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H0636aa.......................................by RESOURCES AND CONSERVATION WATER RIGHTS - Amends existing law to further define "consumptive use." 02/10 House intro - 1st rdg - to printing 02/11 Rpt prt - to Res/Con 02/26 Rpt out - to Gen Ord Rpt out amen - to engros 02/27 Rpt engros - 1st rdg - to 2nd rdg as amen 03/01 2nd rdg - to 3rd rdg as amen 03/04 3rd rdg as amen - PASSED - 62-0-8 AYES -- Andersen, Barraclough, Barrett, Bayer, Bedke, Bell, Block, Boe, Bolz, Campbell, Cannon, Clark, Collins, Crow, Cuddy, Deal, Denney, Douglas, Eberle, Edmunson, Ellsworth, Eskridge, Field(18), Field(23), Garrett, Harwood, Henbest, Jaquet, Jones, Kellogg, Kulczyk, Langford, Langhorst, Martinez, McGeachin, McKague, Meyer, Miller, Mitchell, Moyle, Naccarato, Pasley-Stuart, Raybould, Ridinger, Ring, Ringo, Roberts, Robison, Rydalch, Sali, Sayler, Schaefer, Shepherd, Skippen, Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Trail(Bennett), Wood, Mr. Speaker NAYS -- None Absent and excused -- Bauer, Black, Bradford, Gagner, Lake, Nielsen, Shirley, Wills Floor Sponsor - Wood Title apvd - to Senate 03/05 Senate intro - 1st rdg - to Res/Env 03/15 Rpt out - rec d/p - to 2nd rdg 03/16 2nd rdg - to 3rd rdg 03/19 3rd rdg - PASSED - 35-0-0 AYES -- Andreason, Bailey, Brandt, Bunderson, Burkett(Maxand), 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 - Noh Title apvd - to House 03/20 To enrol - Rpt enrol - Sp signed - Pres signed 03/22 To Governor 03/23 Governor signed Session Law Chapter 258 Effective: 07/01/04
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-seventh Legislature Second Regular Session - 2004IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 636 BY RESOURCES AND CONSERVATION COMMITTEE 1 AN ACT 2 RELATING TO WATER RIGHTS; AMENDING SECTION 42-202B, IDAHO CODE, TO FURTHER 3 DEFINE "CONSUMPTIVE USE"; AND AMENDING SECTION 42-222, IDAHO CODE, TO 4 CLARIFY THAT CONSUMPTIVE USE DOES NOT AFFECT OR LIMIT A PROPOSED WATER 5 RIGHT. 6 Be It Enacted by the Legislature of the State of Idaho: 7 SECTION 1. That Section 42-202B, Idaho Code, be, and the same is hereby 8 amended to read as follows: 9 42-202B. DEFINITIONS. Whenever used in this title, the term: 10 (1) "Consumptive use" means that portion of the annual volume of water 11 diverted under a water right that is transpired by growing vegetation, evapo- 12 rated from soils, converted to nonrecoverable water vapor, incorporated into 13 products, or otherwise does not return to the waters of the state. Consumptive 14 use is not an element of a water right. Consumptive use does not include any 15 water that falls as precipitation directly on the place of use.unless the16precipitation is captured, controlled and used under an appurtenant water17rightPrecipitation shall not be considered to reduce the consumptive use of a 18 water right. "Authorized consumptive use" means the maximum consumptive use 19 that may be made of a water right. If the use of a water right is for irriga- 20 tion, for example, the authorized consumptive use reflects irrigation of the 21 most consumptive vegetation that may be grown at the place of use. Changes in 22 consumptive use do not require a transfer pursuant to section 42-222, Idaho 23 Code. 24 (2) "Digital boundary" means the boundary encompassing and defining an 25 area consisting of or incorporating the place of use or permissible place of 26 use for a water right prepared and maintained by the department of water 27 resources using a geographic information system in conformance with the 28 national standard for spatial data accuracy or succeeding standard. 29 (3) "Local public interest" is defined as the interests that the people 30 in the area directly affected by a proposed water use have in the effects of 31 such use on the public water resource. 32 (4) "Municipality" means a city incorporated under section 50-102, Idaho 33 Code, a county, or the state of Idaho acting through a department or institu- 34 tion. 35 (5) "Municipal provider" means: 36 (a) A municipality that provides water for municipal purposes to its res- 37 idents and other users within its service area; 38 (b) Any corporation or association holding a franchise to supply water 39 for municipal purposes, or a political subdivision of the state of Idaho 40 authorized to supply water for municipal purposes, and which does supply 41 water, for municipal purposes to users within its service area; or 42 (c) A corporation or association which supplies water for municipal pur- 43 poses through a water system regulated by the state of Idaho as a "public 2 1 water supply" as described in section 39-103(10), Idaho Code. 2 (6) "Municipal purposes" refers to water for residential, commercial, 3 industrial, irrigation of parks and open space, and related purposes, exclud- 4 ing use of water from geothermal sources for heating, which a municipal pro- 5 vider is entitled or obligated to supply to all those users within a service 6 area, including those located outside the boundaries of a municipality served 7 by a municipal provider. 