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H0284aa.............................................by REVENUE AND TAXATION
DITCHES - CANALS - RECREATIONAL USE - Amends existing law relating to the
authorized and unauthorized use of ditches, canals, laterals and drains for
recreational purposes to extend the liability protection to all
recreational use of land and water areas; to provide that human contact
recreation is not a designated or existing use for facilities unless the
use is permitted by the facility owner or manager; and to prohibit
recreational use of irrigation or drainage facilities unless such use is
permitted by the facility owner or manager.
03/02 House intro - 1st rdg - to printing
03/03 Rpt prt - to Res/Con
03/10 Rpt out - to Gen Ord
03/14 Rpt out amen - to engros
03/15 Rpt engros - 1st rdg - to 2nd rdg as amen
03/16 2nd rdg - to 3rd rdg as amen
Rls susp - PASSED - 55-10-5
AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer,
Bedke, Bell, Bilbao, Black, Block, Boe, Bolz, Cannon, Chadderdon,
Collins, Crow, Deal, Denney, Ellsworth, Field(18), Field(23),
Garrett, Hart(Jacobson), Harwood, Henbest, Henderson, Jaquet, Jones,
McGeachin, McKague, Miller, Mitchell, Moyle, Nielsen, Nonini,
Pasley-Stuart, Pence, Raybould, Ring, Roberts, Rusche, Rydalch, Sali,
Sayler, Schaefer, Shepherd(2), Shepherd(8), Skippen, Smylie,
Stevenson, Trail, Wills, Wood, Mr. Speaker
NAYS -- Bradford, Clark, Lake, LeFavour, Loertscher, Martinez,
Mathews, Ringo, Smith(30), Smith(24)
Absent and excused -- Edmunson, Eskridge, Kemp, Shirley, Snodgrass
Floor Sponsors - Moyle & Block
Title apvd - to Senate
03/17 Senate intro - 1st rdg - to Res/Env
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature First Regular Session - 2005
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 284
BY REVENUE AND TAXATION COMMITTEE
1 AN ACT
2 RELATING TO THE AUTHORIZED AND UNAUTHORIZED USE OF DITCHES, CANALS, LATERALS
3 AND DRAINS FOR RECREATIONAL PURPOSES; AMENDING SECTION 36-1604, IDAHO
4 CODE, TO EXTEND LIABILITY PROTECTION TO ALL RECREATIONAL USE OF LAND AND
5 WATER AREAS AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION 39-3602,
6 IDAHO CODE, TO EXCLUDE DITCHES, CANALS, LATERALS AND DRAINS FROM THE DEFI-
7 NITION OF "WATERS OR WATER BODY"; AMENDING SECTION 39-3603, IDAHO CODE, TO
8 PROVIDE THAT HUMAN CONTACT RECREATION IS NOT A DESIGNATED OR EXISTING USE
9 FOR FACILITIES UNLESS THE USE IS PERMITTED BY THE FACILITY OWNER OR MAN-
10 AGER; AMENDING SECTION 39-3604, IDAHO CODE, TO PROVIDE THAT HUMAN CONTACT
11 RECREATION IS NOT A DESIGNATED OR EXISTING USE FOR FACILITIES UNLESS THE
12 USE IS PERMITTED BY THE FACILITY OWNER OR MANAGER; AND AMENDING SECTION
13 42-1102, IDAHO CODE, TO PROHIBIT RECREATIONAL USE OF IRRIGATION AND DRAIN-
14 AGE FACILITIES UNLESS SUCH USE IS PERMITTED BY THE FACILITY OWNER OR MAN-
15 AGER.
16 Be It Enacted by the Legislature of the State of Idaho:
17 SECTION 1. That Section 36-1604, Idaho Code, be, and the same is hereby
18 amended to read as follows:
19 36-1604. LIMITATION OF LIABILITY OF LANDOWNER. (a) Statement of Purpose.
20 The purpose of this section is to encourage limit the liability of owners of
21 land to make land and water areas available to the public toward persons
22 entering thereon without charge for recreational purposes. by limiting their
23 liability toward persons entering thereon for such purposes.
