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S1295..........................................by RESOURCES AND ENVIRONMENT
WATER RIGHTS - TRANSFER - Amends existing law to provide that notice of an
application for transfer of a water right shall be made in a manner similar
to that provided for applications under Section 42-203A, Idaho Code; and to
provide discretion to the director of the Department of Water Resources in
giving notice of proposed changes to the point of diversion or the place of
use of a water right that do not impact the hydrologic system or affect the
rights of other water users.
02/09 Senate intro - 1st rdg - to printing
02/10 Rpt prt - to Res/Env
02/17 Rpt out - rec d/p - to 2nd rdg
02/18 2nd rdg - to 3rd rdg
02/24 3rd rdg - PASSED - 25-7-3
AYES -- Andreason, Bailey, Brandt, Burtenshaw, Cameron, Compton,
Darrington, Davis, Gannon, Geddes, Goedde, Ingram, Keough, Little,
Lodge, McKenzie, McWilliams, Noble, Noh, Pearce, Schroeder, Sorensen,
Stegner, Sweet, Williams
NAYS -- Burkett, Calabretta, Kennedy, Malepeai, Marley, Stennett,
Werk
Absent and excused -- Bunderson, Hill, Richardson
Floor Sponsor - Cameron
Title apvd - to House
02/25 House intro - 1st rdg - to Res/Con
03/02 Rpt out - rec d/p - to 2nd rdg
03/03 2nd rdg - to 3rd rdg
03/08 3rd rdg - PASSED - 57-10-3
AYES -- Andersen, Barraclough, Barrett, Bauer, Bayer, Bedke, Bell,
Black, Block, Bolz, Bradford, Campbell, Cannon, Clark, Collins, Crow,
Cuddy, Deal, Denney, Eberle, Edmunson, Ellsworth, Eskridge,
Field(18), Field(23), Gagner, Garrett, Henbest, Jaquet, Jones,
Kellogg, Kulczyk, Lake, Langford, McGeachin, McKague, Meyer, Miller,
Moyle, Nielsen, Raybould, Ridinger, Ring, Roberts, Robison, Rydalch,
Sali, Schaefer, Shirley, Skippen, Smith(24), Smylie, Snodgrass,
Stevenson, Wills, Wood, Mr. Speaker
NAYS -- Boe, Douglas, Langhorst, Martinez, Mitchell, Pasley-Stuart,
Ringo, Sayler, Smith(30), Trail
Absent and excused -- Harwood, Naccarato, Shepherd
Floor Sponsor - Campbell
Title apvd - to Senate
03/09 To enrol
03/10 Rpt enrol - Pres signed
03/11 Sp signed
03/12 To Governor
03/16 Governor signed
Session Law Chapter 62
Effective: 07/01/04
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-seventh Legislature Second Regular Session - 2004