8 (7) "Planning horizon" refers to the length of time that the department 9 determines is reasonable for a municipal provider to hold water rights to meet 10 reasonably anticipated future needs. The length of the planning horizon may 11 vary according to the needs of the particular municipal provider. 12 (8) "Reasonably anticipated future needs" refers to future uses of water 13 by a municipal provider for municipal purposes within a service area which, on 14 the basis of population and other planning data, are reasonably expected to be 15 required within the planning horizon of each municipality within the service 16 area not inconsistent with comprehensive land use plans approved by each 17 municipality. Reasonably anticipated future needs shall not include uses of 18 water within areas overlapped by conflicting comprehensive land use plans. 19 (9) "Service area" means that area within which a municipal provider is 20 or becomes entitled or obligated to provide water for municipal purposes. For 21 a municipality, the service area shall correspond to its corporate limits, or 22 other recognized boundaries, including changes therein after the permit or 23 license is issued. The service area for a municipality may also include areas 24 outside its corporate limits, or other recognized boundaries, that are within 25 the municipality's established planning area if the constructed delivery sys- 26 tem for the area shares a common water distribution system with lands located 27 within the corporate limits. For a municipal provider that is not a municipal- 28 ity, the service area shall correspond to the area that it is authorized or 29 obligated to serve, including changes therein after the permit or license is 30 issued. 31 SECTION 2. That Section 42-222, Idaho Code, be, and the same is hereby 32 amended to read as follows: 33 42-222. CHANGE IN POINT OF DIVERSION, PLACE OF USE, PERIOD OF USE, OR 34 NATURE OF USE OF WATER UNDER ESTABLISHED RIGHTS -- FORFEITURE AND EXTENSION -- 35 APPEALS. (1) Any person, entitled to the use of water whether represented by 36 license issued by the department of water resources, by claims to water rights 37 by reason of diversion and application to a beneficial use as filed under the 38 provisions of this chapter, or by decree of the court, who shall desire to 39 change the point of diversion, place of use, period of use or nature of use of 40 all or part of the water, under the right shall first make application to the 41 department of water resources for approval of such change. Such application 42 shall be upon forms furnished by the department and shall describe the right 43 licensed, claimed or decreed which is to be changed and the changes which are 44 proposed, and shall be accompanied by the statutory filing fee as in this 45 chapter provided. Upon receipt of such application it shall be the duty of the 46 director of the department of water resources to examine same, obtain any con- 47 sent required in section 42-108, Idaho Code, and if otherwise proper to pro- 48 vide notice of the proposed change in the same manner as applications under 49 section 42-203A, Idaho Code. Such notice shall advise that anyone who desires 50 to protest the proposed change shall file notice of protests with the depart- 51 ment within ten (10) days of the last date of publication. Upon the receipt of 52 any protest, accompanied by the statutory filing fee as provided in section 53 42-221, Idaho Code, it shall be the duty of the director of the department of 3 1 water resources to investigate the same and to conduct a hearing thereon. He 2 shall also advise the watermaster of the district in which such water is used 3 of the proposed change and the watermaster shall notify the director of the 4 department of water resources of his recommendation on the application, and 5 the director of the department of water resources shall not finally determine 6 the action on the application for change until he has received from such 7 watermaster his recommendation thereof, which action of the watermaster shall 8 be received and considered as other evidence. 9 When the nature of use of the water right is to be changed to municipal 10 purposes and some or all of the right will be held by a municipal provider to 11 serve reasonably anticipated future needs, the municipal provider shall pro- 12 vide to the department sufficient information and documentation to establish 13 that the applicant qualifies as a municipal provider and that the reasonably 14 anticipated future needs, the service area and the planning horizon are con- 15 sistent with the definitions and requirements specified in this chapter. The 16 service area need not be described by legal description nor by description of 17 every intended use in detail, but the area must be described with sufficient 18 information to identify the general location where the water under the water 19 right is to be used and the types and quantity of uses that generally will be 20 made. 21 When a water right or a portion thereof to be changed is held by a munici- 22 pal provider for municipal