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H0284.....................................................by WAYS AND MEANS
WATER RIGHTS - Amends existing law to revise criteria to be considered by
the director of the Department of Water Resources associated with the
determination of applications for appropriation of water, change in point
of diversion, place of use, period of use or nature of use of water under
established rights, certain exchanges of water and proposed rentals of
water from the water supply bank; and to clarify the manner in which
minimum stream flow water rights may be established.
02/20 House intro - 1st rdg - to printing
02/21 Rpt prt - to Res/Con
03/04 Rpt out - rec d/p - to 2nd rdg
03/05 2nd rdg - to 3rd rdg
03/07 3rd rdg - PASSED - 53-15-2
AYES -- Barraclough, Barrett, Bauer, Bedke, Bell, Black, Block, Bolz,
Bradford, Campbell, Cannon, Clark, Collins, Crow, Cuddy, Denney,
Eberle, Edmunson, Ellsworth, Eskridge, Field(18), Field(23), Gagner,
Garrett, Harwood, Kellogg, Kulczyk, Lake, Langford, McGeachin,
McKague, Meyer, Miller, Moyle, Nielsen, Raybould, Ridinger, Ring,
Roberts, Rydalch, Sali, Schaefer, Shepherd, Shirley, Skippen,
Smith(24), Smylie, Snodgrass, Stevenson, Tilman, Wills, Wood, Mr.
Speaker
NAYS -- Andersen, Bieter, Boe, Deal, Douglas, Henbest, Jaquet, Jones,
Langhorst, Martinez, Ringo, Robison, Sayler, Smith(30), Trail
Absent and excused -- Mitchell, Naccarato
Floor Sponsor - Stevenson
Title apvd - to Senate
03/10 Senate intro - 1st rdg - to Res/Env
04/03 Rpt out - rec d/p - to 2nd rdg
04/04 2nd rdg - to 3rd rdg
04/07 3rd rdg - PASSED - 28-7-0
AYES -- Andreason, Bailey, Brandt, Bunderson, Burtenshaw, Cameron,
Compton, Darrington, Davis, Gannon, Geddes, Goedde, Hill, Ingram,
Keough, Little, Lodge, Marley, McKenzie, McWilliams, Noble, Noh,
Pearce, Richardson, Sorensen, Stegner, Sweet, Williams
NAYS -- Burkett, Calabretta, Kennedy, Malepeai(Kumm), Schroeder,
Stennett, Werk
Absent and excused -- None
Floor Sponsor - Noh
Title apvd - to House
04/08 To enrol
04/09 Rpt enrol - Sp signed - Pres signed
04/10 To Governor
04/15 Governor signed
Session Law Chapter 298
Effective: 07/01/03
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-seventh Legislature First Regular Session - 2003
