaying, harassing and protesting etc. Appropriate sanctions
may include payment of reasonable costs and expenses. There are
also technical corrections as noted in the legislation.
FISCAL IMPACT
Changes made can be absorbed in current appropriations.
Contact:
Name: Sen. Rurtenshaw 332-1000,
Norm Semanko 344-6000
Lewis Eilers (208) 736-1953
STATEMENT OF PURPOSE/FISCAL NOTE S 1427