purposes, as defined in section 42-202B, Idaho 23 Code, that portion of the right held for reasonably anticipated future needs 24 at the time of the change shall not be changed to a place of use outside the 25 service area, as defined in section 42-202B, Idaho Code, or to a new nature of 26 use. 27 The director of the department of water resources shall examine all the 28 evidence and available information and shall approve the change in whole, or 29 in part, or upon conditions, provided no other water rights are injured 30 thereby, the change does not constitute an enlargement in use of the original 31 right, the change is consistent with the conservation of water resources 32 within the state of Idaho and is in the local public interest as defined in 33 section 42-202B, Idaho Code, the change will not adversely affect the local 34 economy of the watershed or local area within which the source of water for 35 the proposed use originates, in the case where the place of use is outside of 36 the watershed or local area where the source of water originates, and the new 37 use is a beneficial use, which in the case of a municipal provider shall be 38 satisfied if the water right is necessary to serve reasonably anticipated 39 future needs as provided in this chapter. The director may consider authorized 40 consumptive use, as defined in section 42-202B, Idaho Code, as a factor in 41 determining whether a proposed change would constitute an enlargement in use 42 of the original water right. Actual or historic consumptive use of a water 43 right shall not be considered to limit or otherwise affect a change in an ele- 44 ment of a water right proposed under this section. The director shall not 45 approve a change in the nature of use from agricultural use where such change 46 would significantly affect the agricultural base of the local area. The trans- 47 fer of the right to the use of stored water for irrigation purposes shall not 48 constitute an enlargement in use of the original right even though more acres 49 may be irrigated, if no other water rights are injured thereby. A copy of the 50 approved application for change shall be returned to the applicant and he 51 shall be authorized upon receipt thereof to make the change and the original 52 water right shall be presumed to have been amended by reason of such autho- 53 rized change. In the event the director of the department of water resources 54 determines that a proposed change shall not be approved as provided in this 55 section, he shall deny the same and forward notice of such action to the 4 1 applicant by certified mail, which decision shall be subject to judicial 2 review as hereafter set forth. Provided however, minimum stream flow water 3 rights may not be established under the local public interest criterion, and 4 may only be established pursuant to chapter 15, title 42, Idaho Code. 5 (2) All rights to the use of water acquired under this chapter or other- 6 wise shall be lost and forfeited by a failure for the term of five (5) years 7 to apply it to the beneficial use for which it was appropriated and when any 8 right to the use of water shall be lost through nonuse or forfeiture such 9 rights to such water shall revert to the state and be again subject to appro- 10 priation under this chapter; except that any right to the use of water shall 11 not be lost through forfeiture by the failure to apply the water to beneficial 12 use under certain circumstances as specified in section 42-223, Idaho Code. 13 (3) Upon proper showing before the director of the department of water 14 resources of good and sufficient reason for nonapplication to beneficial use 15 of such water for such term of five (5) years, the director of the department 16 of water resources is hereby authorized to grant an extension of time extend- 17 ing the time for forfeiture of title for nonuse thereof, to such waters for a 18 period of not to exceed five (5) additional years. 19 (4) Application for an extension shall be made before the end of the five 20 (5) year period upon forms to be furnished by the department of water 21 resources and shall fully describe the right on which an extension of time to 22 resume the use is requested and the reasons for such nonuse and shall be 23 accompanied by the statutory filing fee; provided that water rights protected 24 from forfeiture under the provisions of section 42-223, Idaho Code, are exempt 25 from this requirement. 26 (a) Upon the receipt of such application it shall be the duty of the 27 director of the department of water resources to examine the same and to 28 provide notice of the application for an extension in the same manner as 29 applications under section 42-203A, Idaho Code. The notice shall fully 30 describe the right, the extension which is requested and the reason for 31 such nonuse and shall state that any person desiring to object to the 32 requested extension may submit a protest, accompanied by the statutory 33 filing fee as provided in section 42-221, Idaho Code, to the director of 34 the department of water resources within ten (10) days of the last date of 35 publication. 