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 284
BY WAYS AND MEANS COMMITTEE
1 AN ACT
2 RELATING TO WATER RIGHTS; AMENDING SECTION 42-202B, IDAHO CODE, TO PROVIDE FOR
3 CERTAIN APPLICATION OF DEFINITIONS AND TO DEFINE A TERM; AMENDING SECTION
4 42-203A, IDAHO CODE, TO REVISE CRITERIA TO BE CONSIDERED BY THE DIRECTOR
5 OF THE DEPARTMENT OF WATER RESOURCES ASSOCIATED WITH THE DETERMINATION OF
6 APPLICATIONS FOR THE APPROPRIATION OF WATER AND TO CLARIFY THE MANNER IN
7 WHICH MINIMUM STREAM FLOW WATER RIGHTS MAY BE ESTABLISHED AND TO MAKE
8 TECHNICAL CORRECTIONS; AMENDING SECTION 42-222, IDAHO CODE, TO REVISE CRI-
9 TERIA TO BE CONSIDERED BY THE DIRECTOR ASSOCIATED WITH THE DETERMINATION
10 OF APPLICATIONS TO CHANGE THE POINT OF DIVERSION, PLACE OF USE, PERIOD OF
11 USE OR NATURE OF USE OF WATER UNDER ESTABLISHED RIGHTS AND TO CLARIFY THE
12 MANNER IN WHICH MINIMUM STREAM FLOW WATER RIGHTS MAY BE ESTABLISHED;
13 AMENDING SECTION 42-240, IDAHO CODE, TO REVISE CRITERIA TO BE CONSIDERED
14 BY THE DIRECTOR ASSOCIATED WITH THE DETERMINATION OF APPLICATIONS TO MAKE
15 CERTAIN EXCHANGES OF WATER; AND AMENDING SECTION 42-1763, IDAHO CODE, TO
16 REVISE CRITERIA TO BE CONSIDERED BY THE DIRECTOR ASSOCIATED WITH THE
17 DETERMINATION OF PROPOSED RENTALS OF WATER FROM THE WATER SUPPLY BANK.
18 Be It Enacted by the Legislature of the State of Idaho:
19 SECTION 1. That Section 42-202B, Idaho Code, be, and the same is hereby
20 amended to read as follows:
21 42-202B. DEFINITIONS. Whenever used in this chapter title, the term:
22 (1) "Consumptive use" means that portion of the annual volume of water
23 diverted under a water right that is transpired by growing vegetation, evapo-
24 rated from soils, converted to nonrecoverable water vapor, incorporated into
25 products, or otherwise does not return to the waters of the state. Consumptive
26 use does not include any water that falls as precipitation directly on the
27 place of use unless the precipitation is captured, controlled and used under
28 an appurtenant water right.
29 (2) "Digital boundary" means the boundary encompassing and defining an
30 area consisting of or incorporating the place of use or permissible place of
31 use for a water right prepared and maintained by the department of water
32 resources using a geographic information system in conformance with the
33 national standard for spatial data accuracy or succeeding standard.
34 (3) "Local public interest" is defined as the interests that the people
35 in the area directly affected by a proposed water use have in the effects of
36 such use on the public water resource.
37 (4) "Municipality" means a city incorporated under section 50-102, Idaho
38 Code, a county, or the state of Idaho acting through a department or institu-
39 tion.
40 (45) "Municipal provider" means:
41 (a) A municipality that provides water for municipal purposes to its res-
42 idents and other users within its service area;
43 (b) Any corporation or association holding a franchise to supply water
2
1 for municipal purposes, or a political subdivision of the state of Idaho
2 authorized to supply water for municipal purposes, and which does supply
3 water, for municipal purposes to users within its service area; or
4 (c) A corporation or association which supplies water for municipal pur-
5 poses through a water system regulated by the state of Idaho as a "public
6 water supply" as described in section 39-103(10), Idaho Code.
7 (56) "Municipal purposes" refers to water for residential, commercial,
8 industrial, irrigation of parks and open space, and related purposes, exclud-
9 ing use of water from geothermal sources for heating, which a municipal pro-
10 vider is entitled or obligated to supply to all those users within a service
11 area, including those located outside the boundaries of a municipality served
12 by a municipal provider.
13 (67) "Planning horizon" refers to the length of time that the department
14 determines is reasonable for a municipal provider to hold water rights to meet
15 reasonably anticipated future needs. The length of the planning horizon may
16 vary according to the needs of the particular municipal provider.
17 (78) "Reasonably anticipated future needs" refers to future uses of water
18 by a municipal provider for municipal purposes within a service area which, on
19 the basis of population and other planning data, are reasonably expected to be
20 required within the planning horizon of each municipality within the service
21 area not inconsistent with comprehensive land use plans approved by each
22 municipality. Reasonably anticipated future needs shall not include uses of
23 water within areas overlapped by conflicting comprehensive land use plans.
24 (89) "Service area" means that area within which a municipal provider is
25 or becomes entitled or obligated to provide water for municipal purposes. For
26 a municipality, the service area shall correspond to its corporate limits, or
27 other recognized boundaries, including changes therein after the permit or
28 license is issued. The service area for a municipality may also include areas
29 outside its corporate limits, or other recognized boundaries, that are within
30 the municipality's established planning area if the constructed delivery sys-
31 tem for the area shares a common water distribution system with lands located
32 within the corporate limits. For a municipal provider that is not a municipal-
33 ity, the service area shall correspond to the area that it is authorized or
34 obligated to serve, including changes therein after the permit or license is
35 issued.