24 (b) Definitions. As used in this section:
25 1. "Land" means private or public land, roads, trails, water, water-
26 courses, irrigation dams, water control structures, headgates, private or
27 public ways and buildings, structures, and machinery or equipment when
28 attached to or used on the realty.
29 2. "Owner" means the possessor of a fee interest, a tenant, lessee, occu-
30 pant or person in control of the premises.
31 3. "Recreational purposes" includes, but is not limited to, any of the
32 following or any combination thereof: hunting, fishing, swimming, boating,
33 rafting, tubing, camping, picnicking, hiking, pleasure driving, bicycling,
34 running, playing on playground equipment, skateboarding, athletic competi-
35 tion, nature study, water skiing, animal riding, motorcycling,
36 snowmobiling, recreational vehicles, winter sports, and viewing or enjoy-
37 ing historical, archeological, scenic, geological or scientific sites,
38 when done without charge of the owner.
39 (c) Owner Exempt from Warning. An owner of land owes no duty of care to
40 keep the premises safe for entry by trespassers, invitees, licensees, guests
41 and others for recreational purposes, or to give any warning of a dangerous
42 condition, use, structure, or activity on such premises to such persons enter-
43 ing for such purposes. Neither the installation of a sign or other form of
2
1 warning of a dangerous condition, use, structure, or activity, nor any modifi-
2 cation made for the purpose of improving the safety of others, nor the failure
3 to maintain or keep in place any sign, other form of warning, or modification
4 made to improve safety, shall create liability on the part of an owner of land
5 where there is no other basis for such liability.
6 (d) Owner Assumes No Liability Not Liable. An owner of whose land or
7 equipment who either directly or indirectly invites or permits is used by
8 trespassers, invitees, licensees, guests and other persons without charge any
9 person to use such property for recreational purposes does shall not thereby
10 be deemed to:
11 1. Extend or owe to such persons any duty of care or assurance that the
12 premises are safe for any purpose.
13 2. Confer upon such person the legal status of an invitee or licensee to
14 whom a duty of care is owed.
15 3. Assume responsibility for or incur liability for any injury to person
16 or property caused by an act of or omission of such persons.
17 (e) Provisions Apply to Leased Public Land. Unless otherwise agreed in
18 writing, the provisions of this section shall be deemed applicable to the
19 duties and liability of an owner of land leased to the state or any subdivi-
20 sion thereof for recreational purposes.
21 (f) Provisions Apply to Land Subject to a Conservation Easement. Unless
22 otherwise agreed in writing, the provisions of this section shall be deemed
23 applicable to the duties and liability of an owner of land subject to a con-
24 servation easement to any governmental entity or nonprofit organization.
25 (g) Owner Not Required to Keep Land Safe. Nothing in this section shall
26 be construed to:
27 1. Create a duty of care or ground of liability for injury to persons or
28 property.
29 2. Relieve any person using the land of another for recreational purposes
30 from any obligation which he may have in the absence of this section to
31 exercise care in his use of such land and in his activities thereon, or
32 from legal consequences or failure to employ such care.
33 3. Apply to any person or persons who for compensation permit the land to
34 be used for recreational purposes.
35 (h) User Liable for Damages. Any person using the land of another for
36 recreational purposes, with or without permission, shall be liable for any
37 damage to property, livestock or crops which he may cause while on said prop-
38 erty.
39 SECTION 2. That Section 39-3602, Idaho Code, be, and the same is hereby
40 amended to read as follows:
41 39-3602. DEFINITIONS. Whenever used or referred to in this chapter,
42 unless a different meaning clearly appears from the context, the following
43 terms shall have the following meanings:
44 (1) "Applicable water quality standard" means those water quality stan-
45 dards identified in the rules of the department.
46 (2) "Best management practice" means practices, techniques or measures
47 developed, or identified, by the designated agency and identified in the state
48 water quality management plan which are determined to be a cost-effective and
49 practicable means of preventing or reducing pollutants generated from nonpoint
50 sources to a level compatible with water quality goals.
51 (3) "Board" means the board of environmental quality.