36 (b) Upon receipt of a protest it shall be the duty of the director of the 37 department of water resources to investigate and conduct a hearing thereon 38 as in this chapter provided. 39 (c) The director of the department of water resources shall find from the 40 evidence presented in any hearing, or from information available to the 41 department, the reasons for such nonuse of water and where it appears to 42 the satisfaction of the director of the department of water resources that 43 other rights will not be impaired by granting an extension of time within 44 which to resume the use of the water and good cause appearing for such 45 nonuse, he may grant one (1) extension of five (5) years within which to 46 resume such use. 47 (d) In his approval of the application for an extension of time under 48 this section the director of the department of water resources shall set 49 the date when the use of water is to be resumed. Sixty (60) days before 50 such date the director of the department of water resources shall forward 51 to the applicant at his address of record a notice by certified mail set- 52 ting forth the date on which the use of water is to be resumed and a form 53 for reporting the resumption of the use of the water right. If the use of 54 the water has not been resumed and report thereon made on or before the 55 date set for resumption of use such right shall revert to the state and 5 1 again be subject to appropriation, as provided in this section. 2 (e) In the event the director of the department of water resources deter- 3 mines that a proposed extension of time within which to resume use of a 4 water right shall not be approved as provided in this section, he shall 5 deny same and forward notice of such action to the applicant by certified 6 mail, which decision shall be subject to judicial review as hereafter pro- 7 vided. 8 (5) Any person or persons feeling themselves aggrieved by the determina- 9 tion of the department of water resources in approving or rejecting an appli- 10 cation to change the point of diversion, place, period of use or nature of use 11 of water under an established right or an application for an extension of time 12 within which to resume the use of water as provided in this section, may, if a 13 protest was filed and a hearing held thereon, seek judicial review pursuant to 14 section 42-1701A(4), Idaho Code. If no protest was filed and no hearing held, 15 the applicant may request a hearing pursuant to section 42-1701A(3), Idaho 16 Code, for the purpose of contesting the action of the director and may seek 17 judicial review of the final order of the director following the hearing pur- 18 suant to section 42-1701A(4), Idaho Code.
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-seventh Legislature Second Regular Session - 2004Moved by Wood Seconded by Field (23) IN THE HOUSE OF REPRESENTATIVES HOUSE AMENDMENT TO H.B. NO. 636 1 AMENDMENT TO THE BILL 2 On page 2 of the printed bill, delete lines 31 through 53; and delete 3 pages 3, 4 and 5. 4 CORRECTION TO TITLE 5 On page 1, in line 3, following ""CONSUMPTIVE", delete the remainder of 6 the line, delete lines 4 and 5, and insert: "USE."".
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-seventh Legislature Second Regular Session - 2004IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 636, As Amended BY RESOURCES AND CONSERVATION COMMITTEE 1 AN ACT 2 RELATING TO WATER RIGHTS; AMENDING SECTION 42-202B, IDAHO CODE, TO FURTHER 3 DEFINE "CONSUMPTIVE USE." 4 Be It Enacted by the Legislature of the State of Idaho: 5 SECTION 1. That Section 42-202B, Idaho Code, be, and the same is hereby 6 amended to read as follows: 7 42-202B. DEFINITIONS. Whenever used in this title, the term: 8 (1) "Consumptive use" means that portion of the annual volume of water 9 diverted under a water right that is transpired by growing vegetation, evapo- 10 rated from soils, converted to nonrecoverable water vapor, incorporated into 11 products, or otherwise does not return to the waters of the state. Consumptive 12 use is not an element of a water right. Consumptive use does not include any 13 water that falls as precipitation directly on the place of use.unless the14precipitation is captured, controlled and used under an appurtenant water15rightPrecipitation shall not be considered to reduce the consumptive use of a 16 water right. "Authorized consumptive use" means the maximum consumptive use 17 that may be made of a water right. If the use of a water right is for irriga- 18 tion, for example, the authorized consumptive use reflects irrigation of the 19 most consumptive vegetation that may be grown at the place of use. Changes in 20 consumptive use do not require a transfer pursuant to section 42-222, Idaho 21 Code. 22 (2) "Digital boundary" means the boundary encompassing and defining an 23 area consisting of or incorporating the place of use or permissible place of 24 use for a water right prepared and maintained by the department of water 25 resources using a geographic information system in conformance with the 26 national standard for spatial data accuracy or succeeding standard. 