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H0633.........................................by RESOURCES AND CONSERVATION
WATER RIGHTS - Amends existing law to provide that no portion of any water
right shall be lost or forfeited for nonuse if the nonuse results from
water rights being used for mitigation purposes approved by the director of
the Department of Water Resources, including as a condition of approval for
a new water right appropriation, a water right transfer, a water exchange
or a mitigation plan.
02/10 House intro - 1st rdg - to printing
02/11 Rpt prt - to Res/Con
02/24 Rpt out - rec d/p - to 2nd rdg
02/25 2nd rdg - to 3rd rdg
02/27 3rd rdg - PASSED - 63-0-7
AYES -- Andersen, Barraclough, Barrett, Bauer, Bayer, Bedke, Bell,
Black, Block, Bolz, Bradford, Campbell, Cannon, Clark, Collins,
Cuddy, Deal, Denney, Douglas, Eberle, Edmunson, Ellsworth, Eskridge,
Field(18), Field(23), Garrett, Harwood, Henbest, Jaquet, Kellogg,
Kulczyk, Lake, Langford, Langhorst, Martinez, McGeachin, McKague,
Meyer, Miller, Mitchell, Moyle, Naccarato, Nielsen, Pasley-Stuart,
Raybould, Ridinger, Ring, Ringo, Roberts, Robison, Rydalch, Sayler,
Shepherd, Shirley, Skippen, Smith(30), Smith(24), Smylie, Snodgrass,
Stevenson, Trail, Wills, Wood
NAYS -- None
Absent and excused -- Boe, Crow, Gagner, Jones, Sali, Schaefer, Mr.
Speaker
Floor Sponsor - Field(23)
Title apvd - to Senate
03/01 Senate intro - 1st rdg - to Res/Env
03/04 Rpt out - rec d/p - to 2nd rdg
03/05 2nd rdg - to 3rd rdg
03/16 3rd rdg - PASSED - 35-0-0
AYES -- Andreason, Bailey, Brandt, Bunderson, Burkett, Burtenshaw,
Calabretta, Cameron, Compton, Darrington, Davis, Gannon, Geddes,
Goedde, Hill, Ingram, 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 - Stennett
Title apvd - to House
03/17 To enrol
03/18 Rpt enrol - Sp signed
03/19 Pres signed - To Governor
03/23 Governor signed
Session Law Chapter 178
Effective: 07/01/04
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-seventh Legislature Second Regular Session - 2004
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 633
BY RESOURCES AND CONSERVATION COMMITTEE
1 AN ACT
2 RELATING TO FORFEITURE OF WATER RIGHTS; AMENDING SECTION 42-223, IDAHO CODE,
3 TO PROVIDE THAT NO PORTION OF ANY WATER RIGHT SHALL BE LOST OR FORFEITED
4 FOR NONUSE IF THE NONUSE RESULTS FROM THE WATER RIGHT BEING USED FOR MITI-
5 GATION PURPOSES APPROVED BY THE DIRECTOR OF THE DEPARTMENT OF WATER
6 RESOURCES INCLUDING AS A CONDITION OF APPROVAL FOR A NEW WATER RIGHT
7 APPROPRIATION, A WATER RIGHT TRANSFER, A WATER EXCHANGE OR A MITIGATION
8 PLAN.
9 Be It Enacted by the Legislature of the State of Idaho:
10 SECTION 1. That Section 42-223, Idaho Code, be, and the same is hereby
11 amended to read as follows:
12 42-223. EXCEPTIONS OR DEFENSES TO FORFEITURE. A right to the use of water
13 shall not be lost by forfeiture pursuant to the provisions of section 42-222,
14 Idaho Code, for a failure to apply the water to beneficial use under the con-
15 ditions specified in any subsection of this section. The legislature does not
16 intend through enactment of this section to diminish or impair any statutory
17 or common law exception or defense to forfeiture existing on the date of
18 enactment or amendment of this section, or to preclude judicial or administra-
19 tive recognition of other exceptions or defenses to forfeiture recognized in
20 Idaho case law or other provisions of the Idaho Code. No provision of this
21 section shall be construed to imply that the legislature does not recognize
22 the existence or validity of any common law exception or defense to forfeiture
23 existing on the date of enactment or amendment of this section.
