View Daily Data Tracking History
View Bill Text
View Statement of Purpose / Fiscal Impact
S1099.............................................by RESOURCES AND ENVIRONMENT
WATER - ILLEGAL DIVERSION - Amends existing law to specify conduct that
constitutes an illegal diversion or use of water; to authorize the director of
the Department of Water Resources to take certain actions upon investigation
of available information; to revise content requirements for notices of
violation; to revise civil penalty provisions for specified illegal diversion
or use of water; and to provide that designated action does not afford relief
from certain civil liability.
02/10 Senate intro - 1st rdg - to printing
02/11 Rpt prt - to Res/Env
02/25 Rpt out - rec d/p - to 2nd rdg
02/26 2nd rdg - to 3rd rdg
03/03 3rd rdg - PASSED - 35-0-0
AYES -- Andreason, Bailey, Brandt, Bunderson, Burkett, Burtenshaw,
Calabretta, Cameron, Compton, Darrington, Davis, Gannon, Geddes, Goedde,
Hill, Inram, Kennedy, Keough, Little, Lodge, Malepeai, Marley, McKenzie,
McWilliams, Noble, Noh, Pearce, Richardson, Schroeder, Sorensen,
Stegner, Stennett, Sweet, Werk, Williams
NAYS -- None
Absent and excused -- None
Floor Sponsor - Pearce
Title apvd - to House
03/04 House intro - 1st rdg - to Res/Con
03/12 Rpt out - rec d/p - to 2nd rdg
03/13 2nd rdg - to 3rd rdg
03/17 3rd rdg - PASSED - 69-0-1
AYES -- Andersen, Barraclough, Barrett, Bauer, Bedke, Bell, Bieter,
Black, Block, Boe, Bolz, Bradford, Campbell, Cannon, Clark, Collins,
Crow, Cuddy, Deal, Denney, Douglas, Eberle, Edmunson, Ellsworth,
Eskridge, Field(18), Field(23), Garrett, Harwood, Henbest, Jaquet,
Jones, Kellogg, Kulczyk, Lake, Langford, Langhorst, Martinez, McGeachin,
McKague, Meyer, Miller, Mitchell, Moyle, Naccarato, Nielsen, Raybould,
Ridinger, Ring, Ringo, Roberts, Robison, Rydalch, Sali, Sayler,
Schaefer, Shepherd, Shirley, Skippen, Smith(30), Smith(24), Smylie,
Snodgrass, Stevenson, Tilman, Trail, Wills, Wood, Mr. Speaker
NAYS -- None
Absent and excused -- Gagner
Floor Sponsor - Roberts
Title apvd - to Senate
03/19 To enrol
03/20 Rpt enrol - Pres signed
03/21 Sp signed
03/24 To Governor
03/27 Governor signed
Session Law Chapter 165
Effective: 07/01/03
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-seventh Legislature First Regular Session - 2003