27 (3) "Local public interest" is defined as the interests that the people 28 in the area directly affected by a proposed water use have in the effects of 29 such use on the public water resource. 30 (4) "Municipality" means a city incorporated under section 50-102, Idaho 31 Code, a county, or the state of Idaho acting through a department or institu- 32 tion. 33 (5) "Municipal provider" means: 34 (a) A municipality that provides water for municipal purposes to its res- 35 idents and other users within its service area; 36 (b) Any corporation or association holding a franchise to supply water 37 for municipal purposes, or a political subdivision of the state of Idaho 38 authorized to supply water for municipal purposes, and which does supply 39 water, for municipal purposes to users within its service area; or 40 (c) A corporation or association which supplies water for municipal pur- 41 poses through a water system regulated by the state of Idaho as a "public 42 water supply" as described in section 39-103(10), Idaho Code. 43 (6) "Municipal purposes" refers to water for residential, commercial, 2 1 industrial, irrigation of parks and open space, and related purposes, exclud- 2 ing use of water from geothermal sources for heating, which a municipal pro- 3 vider is entitled or obligated to supply to all those users within a service 4 area, including those located outside the boundaries of a municipality served 5 by a municipal provider. 6 (7) "Planning horizon" refers to the length of time that the department 7 determines is reasonable for a municipal provider to hold water rights to meet 8 reasonably anticipated future needs. The length of the planning horizon may 9 vary according to the needs of the particular municipal provider. 10 (8) "Reasonably anticipated future needs" refers to future uses of water 11 by a municipal provider for municipal purposes within a service area which, on 12 the basis of population and other planning data, are reasonably expected to be 13 required within the planning horizon of each municipality within the service 14 area not inconsistent with comprehensive land use plans approved by each 15 municipality. Reasonably anticipated future needs shall not include uses of 16 water within areas overlapped by conflicting comprehensive land use plans. 17 (9) "Service area" means that area within which a municipal provider is 18 or becomes entitled or obligated to provide water for municipal purposes. For 19 a municipality, the service area shall correspond to its corporate limits, or 20 other recognized boundaries, including changes therein after the permit or 21 license is issued. The service area for a municipality may also include areas 22 outside its corporate limits, or other recognized boundaries, that are within 23 the municipality's established planning area if the constructed delivery sys- 24 tem for the area shares a common water distribution system with lands located 25 within the corporate limits. For a municipal provider that is not a municipal- 26 ity, the service area shall correspond to the area that it is authorized or 27 obligated to serve, including changes therein after the permit or license is 28 issued.
STATEMENT OF PURPOSE RS 13893 This legislation secures the right to make full beneficial use of water rights by clarifying the meaning and role of "consumptive use." By defining authorized consumptive use, this legislation makes it clear that a water right entitles the owner to make any use authorized by the right, without applying for approval of a transfer pursuant to Idaho Code section 42-222. The owner of an irrigation right, for example, may grow any crop or vegetation at the authorized place of use, and may change from less water-consumptive crops to more consumptive crops without obtaining approval from the Idaho Department of Water Resources (IDWR). This legislation further secures the right to make full beneficial use by making it clear that, when a water right owner seeks to change an element of the right (e.g. point of diversion, place of use or nature of use), the consumptive use authorized by the right is retained. Currently, the IDWR attempts to limit water use after certain transfers to "historic consumptive use." This requirement imposes upon the transfer applicant the nearly impossible burden of attempting to identify the crops that have been grown since the water right was perfected, which is often over the last 100 to 140 years. This requirement compounds the time and effort IDWR staff must expend in evaluating such information to determine whether the requirement is satisfied. The clarification provided by this legislation will save many transfer applicants, and IDWR, this unnecessary expenditure of time and money. FISCAL IMPACT This legislation will have a positive fiscal impact on the state and its citizens as a result of the savings of time and money discussed above. Contact Name: Norm Semanko, Idaho Water Users Association Phone: (208) 344-6690 STATEMENT OF PURPOSE/FISCAL NOTE H 636