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H0745aaS..................................................by WAYS AND MEANS
WATER - Amends existing law relating to the diversion and conveyance of
water to govern ownership of water while it is diverted; to further define
stream channels; and to clarify the right to clean a drain.
02/20 House intro - 1st rdg - to printing
02/23 Rpt prt - to Res/Con
03/02 Rpt out - rec d/p - to 2nd rdg
03/03 2nd rdg - to 3rd rdg
03/05 3rd rdg - PASSED - 56-14-0
AYES -- Andersen, Barraclough, Barrett, Bauer, Bayer, Bedke, Bell,
Black, Block, Bolz, Bradford, Campbell, Cannon, Clark, Collins, Crow,
Cuddy, Deal, Denney, Douglas, 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, Wills,
Wood, Mr. Speaker
NAYS -- Boe, Henbest, Jaquet, Jones, Langhorst, Martinez, Mitchell,
Naccarato, Pasley-Stuart, Ringo, Robison, Sayler, Smith(30),
Trail(Bennett)
Absent and excused -- None
Floor Sponsor - Raybould
Title apvd - to Senate
03/08 Senate intro - 1st rdg - to Res/Env
03/16 Rpt out - to 14th Ord
03/17 Rpt out amen - to 1st rdg as amen
03/18 1st rdg - to 2nd rdg as amen
Rls susp - PASSED - 27-7-1
AYES -- Andreason, Bailey, Brandt, Bunderson, Burtenshaw, Calabretta,
Cameron, Compton, Darrington, Davis, Gannon, Geddes, Goedde, Hill,
Ingram, Keough, Little, Lodge, McKenzie, McWilliams, Noh, Pearce,
Richardson, Sorensen, Stegner, Sweet, Williams
NAYS -- Burkett, Kennedy, Malepeai, Marley, Schroeder, Stennett, Werk
Absent and excused -- Noble
Floor Sponsors - Noh & Cameron
Title apvd - to House
03/19 House concurred in Senate amens - to engros
Rpt engros - 1st rdg - to 2nd rdg as amen
03/20 2nd rdg - to 3rd rdg as amen
Rls susp - PASSED - 55-6-9
AYES -- Andersen, Barraclough, Barrett, Bayer, Bedke, Bell, Black,
Block, Boe, Bolz, Bradford, Campbell, Cannon, Collins, Crow, Cuddy,
Deal, Denney, Douglas, Edmunson, Ellsworth, Eskridge, Field(18),
Field(23), Gagner, Garrett, Kellogg, Lake, Langford, Martinez,
McGeachin, McKague, Meyer, Miller, Mitchell, Moyle, Naccarato,
Nielsen, Raybould, Ring, Robison, Rydalch, Sali, Sayler, Schaefer,
Shepherd, Shirley, Skippen, Smith(30), Smylie, Snodgrass, Stevenson,
Wills, Wood, Mr. Speaker
NAYS -- Henbest, Jaquet, Jones, Langhorst, Pasley-Stuart, Ringo
Absent and excused -- Bauer, Clark, Eberle, Harwood, Kulczyk,
Ridinger, Roberts, Smith(24), Trail
Floor Sponsor - Raybould
Title apvd - To enrol - Rpt enrol - Sp signed
03/20 Pres signed
03/22 To Governor
03/23 Governor signed
Session Law Chapter 191
Effective: 03/23/04
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-seventh Legislature Second Regular Session - 2004
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 745
BY WAYS AND MEANS COMMITTEE
1 AN ACT
2 RELATING TO THE DIVERSION AND CONVEYANCE OF WATER; AMENDING SECTION 36-1601,
3 IDAHO CODE, TO FURTHER DEFINE NAVIGABLE STREAMS; AMENDING SECTION 42-110,
4 IDAHO CODE, TO GOVERN OWNERSHIP OF WATER WHILE IT IS DIVERTED; AMENDING
5 SECTION 42-3802, IDAHO CODE, TO FURTHER DEFINE STREAM CHANNEL; AMENDING
6 SECTION 42-3806, IDAHO CODE, TO CLARIFY THE RIGHT TO CLEAN A DRAIN; AND
7 DECLARING AN EMERGENCY.
8 Be It Enacted by the Legislature of the State of Idaho:
9 SECTION 1. That Section 36-1601, Idaho Code, be, and the same is hereby
10 amended to read as follows:
11 36-1601. PUBLIC WATERS -- HIGHWAYS FOR RECREATION. (a) Navigable Streams
12 Defined. Any stream which, in its natural state, during normal high water,
13 will float cut timber having a diameter in excess of six (6) inches or any
14 other commercial or floatable commodity or is capable of being navigated by
15 oar or motor propelled small craft for pleasure or commercial purposes is nav-
16 igable. Ditches, canals, laterals and drains that are constructed and used for
17 irrigation or drainage purposes are not navigable streams.
