View Bill Status
View Bill Text
View Amendment
View Engrossed Bill (Original Bill with Amendment(s) Incorporated)
View Statement of Purpose / Fiscal Impact
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 - 2004
IN 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 the
16 precipitation is captured, controlled and used under an appurtenant water
17 right Precipitation 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 - 2004
Moved 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 - 2004
IN 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 the
14 precipitation is captured, controlled and used under an appurtenant water
15 right Precipitation 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