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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 samea 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