24 (1) A water right appurtenant to land contracted in a federal cropland
25 set-aside program shall not be lost or forfeited for nonuse during the con-
26 tracted period. The running of any five (5) year period of nonuse for forfei-
27 ture of a water right shall be tolled during the time that the land remains in
28 the cropland set-aside program.
29 (2) A water right held by a municipal provider to meet reasonably antici-
30 pated future needs shall be deemed to constitute beneficial use, and such
31 rights shall not be lost or forfeited for nonuse unless the planning horizon
32 specified in the license has expired and the quantity of water authorized for
33 use under the license is no longer needed to meet reasonably anticipated
34 future needs.
35 (3) A water right shall not be lost or forfeited by a failure to divert
36 and apply the water to beneficial use if the water is not needed to maintain
37 full beneficial use under the right because of land application of waste for
38 disposal purposes including, but not limited to, discharge from dairy lagoons
39 used in combination with or substituted for water diverted under the water
40 right.
41 (4) A water right shall not be lost or forfeited by a failure to divert
42 and apply the water to beneficial use if the reason for the nonuse of the
43 water is to comply with the provisions of a ground water management plan
2
1 approved by the director of the department of water resources pursuant to sec-
2 tion 42-233a or 42-233b, Idaho Code.
3 (5) A water right shall not be lost or forfeited by a failure of the
4 owner of the right to divert and apply the water to beneficial use while the
5 water right is placed in the water supply bank or is retained in or rented
6 from the water supply bank pursuant to sections 42-1761 through 42-1765A,
7 Idaho Code, or while the water right is leased pursuant to sections 43-335
8 through 43-342, Idaho Code, or sections 42-2501 through 42-2509, Idaho Code,
9 or while use of the water is made under any other provision of law authorizing
10 the rental or lease of water rights.
11 (6) No portion of any water right shall be lost or forfeited for nonuse
12 if the nonuse results from circumstances over which the water right owner has
13 no control. Whether the water right owner has control over nonuse of water
14 shall be determined on a case-by-case basis.
15 (7) No portion of a water right held by an irrigation district, a Carey
16 Act operating company, or any other company, corporation, association, or
17 entity which holds water rights for distribution to its landowners, share-
18 holders or members shall be lost or forfeited due to nonuse by such landown-
19 ers, shareholders or members, unless the nonuse is subject to the control of
20 such entity.
21 (8) No portion of a water right held by an irrigation district shall be
22 lost, forfeited or subject to forfeiture as a result of the exclusion of land
23 from the district pursuant to chapter 11, title 43, Idaho Code, so long as any
24 five (5) year period of nonuse following the exclusion does not result from
25 circumstances over which the district has control.
26 (9) No portion of any water right shall be lost or forfeited for nonuse
27 if the nonuse results from a water conservation practice, which maintains the
28 full beneficial use authorized by the water right, as defined in section
29 42-250, Idaho Code.
30 (10) No portion of any water right shall be lost or forfeited for nonuse
31 if the nonuse results from the water right being used for mitigation purposes
32 approved by the director of the department of water resources including as a
33 condition of approval for a new water right appropriation approved pursuant to
34 section 42-203A, Idaho Code, a water right transfer approved pursuant to sec-
35 tion 42-222, Idaho Code, a water exchange approved pursuant to section 42-240,
36 Idaho Code, or a mitigation plan approved in accordance with rules promulgated
37 pursuant to section 42-603, Idaho Code.
STATEMENT OF PURPOSE
RS 13473c1
The purpose of this legislation is to provide assurance that a
water right is not subject to forfeiture for non-use if it is being
used as approved by the Director of the Department of Water
Resources to mitigate for the effects of using water under a
portion of the same or another water right.
FISCAL IMPACT
Enactment of this legislation will have no effect upon the state's
General Fund or other state or local funds.
CONTACT
Name: Karl J. Dreher
Agency: Water Resources
Phone: (208) 327-7910
Statement of Purpose/Fiscal Impact H 633