52 (4) "Department" means the department of environmental quality.
53 (5) "Designated agency" means the department of lands for timber harvest
3
1 activities, for oil and gas exploration and development and for mining activi-
2 ties; the soil conservation commission for grazing activities and for agricul-
3 tural activities; the transportation department for public road construction;
4 the department of agriculture for aquaculture; and the department of environ-
5 mental quality for all other activities.
6 (6) "Designated use or designated beneficial use" means those uses
7 assigned to waters as identified in the rules of the department whether or not
8 the uses are being attained. The department may adopt subcategories of a use.
9 (7) "Director" means the director of the department of environmental
10 quality, or his or her designee.
11 (8) "Discharge" means any spilling, leaking, emitting, escaping, leach-
12 ing, or disposing of a pollutant into the waters of the state. For the pur-
13 poses of this chapter, discharge shall not include surface water runoff from
14 nonpoint sources or natural soil disturbing events.
15 (9) "Existing use" means those surface water uses actually attained on or
16 after November 28, 1975, whether or not they are designated uses. Existing
17 uses may form the basis for subcategories of designated uses.
18 (10) "Full protection, full support, or full maintenance of designated
19 beneficial uses of water" means compliance with those levels of water quality
20 criteria listed in the appropriate rules of the department, or where there is
21 no applicable numerical criteria, compliance with the reference streams or
22 conditions approved by the director in consultation with the appropriate basin
23 advisory group.
24 (11) "Lower water quality" means a measurable adverse change in a chemi-
25 cal, physical, or biological parameter of water relevant to a designated bene-
26 ficial use, and which can be expressed numerically. Measurable adverse change
27 is determined by a statistically significant difference between sample means
28 using standard methods for analysis and statistical interpretation appropriate
29 to the parameter. Statistical significance is defined as the ninety-five per-
30 cent (95%) confidence limit when significance is not otherwise defined for the
31 parameter in standard methods or practices.
32 (12) "National pollutant discharge elimination system (NPDES)" means the
33 point source permitting program established pursuant to section 402 of the
34 federal clean water act.
35 (13) "New nonpoint source activity" means a new nonpoint source activity
36 or a substantially modified existing nonpoint source activity on or adversely
37 affecting an outstanding resource water which includes, but is not limited to,
38 new silvicultural activities, new mining activities and substantial modifica-
39 tions to an existing mining permit or approved plan, new recreational activi-
40 ties and substantial modifications to existing recreational activities, new
41 residential or commercial development that includes soil disturbing activi-
42 ties, new grazing activities and substantial modifications to existing grazing
43 activities, except that reissuance of existing grazing permits, or grazing
44 activities and practices authorized under an existing permit, is not consid-
45 ered a new activity. It does not include naturally occurring events such as
46 floods, landslides, and wildfire including prescribed natural fire.
47 (14) "Nonpoint source activities" includes grazing, crop production, sil-
48 viculture, log storage or rafting, construction, mining, recreation, septic
49 systems, runoff from storms and other weather related events and other activi-
50 ties not subject to regulation under the federal national pollutant discharge
51 elimination system. Nonpoint source activities on waters designated as out-
52 standing resource waters do not include issuance of water rights permits or
53 licenses, allocation of water rights, operation of diversions, or impound-
54 ments.
55 (15) "Nonpoint source runoff" means water which may carry pollutants from
4
1 nonpoint source activities into the waters of the state.
2 (16) "Outstanding resource water" means a high quality water, such as
3 water of national and state parks and wildlife refuges and water of excep-
4 tional recreational or ecological significance, which has been so designated
5 by the legislature. It constitutes an outstanding national or state resource
6 that requires protection from point source and nonpoint source activities that
7 may lower water quality.
8 (17) "Person" means any individual, association, partnership, firm, joint
9 stock company, joint venture, trust, estate, political subdivision, public or
10 private corporation, state or federal governmental department, agency or
11 instrumentality, or any legal entity, which is recognized by law as the sub-
12 ject of rights and duties.