36 SECTION 2. That Section 42-203A, Idaho Code, be, and the same is hereby
37 amended to read as follows:
38 42-203A. NOTICE UPON RECEIPT OF APPLICATION -- PROTEST -- HEARING AND
39 FINDINGS -- APPEALS. (1) Upon receipt of an application to appropriate the
40 waters of this state, the department of water resources, shall prepare a
41 notice in such form as the department may prescribe, specifying: (a) the num-
42 ber of the application; (b) the date of filing thereof; (c) the name and post-
43 office address of the applicant; (d) the source of the water supply; (e) the
44 amount of water to be appropriated; (f) in general the nature of the proposed
45 use; (g) the approximate location of the point of diversion; and (h) and the
46 point of use. The department shall also state in said notice that any protest
47 against the approval of such application, in form prescribed by the depart-
48 ment, shall be filed with the department within ten (10) days from the last
49 date of publication of such notice.
50 (2) The director of the department of water resources shall cause the
51 notice to be published in a newspaper printed within the county wherein the
52 point of diversion lies, or, in the event no newspaper is printed in said
53 county, then in a newspaper of general circulation therein. When the applica-
3
1 tion proposes a diversion in excess of ten (10) c.f.s. or one thousand (1,000)
2 acre feet, the director shall cause the notice to be published in a newspaper
3 or newspapers sufficient to achieve statewide circulation. Any notice shall be
4 published at least once each week for two (2) successive weeks.
5 (3) The director of the department shall cause a copy of the notice of
6 application to be sent by ordinary mail to any person who requests in writing
7 to receive any class of notices of application and who pays an annual mailing
8 fee as established by departmental regulation.
9 (4) Any person, firm, association or corporation concerned in any such
10 application may, within the time allowed in the notice of application, file
11 with said director of the department of water resources a written protest,
12 together with the statutory filing fee as provided in section 42-221, Idaho
13 Code, against the approval of such application, which protest shall state the
14 name and address of protestant and shall be signed by him or by his agent or
15 attorney and shall clearly set forth his objections to the approval of such
16 application. Hearing upon the protest so filed shall be held within sixty (60)
17 days from the date such protest is received. Notice of this hearing shall be
18 given by mailing notice not less than ten (10) days before the date of hearing
19 and shall be forwarded to both the applicant and the protestant, or
20 protestants, by certified mail. Such notice shall state the names of the
21 applicant and protestant, or protestants, the time and place fixed for the
22 hearing and such other information as the director of the department of water
23 resources may deem advisable. In the event that no protest is filed, then the
24 director of the department of water resources may forthwith approve the appli-
25 cation, providing the same in all respects conforms with the requirements of
26 this chapter, and with the regulations of the department of water resources.
27 (5) Such hearing shall be conducted in accordance with the provisions of
28 section 42-1701A(1) and (2), Idaho Code. The director of the department of
29 water resources shall find and determine from the evidence presented to what
30 use or uses the water sought to be appropriated can be and are intended to be
31 applied. In all applications whether protested or not protested, where the
32 proposed use is such (a) that it will reduce the quantity of water under
33 existing water rights, or (b) that the water supply itself is insufficient for
34 the purpose for which it is sought to be appropriated, or (c) where it appears
35 to the satisfaction of the director that such application is not made in good
36 faith, is made for delay or speculative purposes, or (d) that the applicant
37 has not sufficient financial resources with which to complete the work
38 involved therein, or (e) that it will conflict with the local public interest,
39 where the local public interest is as defined as the affairs of the people in
40 the area directly affected by the proposed use in section 42-202B, Idaho Code,
41 or (f) that it is contrary to conservation of water resources within the state
42 of Idaho, or (g) that it will adversely affect the local economy of the water-
43 shed or local area within which the source of water for the proposed use orig-
44 inates, in the case where the place of use is outside of the watershed or
45 local area where the source of water originates; the director of the depart-
46 ment of water resources may reject such application and refuse issuance of a
47 permit therefor, or may partially approve and grant a permit for a smaller
48 quantity of water than applied for, or may grant a permit upon conditions.
49 Provided however, that minimum stream flow water rights may not be established
50 under the local public interest criterion, and may only be established pursu-
51 ant to chapter 15, title 42, Idaho Code. The provisions of this section shall
52 apply to any boundary stream between this and any other state in all cases
53 where the water sought to be appropriated has its source largely within the
54 state, irrespective of the location of any proposed power generating plant.