18 (b) Recreational Use Authorized. Navigable rivers, sloughs or streams
19 within the meander lines or, when not meandered, between the flow lines of
20 ordinary high water thereof, and all rivers, sloughs and streams flowing
21 through any public lands of the state shall be open to public use as a public
22 highway for travel and passage, up or downstream, for business or pleasure,
23 and to exercise the incidents of navigation -- boating, swimming, fishing,
24 hunting and all recreational purposes.
25 (c) Access Limited to Navigable Stream. Nothing herein contained shall
26 authorize the entering on or crossing over private land at any point other
27 than within the high water lines of navigable streams except that where irri-
28 gation dams or other obstructions interfere with the navigability of a stream,
29 members of the public may remove themselves and their boats, floats, canoes or
30 other floating crafts from the stream and walk or portage such crafts around
31 said obstruction re-entering the stream immediately below such obstruction at
32 the nearest point where it is safe to do so.
33 SECTION 2. That Section 42-110, Idaho Code, be, and the same is hereby
34 amended to read as follows:
35 42-110. RIGHT OF DITCH OWNERS TO DIVERT WATER. The proprietors of any
36 ditch, canal or conduit, or other works for the diversion and carriage of
37 water, whose right relative to the quantity of water they shall be entitled to
38 divert by means of such works shall have been established by any valid claim,
39 permit, license or decree of court, shall be entitled to such quantity mea-
40 sured at the point of diversion, subject, however, to all prior rights. Water
41 diverted from its source pursuant to a water right is the property of the
2
1 appropriator while it is lawfully diverted, captured, conveyed, used, or
2 otherwise physically controlled by the appropriator.
3 SECTION 3. That Section 42-3802, Idaho Code, be, and the same is hereby
4 amended to read as follows:
5 42-3802. DEFINITIONS. Whenever used in this act, the term:
6 (a) "Person" means any individual, partnership, company, corporation,
7 municipality, county, state or federal agency, or other entity proposing to
8 alter a stream channel.
9 (b) "Alter" means to obstruct, diminish, destroy, alter, modify, relo-
10 cate, or change the natural existing shape or direction of water flow of any
11 stream channel within or below the mean high watermark thereof.
12 (c) "Board" means the Idaho water resource board.
13 (d) "Stream channel" means a natural watercourse of perceptible extent,
14 with definite bed and banks, which confines and conducts continuously flowing
15 water. Ditches, canals, laterals and drains that are constructed and used for
16 irrigation or drainage purposes are not stream channels.
17 (e) "Department" means the Idaho department of water resources.
18 (f) "Director" means the director of the Idaho department of water
19 resources.
20 (g) "Plans" means maps, sketches, engineering drawings, word descriptions
21 and specifications sufficient to describe the extent, nature and location of
22 the proposed stream channel alteration and the proposed method of accomplish-
23 ing same.
24 (h) "Mean high watermark" means a water level corresponding to the natu-
25 ral or ordinary high watermark and is the line which the water impresses on
26 the soil by covering it for sufficient periods of time to deprive the soil of
27 its terrestrial vegetation and destroy its value for commonly accepted agri-
28 cultural purposes.
29 SECTION 4. That Section 42-3806, Idaho Code, be, and the same is hereby
30 amended to read as follows:
31 42-3806. EXISTING RIGHTS UNAFFECTED -- WHERE PERMIT NOT REQUIRED. This
32 act shall not operate or be so construed as to impair, diminish, control or
33 divest any existing or vested water rights acquired under the laws of the
34 state of Idaho or the United States, nor to interfere with the diversion of
35 water from streams under existing or vested water right or water right permit
36 for irrigation, domestic, commercial or other uses as recognized and provided
37 for by Idaho water laws.
38 No permit shall be required from a water user or his agent to clean, main-
39 tain, construct in, or repair any stream channel, diversion structure, canal,
40 ditch, drain or lateral. No permit shall be required from a water user or his
41 agent to remove any obstruction from any stream channel, if such obstruction
42 interferes with, or is likely to interfere with, the delivery of, or use of,
43 water under any existing or vested water right, or water right permit.
44 SECTION 5. An emergency existing therefor, which emergency is hereby
45 declared to exist, this act shall be in full force and effect on and after its
46 passage and approval.
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-seventh Legislature Second Regular Session - 2004
Moved by Noh
Seconded by Cameron
IN THE SENATE
SENATE AMENDMENT TO H.B. NO. 745
1 AMENDMENT TO THE BILL
2 On page 1 of the printed bill, delete lines 9 through 32; and renumber
3 subsequent sections of the bill accordingly.
4 CORRECTION TO TITLE
5 On page 1, in line 2, delete "AMENDING SECTION 36-1601,"; and in line 3,
6 delete "IDAHO CODE, TO FURTHER DEFINE NAVIGABLE STREAMS;".
