2003 Legislation
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HOUSE BILL NO. 57 – Water Resources Dept, hearings

HOUSE BILL NO. 57

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H0057...........................................................by MR. SPEAKER
                 Requested by: Department of Water Resources
WATER RESOURCES DEPARTMENT - HEARINGS - Amends existing law relating to
hearings before the Department of Water Resources to provide for recommended
or preliminary orders by hearing officers; to provide that certain persons
shall be entitled to a hearing before the director of the Department of Water
Resources; to provide for petitions to initiate hearings; to provide judicial
review; and to require exhaustion of administrative remedies prior to judicial
review.
                                                                        
01/06    House intro - 1st rdg - to printing
    Rpt prt - to Res/Con

Bill Text


                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-seventh Legislature                 First Regular Session - 2003
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 57
                                                                        
                                       BY MR. SPEAKER
                        Requested by: Department of Water Resources
                                                                        
  1                                        AN ACT
  2    RELATING TO HEARINGS BEFORE THE DEPARTMENT OF WATER RESOURCES;  AMENDING  SEC-
  3        TION  42-1701A,  IDAHO CODE, TO CLARIFY A TERM, TO PROVIDE FOR RECOMMENDED
  4        OR PRELIMINARY ORDERS BY HEARING OFFICERS, TO PROVIDE THAT CERTAIN PERSONS
  5        SHALL BE ENTITLED TO A HEARING BEFORE THE DIRECTOR, TO PROVIDE  FOR  PETI-
  6        TIONS  TO INITIATE HEARINGS, TO PROVIDE A MANDATORY PROCEDURE FOR JUDICIAL
  7        REVIEW OF ANY FINAL ORDER OF THE DIRECTOR, TO REQUIRE EXHAUSTION OF ADMIN-
  8        ISTRATIVE REMEDIES PRIOR TO JUDICIAL REVIEW, AND TO PROVIDE  THAT  EXHAUS-
  9        TION OF ADMINISTRATIVE REMEDIES DOES NOT REQUIRE CERTAIN SPECIFIED ACTION.
                                                                        
 10    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 11        SECTION  1.  That Section 42-1701A, Idaho Code, be, and the same is hereby
 12    amended to read as follows:
                                                                        
 13        42-1701A.  HEARINGS BEFORE DIRECTOR -- APPEALS. (1) All hearings  required
 14    by  law  to  be  held before the director of the department of water resources
 15    shall be conducted in accordance with the provisions of chapter 52, title  67,
 16    Idaho Code, and rules of procedure promulgated by the director.
 17        (2)  The  director,  in  his discretion, may direct that a hearing be con-
 18    ducted by a hearing officer appointed by the  director.  In  such  event,  the
 19    hearing  officer shall have the duty to make a complete record of the evidence
 20    presented and duly received at the hearing and to prepare a proposal for deci-
 21    sion recommended or preliminary order in accordance with chapter 52, title 67,
 22    Idaho Code, and rules of procedure promulgated by the director.
 23        (3) (a)  Unless the right to a hearing before the director  or  the  water
 24        resource  board  is  otherwise  provided by statute, the following persons
 25        shall be entitled to a hearing before the director in the event they  have
 26        not previously been afforded an opportunity for a hearing on the matter:
 27             (i)   Aany  person  aggrieved by any a decision, determination, order
 28             or action of the director; of the department of water resources or
 29             (ii)  Aany  applicant  for  any  a  permit,   license,   certificate,
 30             approval, registration, or similar form of permission required by law
 31             to  be issued by the director, who is aggrieved by a denial or condi-
 32             tional approval ordered by the director, and who has  not  previously
 33             been  afforded  an  opportunity  for a hearing on the matter shall be
 34             entitled to a hearing before the director to contest  the  denial  or
 35             conditional approval upon filing with the director,.
 36        (b)  In  order  to initiate a hearing, a person shall file a written peti-
 37        tion with the director. The written petition shall contain a request for a
 38        hearing and shall set forth the grounds upon which a decision,  determina-
 39        tion,  order,  action,  denial or conditional approval is being contested.
 40        Any written petition pursuant to this subsection shall be filed  with  the
 41        director  within  fifteen  (15) days after receipt of the denial or condi-
 42        tional approval, a written petition stating the grounds for contesting the
 43        action by the director and requesting a hearing the  service  date  of  an
                                                                        
                                           2
                                                                        
  1        order,  or in the event an order was not issued, the date the agency gives
  2        individual or public notice of the action.
  3        (c)  The hearing shall be held and conducted in accordance with the provi-
  4        sions of subsections (1) and (2) of this section. Judicial review  of  any
  5        final order  of the director issued following the hearing may shall be had
  6        pursuant to subsection (4) of this section.
  7        (4)  Any person who has exhausted available administrative remedies and is
  8    aggrieved by a final decision or order of the director is entitled to judicial
  9    review.  Exhaustion  of  administrative remedies does not require an aggrieved
 10    person to petition for reconsideration or file  exceptions  prior  to  seeking
 11    judicial  review  of a final order. The judicial review shall be had in accor-
 12    dance with the provisions and standards set forth in  chapter  52,  title  67,
 13    Idaho Code.

Statement of Purpose / Fiscal Impact


                     STATEMENT OF PURPOSE

                             RS 12377

This proposed amendment would correct an ambiguity in the present
wording of Section 42-1701A(3), Idaho Code, which could be read to
limit the opportunity to request a hearing before the director of
the Department of Water Resources to persons aggrieved by action
upon an application for permit, license, certificate or other
similar form of permission. The proposed amendment to the statute
would clarify that any person aggrieved by an action of the
director shall be entitled to request a hearing to contest the
action, if the right to a hearing is not otherwise provided by
statute. In addition, the amendment clarifies that a person must
first exhaust available administrative remedies before seeking
judicial review of a final decision of the director.



                         FISCAL IMPACT

Enactment of this legislation will not affect the state's General
Fund. 


CONTACT
Name:        Karl Dreher
Agency:      Water Resources, Dept. of
Phone:       (208) 327-7910

Statement of Purpose/Fiscal Impact                      H 5