IN THE SENATE
SENATE BILL NO. 1099
BY RESOURCES AND ENVIRONMENT COMMITTEE
1 AN ACT
2 RELATING TO THE ILLEGAL DIVERSION OR USE OF WATER; AMENDING SECTION 42-351,
3 IDAHO CODE, TO SPECIFY CONDUCT THAT CONSTITUTES AN ILLEGAL DIVERSION OR
4 USE OF WATER AND TO AUTHORIZE THE DIRECTOR TO TAKE CERTAIN ACTIONS UPON
5 INVESTIGATION OF AVAILABLE INFORMATION; AND AMENDING SECTION 42-1701B,
6 IDAHO CODE, TO REVISE CONTENT REQUIREMENTS FOR NOTICES OF VIOLATION, TO
7 REVISE CIVIL PENALTY PROVISIONS FOR SPECIFIED ILLEGAL DIVERSION OR USE OF
8 WATER, TO PROVIDE THAT DESIGNATED ACTION DOES NOT AFFORD RELIEF FROM CER-
9 TAIN CIVIL LIABILITY AND TO PROVIDE CORRECT REFERENCES.
10 Be It Enacted by the Legislature of the State of Idaho:
11 SECTION 1. That Section 42-351, Idaho Code, be, and the same is hereby
12 amended to read as follows:
13 42-351. ILLEGAL DIVERSION OR USE OF WATER -- ENFORCEMENT PROCEDURE --
14 INJUNCTIVE RELIEF. (1) If the director of the department of water resources
15 finds, on the basis of available information, that a person is diverting water
16 or has diverted It is unlawful for any person to divert or use water from a
17 natural watercourse or from a ground water source without having obtained a
18 valid water right to do so, or is applying water or has applied to divert or
19 use water not in conformance with a valid water right., then
20 (2) It is unlawful for any person to divert or use water in substantial
21 violation of any provision of this title, or any rule, permit, condition of
22 approval or order issued or promulgated pursuant to this title that is related
23 to the diversion or use of water.
24 (3) Upon investigation of available information, the director of the
25 department of water resources shall have the discretion to issue a written
26 notice of violation to the person in accordance with the provisions of section
27 42-1701B, Idaho Code, for the illegal diversion or use of water.
28 (4) Notwithstanding the issuance of a notice of violation, the director
29 may also file an action seeking injunctive relief directing the person to
30 cease and desist the activity or activities alleged to be in violation of
31 applicable law or any existing water right.
32 SECTION 2. That Section 42-1701B, Idaho Code, be, and the same is hereby
33 amended to read as follows:
34 42-1701B. ENFORCEMENT PROCEDURE -- NOTICE -- CONSENT ORDER -- CIVIL
35 ACTION. (1) Authority to commence actions. The director of the department of
36 water resources is authorized and may commence and pursue enforcement actions
37 to remedy the designated violations set out in title 42, Idaho Code.
38 (2) Notice. When the director commences an administrative enforcement
39 action the notice of violation shall be served upon the alleged violator in
40 person or by certified mail. The notice of violation shall identify the
41 alleged violation and shall specify each provision of the designated chapter,
2
1 rule, permit, condition of approval or order which has been violated. The
2 notice of violation shall state the remedy, including all any demand to cease
3 and desist, restoration and mitigation measures, and the amount of any civil
4 penalty the director seeks for redress of the violation. Factors the director
5 may consider in seeking the appropriate remedy include the impact of the
6 violation and whether the violation was willful, a repeat violation for which
7 the violator had been given a prior written warning, or the violator has
8 otherwise refused to comply with the department's lawful directives. The
9 notice of violation shall inform the person to whom it is directed of an
10 opportunity to confer with the director or the director's designee in a com-
11 pliance conference concerning the alleged violation.
12 (3) Response. A written response may be required within fourteen (14)
13 days of the receipt of the notice of violation by the person to whom it is
14 directed. If a recipient of a notice of violation contacts the department
15 within fourteen (14) days of the receipt of the notice, the recipient shall be
16 entitled to a compliance conference. The conference shall be held within
17 twenty-one (21) days of the receipt of the notice unless a later date is
18 agreed upon between the parties. If a compliance conference is not requested,
19 the director may proceed with a civil enforcement action as provided in this
20 section.
21 (4) Compliance conference and consent order. The compliance conference
22 shall provide an opportunity for the recipient of a notice of violation to
23 explain the circumstance of the alleged violation and, where appropriate, to
24 present a proposal for remedying the damage caused by the violation and assur-
25 ing future compliance. If the recipient and the director agree on a plan to
26 remedy damage caused by the alleged violation and to assure future compliance,
27 they may enter into a consent order formalizing their agreement. The consent
28 order may include a provision providing for payment of any agreed civil pen-
29 alty. The consent order shall be effective immediately upon signing by both
30 parties and shall preclude a civil enforcement action for the same alleged
31 violation. If a party does not comply with the terms of the consent order, the
32 director may seek and obtain in any appropriate district court, specific per-
33 formance of the consent order and other relief as authorized by law. If the
34 parties cannot agree to a consent order within fifty-six (56) days after the
35 receipt of the notice of violation, or if the recipient does not request a
36 compliance conference, the director may commence and prosecute a civil
37 enforcement action in the district court in accordance with this section.
38 (5) Civil enforcement actions.