55 (6) Any person or corporation who has formally appeared at the hearing,
4
1 aggrieved by the judgment of the director of the department of water
2 resources, may seek judicial review thereof in accordance with section
3 42-1701A(4), Idaho Code.
4 SECTION 3. That Section 42-222, Idaho Code, be, and the same is hereby
5 amended to read as follows:
6 42-222. CHANGE IN POINT OF DIVERSION, PLACE OF USE, PERIOD OF USE, OR
7 NATURE OF USE OF WATER UNDER ESTABLISHED RIGHTS -- FORFEITURE AND EXTENSION --
8 APPEALS. (1) Any person, entitled to the use of water whether represented by
9 license issued by the department of water resources, by claims to water rights
10 by reason of diversion and application to a beneficial use as filed under the
11 provisions of this chapter, or by decree of the court, who shall desire to
12 change the point of diversion, place of use, period of use or nature of use of
13 all or part of the water, under the right shall first make application to the
14 department of water resources for approval of such change. Such application
15 shall be upon forms furnished by the department and shall describe the right
16 licensed, claimed or decreed which is to be changed and the changes which are
17 proposed, and shall be accompanied by the statutory filing fee as in this
18 chapter provided. Upon receipt of such application it shall be the duty of the
19 director of the department of water resources to examine same, obtain any con-
20 sent required in section 42-108, Idaho Code, and if otherwise proper to pro-
21 vide notice of the proposed change in the same manner as applications under
22 section 42-203A, Idaho Code. Such notice shall advise that anyone who desires
23 to protest the proposed change shall file notice of protests with the depart-
24 ment within ten (10) days of the last date of publication. Upon the receipt of
25 any protest, accompanied by the statutory filing fee as provided in section
26 42-221, Idaho Code, it shall be the duty of the director of the department of
27 water resources to investigate the same and to conduct a hearing thereon. He
28 shall also advise the watermaster of the district in which such water is used
29 of the proposed change and the watermaster shall notify the director of the
30 department of water resources of his recommendation on the application, and
31 the director of the department of water resources shall not finally determine
32 the action on the application for change until he has received from such
33 watermaster his recommendation thereof, which action of the watermaster shall
34 be received and considered as other evidence.
35 When the nature of use of the water right is to be changed to municipal
36 purposes and some or all of the right will be held by a municipal provider to
37 serve reasonably anticipated future needs, the municipal provider shall pro-
38 vide to the department sufficient information and documentation to establish
39 that the applicant qualifies as a municipal provider and that the reasonably
40 anticipated future needs, the service area and the planning horizon are con-
41 sistent with the definitions and requirements specified in this chapter. The
42 service area need not be described by legal description nor by description of
43 every intended use in detail, but the area must be described with sufficient
44 information to identify the general location where the water under the water
45 right is to be used and the types and quantity of uses that generally will be
46 made.
47 When a water right or a portion thereof to be changed is held by a munici-
48 pal provider for municipal purposes, as defined in section 42-202B, Idaho
49 Code, that portion of the right held for reasonably anticipated future needs
50 at the time of the change shall not be changed to a place of use outside the
51 service area, as defined in section 42-202B, Idaho Code, or to a new nature of
52 use.
53 The director of the department of water resources shall examine all the
5
1 evidence and available information and shall approve the change in whole, or
2 in part, or upon conditions, provided no other water rights are injured
3 thereby, the change does not constitute an enlargement in use of the original
4 right, the change is consistent with the conservation of water resources
5 within the state of Idaho and is in the local public interest as defined in
6 section 42-203A(5) 42-202B, Idaho Code, the change will not adversely affect
7 the local economy of the watershed or local area within which the source of
8 water for the proposed use originates, in the case where the place of use is
9 outside of the watershed or local area where the source of water originates,
10 and the new use is a beneficial use, which in the case of a municipal provider
11 shall be satisfied if the water right is necessary to serve reasonably antici-
12 pated future needs as provided in this chapter. The director may consider con-
13 sumptive use, as defined in section 42-202B, Idaho Code, as a factor in deter-
14 mining whether a proposed change would constitute an enlargement in use of the
15 original water right. The director shall not approve a change in the nature of
16 use from agricultural use where such change would significantly affect the
17 agricultural base of the local area. The transfer of the right to the use of
18 stored water for irrigation purposes shall not constitute an enlargement in
19 use of the original right even though more acres may be irrigated, if no other
20 water rights are injured thereby. A copy of the approved application for
21 change shall be returned to the applicant and he shall be authorized upon
22 receipt thereof to make the change and the original water right shall be pre-
23 sumed to have been amended by reason of such authorized change. In the event
24 the director of the department of water resources determines that a proposed
25 change shall not be approved as provided in this section, he shall deny the
26 same and forward notice of such action to the applicant by certified mail,
27 which decision shall be subject to judicial review as hereafter provided set
28 forth. Provided however, minimum stream flow water rights may not be estab-
29 lished under the local public interest criterion, and may only be established
30 pursuant to chapter 15, title 42, Idaho Code.