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-seventh Legislature Second Regular Session - 2004
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 745, As Amended in the Senate
BY WAYS AND MEANS COMMITTEE
1 AN ACT
2 RELATING TO THE DIVERSION AND CONVEYANCE OF WATER; AMENDING SECTION 42-110,
3 IDAHO CODE, TO GOVERN OWNERSHIP OF WATER WHILE IT IS DIVERTED; AMENDING
4 SECTION 42-3802, IDAHO CODE, TO FURTHER DEFINE STREAM CHANNEL; AMENDING
5 SECTION 42-3806, IDAHO CODE, TO CLARIFY THE RIGHT TO CLEAN A DRAIN; AND
6 DECLARING AN EMERGENCY.
7 Be It Enacted by the Legislature of the State of Idaho:
8 SECTION 1. That Section 42-110, Idaho Code, be, and the same is hereby
9 amended to read as follows:
10 42-110. RIGHT OF DITCH OWNERS TO DIVERT WATER. The proprietors of any
11 ditch, canal or conduit, or other works for the diversion and carriage of
12 water, whose right relative to the quantity of water they shall be entitled to
13 divert by means of such works shall have been established by any valid claim,
14 permit, license or decree of court, shall be entitled to such quantity mea-
15 sured at the point of diversion, subject, however, to all prior rights. Water
16 diverted from its source pursuant to a water right is the property of the
17 appropriator while it is lawfully diverted, captured, conveyed, used, or
18 otherwise physically controlled by the appropriator.
19 SECTION 2. That Section 42-3802, Idaho Code, be, and the same is hereby
20 amended to read as follows:
21 42-3802. DEFINITIONS. Whenever used in this act, the term:
22 (a) "Person" means any individual, partnership, company, corporation,
23 municipality, county, state or federal agency, or other entity proposing to
24 alter a stream channel.
25 (b) "Alter" means to obstruct, diminish, destroy, alter, modify, relo-
26 cate, or change the natural existing shape or direction of water flow of any
27 stream channel within or below the mean high watermark thereof.
28 (c) "Board" means the Idaho water resource board.
29 (d) "Stream channel" means a natural watercourse of perceptible extent,
30 with definite bed and banks, which confines and conducts continuously flowing
31 water. Ditches, canals, laterals and drains that are constructed and used for
32 irrigation or drainage purposes are not stream channels.
33 (e) "Department" means the Idaho department of water resources.
34 (f) "Director" means the director of the Idaho department of water
35 resources.
36 (g) "Plans" means maps, sketches, engineering drawings, word descriptions
37 and specifications sufficient to describe the extent, nature and location of
38 the proposed stream channel alteration and the proposed method of accomplish-
39 ing same.
40 (h) "Mean high watermark" means a water level corresponding to the natu-
41 ral or ordinary high watermark and is the line which the water impresses on
2
1 the soil by covering it for sufficient periods of time to deprive the soil of
2 its terrestrial vegetation and destroy its value for commonly accepted agri-
3 cultural purposes.
4 SECTION 3. That Section 42-3806, Idaho Code, be, and the same is hereby
5 amended to read as follows:
6 42-3806. EXISTING RIGHTS UNAFFECTED -- WHERE PERMIT NOT REQUIRED. This
7 act shall not operate or be so construed as to impair, diminish, control or
8 divest any existing or vested water rights acquired under the laws of the
9 state of Idaho or the United States, nor to interfere with the diversion of
10 water from streams under existing or vested water right or water right permit
11 for irrigation, domestic, commercial or other uses as recognized and provided
12 for by Idaho water laws.
13 No permit shall be required from a water user or his agent to clean, main-
14 tain, construct in, or repair any stream channel, diversion structure, canal,
15 ditch, drain or lateral. No permit shall be required from a water user or his
16 agent to remove any obstruction from any stream channel, if such obstruction
17 interferes with, or is likely to interfere with, the delivery of, or use of,
18 water under any existing or vested water right, or water right permit.
19 SECTION 4. An emergency existing therefor, which emergency is hereby
20 declared to exist, this act shall be in full force and effect on and after its
21 passage and approval.
STATEMENT OF PURPOSE
RS 14161
This legislation helps ensure that irrigation and drainage works
can continue to be operated, maintained, and repaired without
obtaining a state or federal permit. It does so by clarifying
that irrigation and drainage works are not navigable streams, by
codifying long standing case law that diverted water is the
property of the appropriator while under the appropriator's
lawful control, by emphasizing that ditches and drains are not
stream channels, and that drain maintenance does not require a
stream channel alteration permit. The need for this legislation
arises, in part, from recent federal court decisions, and ongoing
discussions among some federal agencies regarding potential
implementation of those decisions.
FISCAL IMPACT
None.
Contact
Name: Norm Semanko, Idaho Water Users Association
Phone: (208) 344-6690
STATEMENT OF PURPOSE/FISCAL NOTE H 745