IN THE SENATE
SENATE BILL NO. 1295
BY RESOURCES AND ENVIRONMENT COMMITTEE
1 AN ACT
2 RELATING TO WATER RIGHT TRANSFERS; AMENDING SECTION 42-222, IDAHO CODE, TO
3 PROVIDE THAT NOTICE OF AN APPLICATION FOR TRANSFER OF A WATER RIGHT SHALL
4 BE MADE IN A MANNER SIMILAR TO THAT PROVIDED FOR APPLICATIONS UNDER SEC-
5 TION 42-203A, IDAHO CODE, AND TO PROVIDE DISCRETION TO THE DIRECTOR OF THE
6 DEPARTMENT OF WATER RESOURCES IN GIVING NOTICE OF PROPOSED CHANGES TO THE
7 POINT OF DIVERSION OR PLACE OF USE OF A WATER RIGHT THAT DO NOT IMPACT THE
8 HYDROLOGIC SYSTEM OR AFFECT THE RIGHTS OF OTHER WATER USERS.
9 Be It Enacted by the Legislature of the State of Idaho:
10 SECTION 1. That Section 42-222, Idaho Code, be, and the same is hereby
11 amended to read as follows:
12 42-222. CHANGE IN POINT OF DIVERSION, PLACE OF USE, PERIOD OF USE, OR
13 NATURE OF USE OF WATER UNDER ESTABLISHED RIGHTS -- FORFEITURE AND EXTENSION --
14 APPEALS. (1) Any person, entitled to the use of water whether represented by
15 license issued by the department of water resources, by claims to water rights
16 by reason of diversion and application to a beneficial use as filed under the
17 provisions of this chapter, or by decree of the court, who shall desire to
18 change the point of diversion, place of use, period of use or nature of use of
19 all or part of the water, under the right shall first make application to the
20 department of water resources for approval of such change. Such application
21 shall be upon forms furnished by the department and shall describe the right
22 licensed, claimed or decreed which is to be changed and the changes which are
23 proposed, and shall be accompanied by the statutory filing fee as in this
24 chapter provided. Upon receipt of such application it shall be the duty of the
25 director of the department of water resources to examine same, obtain any con-
26 sent required in section 42-108, Idaho Code, and if otherwise proper to pro-
27 vide notice of the proposed change in the same a similar manner as applica-
28 tions under section 42-203A, Idaho Code. Such notice shall advise that anyone
29 who desires to protest the proposed change shall file notice of protests with
30 the department within ten (10) days of the last date of publication. Upon the
31 receipt of any protest, accompanied by the statutory filing fee as provided in
32 section 42-221, Idaho Code, it shall be the duty of the director of the
33 department of water resources to investigate the same and to conduct a hearing
34 thereon. He shall also advise the watermaster of the district in which such
35 water is used of the proposed change and the watermaster shall notify the
36 director of the department of water resources of his recommendation on the
37 application, and the director of the department of water resources shall not
38 finally determine the action on the application for change until he has
39 received from such watermaster his recommendation thereof, which action of the
40 watermaster shall be received and considered as other evidence. For applica-
41 tions proposing to change only the point of diversion or place of use of a
42 water right in a manner that will not change the effect on the source for the
43 right and any other hydraulically-connected sources from the effect resulting
2
1 under the right as previously approved, and that will not affect the rights of
2 other water users, the director of the department of water resources shall
3 give only such notice to other users as he deems appropriate.
4 When the nature of use of the water right is to be changed to municipal
5 purposes and some or all of the right will be held by a municipal provider to
6 serve reasonably anticipated future needs, the municipal provider shall pro-
7 vide to the department sufficient information and documentation to establish
8 that the applicant qualifies as a municipal provider and that the reasonably
9 anticipated future needs, the service area and the planning horizon are con-
10 sistent with the definitions and requirements specified in this chapter. The
11 service area need not be described by legal description nor by description of
12 every intended use in detail, but the area must be described with sufficient
13 information to identify the general location where the water under the water
14 right is to be used and the types and quantity of uses that generally will be
15 made.
16 When a water right or a portion thereof to be changed is held by a munici-
17 pal provider for municipal purposes, as defined in section 42-202B, Idaho
18 Code, that portion of the right held for reasonably anticipated future needs
19 at the time of the change shall not be changed to a place of use outside the
20 service area, as defined in section 42-202B, Idaho Code, or to a new nature of
21 use.
22 The director of the department of water resources shall examine all the
23 evidence and available information and shall approve the change in whole, or
24 in part, or upon conditions, provided no other water rights are injured
25 thereby, the change does not constitute an enlargement in use of the original
26 right, the change is consistent with the conservation of water resources
27 within the state of Idaho and is in the local public interest as defined in
28 section 42-202B, Idaho Code, the change will not adversely affect the local
29 economy of the watershed or local area within which the source of water for
30 the proposed use originates, in the case where the place of use is outside of
31 the watershed or local area where the source of water originates, and the new
32 use is a beneficial use, which in the case of a municipal provider shall be
33 satisfied if the water right is necessary to serve reasonably anticipated
34 future needs as provided in this chapter. The director may consider consump-
35 tive use, as defined in section 42-202B, Idaho Code, as a factor in determin-
36 ing whether a proposed change would constitute an enlargement in use of the
37 original water right. The director shall not approve a change in the nature of
38 use from agricultural use where such change would significantly affect the
39 agricultural base of the local area. The transfer of the right to the use of
40 stored water for irrigation purposes shall not constitute an enlargement in
41 use of the original right even though more acres may be irrigated, if no other
42 water rights are injured thereby. A copy of the approved application for
43 change shall be returned to the applicant and he shall be authorized upon
44 receipt thereof to make the change and the original water right shall be pre-
45 sumed to have been amended by reason of such authorized change. In the event
46 the director of the department of water resources determines that a proposed
47 change shall not be approved as provided in this section, he shall deny the
48 same and forward notice of such action to the applicant by certified mail,
49 which decision shall be subject to judicial review as hereafter set forth.
50 Provided however, minimum stream flow water rights may not be established
51 under the local public interest criterion, and may only be established pursu-
52 ant to chapter 15, title 42, Idaho Code.