31 (2) All rights to the use of water acquired under this chapter or other-
32 wise shall be lost and forfeited by a failure for the term of five (5) years
33 to apply it to the beneficial use for which it was appropriated and when any
34 right to the use of water shall be lost through nonuse or forfeiture such
35 rights to such water shall revert to the state and be again subject to appro-
36 priation under this chapter; except that any right to the use of water shall
37 not be lost through forfeiture by the failure to apply the water to beneficial
38 use under certain circumstances as specified in section 42-223, Idaho Code.
39 (3) Upon proper showing before the director of the department of water
40 resources of good and sufficient reason for nonapplication to beneficial use
41 of such water for such term of five (5) years, the director of the department
42 of water resources is hereby authorized to grant an extension of time extend-
43 ing the time for forfeiture of title for nonuse thereof, to such waters for a
44 period of not to exceed five (5) additional years.
45 (4) Application for an extension shall be made before the end of the five
46 (5) year period upon forms to be furnished by the department of water
47 resources and shall fully describe the right on which an extension of time to
48 resume the use is requested and the reasons for such nonuse and shall be
49 accompanied by the statutory filing fee; provided that water rights protected
50 from forfeiture under the provisions of section 42-223, Idaho Code, are exempt
51 from this requirement.
52 (a) Upon the receipt of such application it shall be the duty of the
53 director of the department of water resources to examine the same and to
54 provide notice of the application for an extension in the same manner as
55 applications under section 42-203A, Idaho Code. The notice shall fully
6
1 describe the right, the extension which is requested and the reason for
2 such nonuse and shall state that any person desiring to object to the
3 requested extension may submit a protest, accompanied by the statutory
4 filing fee as provided in section 42-221, Idaho Code, to the director of
5 the department of water resources within ten (10) days of the last date of
6 publication.
7 (b) Upon receipt of a protest it shall be the duty of the director of the
8 department of water resources to investigate and conduct a hearing thereon
9 as in this chapter provided.
10 (c) The director of the department of water resources shall find from the
11 evidence presented in any hearing, or from information available to the
12 department, the reasons for such nonuse of water and where it appears to
13 the satisfaction of the director of the department of water resources that
14 other rights will not be impaired by granting an extension of time within
15 which to resume the use of the water and good cause appearing for such
16 nonuse, he may grant one (1) extension of five (5) years within which to
17 resume such use.
18 (d) In his approval of the application for an extension of time under
19 this section the director of the department of water resources shall set
20 the date when the use of water is to be resumed. Sixty (60) days before
21 such date the director of the department of water resources shall forward
22 to the applicant at his address of record a notice by certified mail set-
23 ting forth the date on which the use of water is to be resumed and a form
24 for reporting the resumption of the use of the water right. If the use of
25 the water has not been resumed and report thereon made on or before the
26 date set for resumption of use such right shall revert to the state and
27 again be subject to appropriation, as provided in this section.
28 (e) In the event the director of the department of water resources deter-
29 mines that a proposed extension of time within which to resume use of a
30 water right shall not be approved as provided in this section, he shall
31 deny same and forward notice of such action to the applicant by certified
32 mail, which decision shall be subject to judicial review as hereafter pro-
33 vided.