39 (a) The director may initiate a civil enforcement action through the
40 attorney general as provided in this section. Civil enforcement actions
41 shall be commenced and prosecuted in the district court in and for the
42 county in which the alleged violation occurred, and may be brought against
43 any person who is alleged to have substantially violated any provision of
44 title 42, Idaho Code, or any rule promulgated pursuant to that title. The
45 action may be brought to compel compliance with provisions of title 42,
46 Idaho Code, or rules promulgated pursuant to that title. The director
47 shall not be required to prosecute an administrative enforcement action
48 before initiating a civil enforcement action.
49 (b) Nothing in this section shall preclude employees of the department
50 designated by the director from issuing Idaho uniform citations or written
51 administrative orders directing persons to cease and desist as authorized
52 by law.
53 (c) If the person who is the subject of the notice of violation fails to
54 cease and desist the activity or activities constituting the alleged
55 violation within the time limits set in the notice of violation, the
3
1 director may seek, by and through the attorney general, injunctive relief
2 in the district court pending the outcome of the administrative enforce-
3 ment action.
4 (d) In an action brought against a person for diverting water without
5 having obtained a valid water right to do so, the director need not allege
6 or prove that irreparable injury to the state or to other water users will
7 occur should the preliminary injunction not be issued or that the remedy
8 at law is inadequate, and the preliminary injunction or permanent injunc-
9 tion shall issue without those allegations and without that proof.
10 (6) Penalties.
11 (a) Any person determined in a judicial civil enforcement action to have
12 substantially violated any designated provision of title 42, Idaho Code,
13 or any rule promulgated pursuant to that title, shall be liable for a
14 civil penalty not to exceed ten thousand dollars ($10,000) per violation
15 or one hundred fifty dollars ($150) per day for a continuing violation,
16 whichever is greater; except that persons determined to be in violation of
17 section 42-351, Idaho Code, shall be liable for a civil penalty not to
18 exceed:
19 (i) For nonirrigation uses, fifty dollars ($50.00) per one-tenth
20 (0.1) cubic feet per second of water or part thereof, diverted per
21 calendar day, or fifty dollars ($50.00) per two tenths (0.2) of an
22 acre foot of water or part thereof diverted to storage, up to a maxi-
23 mum penalty of fifty thousand dollars ($50,000) per year for water
24 illegally used or diverted;
25 (ii) For irrigation uses, three hundred dollars ($300) annually for
26 each acre irrigated, in whole or in part, by the illegal use or
27 diversion.
28 (b) Civil penalties shall not be assessed for violations that have
29 occurred more than twelve (12) months prior to the issuance of the notice
30 of violation. The court shall determine the amount of the penalty based
31 upon the willfulness of the violation, the economic value obtained by the
32 violator and the damage to public resources and other water right holders.
33 A method of recovery of the penalty shall be a civil enforcement action in
34 and for the county where the violation occurred.
35 (c) All civil penalties collected under this section shall be paid into
36 the water right enforcement account established pursuant to section
37 42-1778, Idaho Code.
38 (d) Parties to an administrative enforcement action may agree to a civil
39 penalty as provided in this subsection.
40 (7) No action taken pursuant to this section shall relieve any person
41 from any civil action liability and damages that may exist for injury or dam-
42 age resulting to others. from any violation of this chapter, or the rules pro-
43 mulgated pursuant to this chapter.
44 (8) Upon request of the director, it shall be the duty of the attorney
45 general to institute and prosecute civil enforcement actions pursuant to this
46 chapter section.
STATEMENT OF PURPOSE
RS 12881
The purpose of this legislation is to modify Section 42-351, Idaho
Code, regarding the illegal diversion and use of water so that the
statute specifically provides that it is unlawful to divert or
apply water without a water right. The amending language also
provides that it is unlawful to divert or apply water in a manner
not in conformance with the provisions of a valid water right, or
in a manner that violates any provision of Title 42, Idaho Code, or
any rule, permit, condition of approval or order issued or
promulgated pursuant to Title 42. The legislation also would amend
Section 42-1701B, Idaho Code, to provide for the issuance of cease
and desist orders by the Director of the Department of Water
Resources for the unlawful diversion and use of water. The
amendment would clarify how the civil penalty is calculatd for
water illegally diverted to storage.
FISCAL IMPACT
Enactment of this legislation will not affect the state's General
Fund.
CONTACT
Name: Karl Dreher
Agency: Water Resources, Dept. of
Phone: 327-7910
Statement of Purpose/Fiscal Impact S 109