53 (2) All rights to the use of water acquired under this chapter or other-
54 wise shall be lost and forfeited by a failure for the term of five (5) years
55 to apply it to the beneficial use for which it was appropriated and when any
3
1 right to the use of water shall be lost through nonuse or forfeiture such
2 rights to such water shall revert to the state and be again subject to appro-
3 priation under this chapter; except that any right to the use of water shall
4 not be lost through forfeiture by the failure to apply the water to beneficial
5 use under certain circumstances as specified in section 42-223, Idaho Code.
6 (3) Upon proper showing before the director of the department of water
7 resources of good and sufficient reason for nonapplication to beneficial use
8 of such water for such term of five (5) years, the director of the department
9 of water resources is hereby authorized to grant an extension of time extend-
10 ing the time for forfeiture of title for nonuse thereof, to such waters for a
11 period of not to exceed five (5) additional years.
12 (4) Application for an extension shall be made before the end of the five
13 (5) year period upon forms to be furnished by the department of water
14 resources and shall fully describe the right on which an extension of time to
15 resume the use is requested and the reasons for such nonuse and shall be
16 accompanied by the statutory filing fee; provided that water rights protected
17 from forfeiture under the provisions of section 42-223, Idaho Code, are exempt
18 from this requirement.
19 (a) Upon the receipt of such application it shall be the duty of the
20 director of the department of water resources to examine the same and to
21 provide notice of the application for an extension in the same manner as
22 applications under section 42-203A, Idaho Code. The notice shall fully
23 describe the right, the extension which is requested and the reason for
24 such nonuse and shall state that any person desiring to object to the
25 requested extension may submit a protest, accompanied by the statutory
26 filing fee as provided in section 42-221, Idaho Code, to the director of
27 the department of water resources within ten (10) days of the last date of
28 publication.
29 (b) Upon receipt of a protest it shall be the duty of the director of the
30 department of water resources to investigate and conduct a hearing thereon
31 as in this chapter provided.
32 (c) The director of the department of water resources shall find from the
33 evidence presented in any hearing, or from information available to the
34 department, the reasons for such nonuse of water and where it appears to
35 the satisfaction of the director of the department of water resources that
36 other rights will not be impaired by granting an extension of time within
37 which to resume the use of the water and good cause appearing for such
38 nonuse, he may grant one (1) extension of five (5) years within which to
39 resume such use.
40 (d) In his approval of the application for an extension of time under
41 this section the director of the department of water resources shall set
42 the date when the use of water is to be resumed. Sixty (60) days before
43 such date the director of the department of water resources shall forward
44 to the applicant at his address of record a notice by certified mail set-
45 ting forth the date on which the use of water is to be resumed and a form
46 for reporting the resumption of the use of the water right. If the use of
47 the water has not been resumed and report thereon made on or before the
48 date set for resumption of use such right shall revert to the state and
49 again be subject to appropriation, as provided in this section.
50 (e) In the event the director of the department of water resources deter-
51 mines that a proposed extension of time within which to resume use of a
52 water right shall not be approved as provided in this section, he shall
53 deny same and forward notice of such action to the applicant by certified
54 mail, which decision shall be subject to judicial review as hereafter pro-
55 vided.
4
1 (5) Any person or persons feeling themselves aggrieved by the determina-
2 tion of the department of water resources in approving or rejecting an appli-
3 cation to change the point of diversion, place, period of use or nature of use
4 of water under an established right or an application for an extension of time
5 within which to resume the use of water as provided in this section, may, if a
6 protest was filed and a hearing held thereon, seek judicial review pursuant to
7 section 42-1701A(4), Idaho Code. If no protest was filed and no hearing held,
8 the applicant may request a hearing pursuant to section 42-1701A(3), Idaho
9 Code, for the purpose of contesting the action of the director and may seek
10 judicial review of the final order of the director following the hearing pur-
11 suant to section 42-1701A(4), Idaho Code.
STATEMENT OF PURPOSE
RS 13489C1
The purpose of this legislation is to provide discretion to the
Director in whether to provide notice of proposed changes to the
point of diversion or place of use of a water right that do not
impact the hydrologic system or affect the rights of other water
users. An example of this type of change is correction of legal
description errors typically determined by the use of technology
such as Global Positioning Systems.
FISCAL IMPACT
Enactment of this legislation should result in reduced publication
costs for Department of Water Resources, with no direct effect upon
the state's general fund or other state or local funds.
CONTACT
Name: Karl J. Dreher
Agency: Department of Water Resources
Phone: (208) 327-7910
Statement of Purpose/Fiscal Impact S 1295