34 (5) Any person or persons feeling themselves aggrieved by the determina-
35 tion of the department of water resources in approving or rejecting an appli-
36 cation to change the point of diversion, place, period of use or nature of use
37 of water under an established right or an application for an extension of time
38 within which to resume the use of water as provided in this section, may, if a
39 protest was filed and a hearing held thereon, seek judicial review pursuant to
40 section 42-1701A(4), Idaho Code. If no protest was filed and no hearing held,
41 the applicant may request a hearing pursuant to section 42-1701A(3), Idaho
42 Code, for the purpose of contesting the action of the director and may seek
43 judicial review of the final order of the director following the hearing pur-
44 suant to section 42-1701A(4), Idaho Code.
45 SECTION 4. That Section 42-240, Idaho Code, be, and the same is hereby
46 amended to read as follows:
47 42-240. APPLICATION FOR RIGHT TO EXCHANGE WATER -- FILING FEE -- NOTICE
48 -- PROTEST -- HEARING -- APPROVAL OR DENIAL -- APPEAL. (1) Any person holding
49 a right for the use of surface water may make application to the director of
50 the department of water resources to exchange water authorized to be diverted
51 under the right with the same or a different source, or with water authorized
52 to be diverted under one (1) or more other rights from the same source or
53 another surface water source. If the application proposes an exchange with
7
1 water under another water right, the application shall be accompanied by an
2 agreement in writing subscribed by the person proposing the exchange and each
3 person or organization owning rights to water with whom the exchange is pro-
4 posed to be made.
5 (2) The application shall be upon forms furnished by the department and
6 shall contain such information as shall enable the director to determine the
7 nature of the proposed exchange, and shall be accompanied by the statutory
8 filing fee provided under section 42-221, Idaho Code, for an application to
9 change a vested water right.
10 (3) Upon receipt of the application, it shall be the duty of the director
11 to examine the same and, if otherwise proper, to cause notice of the proposed
12 exchange to be published in the same manner as applications under section
13 42-203A, Idaho Code. The notice shall fully describe the nature of the pro-
14 posed exchange of water and shall advise that anyone who wishes to protest
15 shall file notice of protest in accordance with the provisions of section
16 42-203A, Idaho Code.
17 (4) Upon the receipt of any protest it shall be the duty of the director
18 to investigate the same and to conduct a hearing thereon. The director shall
19 also advise the watermaster of the district in which the exchange is proposed,
20 if a district exists, and the watermaster shall notify the director of the
21 watermaster's recommendations on the application. The director shall not take
22 final action on the application or exchange until the director has received
23 the recommendations of the watermaster, including recommended conditions nec-
24 essary for the exchange of water to be properly administered and regulated.
25 (5) The director shall examine all the evidence and available information
26 and shall approve the exchange in whole, or in part, or upon conditions, pro-
27 vided no other water rights are injured thereby, the exchange does not consti-
28 tute an enlargement in use of the original right or rights, the exchange is
29 consistent with the conservation of water resources within the state of Idaho,
30 and the exchange is in the local public interest as defined in section 42-203A
31 42-202B, Idaho Code, and the exchange will not adversely affect the local
32 economy of the watershed or local area within which the source of water for
33 the proposed use originates, in the case where the place of use is outside of
34 the watershed or local area where the source of water originates. Unless
35 otherwise provided in a written agreement between the applicant and other
36 right holders, the director shall condition approval of an exchange so that
37 the exchange will not be operative during times when water is not available to
38 satisfy the exchange, and that during these times the right to use water auto-
39 matically reverts to the place of use authorized under the water rights. A
40 copy of the approved application for exchange shall be provided to the appli-
41 cant and the watermaster, and the applicant shall be authorized upon receipt
42 thereof to make the exchange in accordance with the conditions set forth by
43 the director. Should an approved exchange thereafter be discontinued, the
44 applicant or the applicant's successor in interest must so notify the director
45 and the district watermaster.
46 (6) In the absence of a contrary agreement by the parties to an exchange,
47 when the director has approved a right to exchange storage water for the natu-
48 ral flow of a stream or other water supply, the storage water shall be deliv-
49 ered in preference to any exchange rights subsequently approved using the same
50 storage water right.
51 (7) Any person or persons feeling themselves aggrieved by a final order
52 or final action of the director under this section may, if a protest was filed
53 and hearing held thereon, seek judicial review pursuant to section
54 42-1701A(4), Idaho Code. If no protest was filed and no hearing held, the
55 applicant may request a hearing pursuant to section 42-1701A(3), Idaho Code,
8
1 for the purpose of contesting the action of the director and may seek judicial
2 review of the final order of the director following the hearing pursuant to
3 section 42-1701A(4), Idaho Code.
4 SECTION 5. That Section 42-1763, Idaho Code, be, and the same is hereby
5 amended to read as follows:
6 42-1763. RENTALS FROM BANK -- APPROVAL BY DIRECTOR. The terms and condi-
7 tions of any rental of water from the water supply bank must be approved by
8 the director of the department of water resources. The director of the depart-
9 ment of water resources may reject and refuse approval for or may partially
10 approve for a less quantity of water or may approve upon conditions any pro-
11 posed rental of water from the water supply bank where the proposed use is
12 such that it will reduce the quantity of water available under other existing
13 water rights, the water supply involved is insufficient for the purpose for
14 which it is sought, the rental would cause the use of water to be enlarged
15 beyond that authorized under the water right to be rented, or it the rental
16 will conflict with the local public interest where the local public interest
17 is as defined as the affairs of the people in the area directly affected by
18 the proposed use in section 42-202B, Idaho Code, or the rental will adversely
19 affect the local economy of the watershed or local area within which the
20 source of water for the proposed use originates, in the case where the place
21 of use is outside of the watershed or local area where the source of water
22 originates. The director shall consider in determining whether to approve a
23 rental of water for use outside of the state of Idaho those factors enumerated
24 in subsection (3) of section 42-401, Idaho Code.
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STATEMENT OF PURPOSE
RS 13046
This legislation clarifies the scope of the "local public
interest" review in water right applications, transfers and water
supply bank transactions. This legislation is intended to ensure
that the Department of Water Resources has adequate authority to
require that diversions, transfers and other actions affecting
water resources do not frustrate the public's interest in the
effective utilization of its water resources. The "local public
interest" should be construed to ensure the greatest possible
benefit from the public waters is achieved; however, it should
not be construed to require the Department to consider secondary
effects of an activity simply because that activity happens to
use water. For example, the effect of a new manufacturing plant
on water quality, resident fish and wildlife and the availability
of water for other beneficial uses is appropriately considered
under the local public interest criteria. On the other hand, the
effect of the manufacturing plant on the air quality is not
within the local public interest criteria because it is not an
effect of the diversion of water but rather a secondary effect of
the proposed plant. While the impact of the manufacturing plant
on air quality is important, this effect should be evaluated by
DEQ under the E P H A. As noted by the Idaho Supreme Court in
Shokal v. Dunn, 109 Idaho 330 (1985), "[i]t is not the primary
job of Water Resources to protect the health and welfare of
Idaho's citizens and visitors that role is vested" in other
agencies.
Water Resources role under the "local public interest" is to
ensure that proposed water uses are consistent with securing "the
greatest possible benefit from [the public waters] for the
public." Thus, within the confines of this legislation, Water
Resources should consider all locally important factors affecting
the public water resources, including but not limited to fish and
wildlife habitat, aquatic life, recreation, aesthetic beauty,
transportation, navigation, water quality and the effect of such
use on the availability of water for alternative uses of water
that might be made within a reasonable time. This legislation
contemplates that "[t]he relevant impacts and their relative
weights will vary with local needs, circumstances, and
interests." "The determination of what elements of the public
interest are impacted, and what the public interest requires, is
committee to Water Resources' sound discretion."
In recent years, some transactions have been delayed by
protests based on a broad range of social, economic and
environmental policy issues having nothing to do with the impact
of the proposed action on the public's water resource.
Applicants have experienced costly delays and have been required
to hire experts to respond to issues at an agency whose propose
has nothing to do with those issues.
This legislation also clarifies that the effect on the local
economy of a watershed or local area that is the source of a
proposed use of water but not the place of use for the proposed
use shall be considered. The purpose of this criteria is to
ensure that out of basin transfers do not deprive a local area of
use of the available water supply.
FISCAL IMPACT
This legislation should remove significant financial burdens
on the Department of Water Resources and on private parties.
This legislation should impose no fiscal burden on any agency or
unit of government.
Contact
Name: Rep. John A. "Bert" Stevenson
Phone: (208) 332-1000
Sen. Laird Noh
STATEMENT OF PURPOSE/FISCAL NOTE Bill No. 284