13 (18) "Point source" means any discernible, confined, and discrete convey-
14 ance including, but not limited to, any pipe, ditch, channel, tunnel, conduit,
15 well, discrete fissure, container, rolling stock, concentrated animal feeding
16 operation, or vessel or other floating craft, from which pollutants are, or
17 may be, discharged. This term does not include return flows from irrigated
18 agriculture, discharges from dams and hydroelectric generating facilities or
19 any source or activity considered a nonpoint source by definition.
20 (19) "Pollutant" means dredged spoil, solid waste, incinerator residue,
21 sewage, garbage, sewage sludge, munitions, chemical waste, biological mate-
22 rials, radioactive materials, heat, wrecked or discarded equipment, rock,
23 sand, silt, cellar dirt; and industrial, municipal and agricultural waste,
24 gases entrained in water; or other materials which, when discharged or
25 released to water in excessive quantities cause or contribute to water pollu-
26 tion. Provided however, biological materials shall not include live or occa-
27 sional dead fish that may accidentally escape into the waters of the state
28 from aquaculture facilities.
29 (20) "Reference stream or condition" means one (1) of the following:
30 (a) The minimum biological, physical and chemical conditions necessary to
31 fully support the designated beneficial uses; or
32 (b) A water body representing natural conditions with few impacts from
33 human activities and which are representative of the highest level of sup-
34 port attainable in the basin; or
35 (c) A water body representing minimum conditions necessary to fully sup-
36 port the designated beneficial uses.
37 In highly mineralized areas or in the absence of such reference streams or
38 water bodies, the director, in consultation with the basin advisory group and
39 the technical advisers to it, may define appropriate hypothetical reference
40 conditions or may use monitoring data specific to the site in question to
41 determine conditions in which the beneficial uses are fully supported.
42 (21) "Short-term or temporary activity" means an activity which is limited
43 in scope and is expected to have only minimal impact on water quality as
44 determined by the director. Short-term or temporary activities include, but
45 are not limited to, maintenance of existing structures, limited road and trail
46 reconstruction, soil stabilization measures, and habitat enhancement struc-
47 tures.
48 (22) "Silviculture" means those activities associated with the
49 regeneration, growing and harvesting of trees and timber including, but not
50 limited to, disposal of logging slash, preparing sites for new stands of trees
51 to be either planted or allowed to regenerate through natural means, road con-
52 struction and road maintenance, drainage of surface water which inhibits tree
53 growth or logging operations, fertilization, application of herbicides or pes-
54 ticides, all logging operations, and all forest management techniques employed
55 to enhance the growth of stands of trees or timber.
5
1 (23) "Soil conservation commission" means an agency of state government as
2 created in section 22-2718, Idaho Code.
3 (24) "Soil conservation district" means an entity of state government as
4 defined in section 22-2717, Idaho Code.
5 (25) "State" means the state of Idaho.
6 (26) "State water quality management plan" means the state management plan
7 developed and updated by the department in accordance with sections 205, 208,
8 and 303 of the federal clean water act.
9 (27) "Total maximum daily load (TMDL)" means a plan for a water body not
10 fully supporting designated beneficial uses and includes the sum of the indi-
11 vidual wasteload allocations for point sources, load allocations for nonpoint
12 sources, and natural background levels of the pollutant impacting the water
13 body. Pollutant allocations established through TMDLs shall be at a level nec-
14 essary to implement the applicable water quality standards for the identified
15 pollutants with seasonal variations and a margin of safety to account for
16 uncertainty concerning the relationship between the pollutant loading and
17 water quality standards.
18 (28) "Waters or water body" means all the accumulations of surface water,
19 natural and artificial, public and private, or parts thereof which are wholly
20 or partially within, flow through or border upon this state. For the purposes
21 of this chapter, water bodies shall not include ditches, canals, laterals or
22 drains that are constructed and used for irrigation or drainage purposes,
23 municipal or industrial wastewater treatment or storage structures or private
24 reservoirs, the operation of which has no effect on waters of the state.
25 (29) "Water pollution" is such alteration of the thermal, chemical, bio-
26 logical or radioactive properties of any waters of the state, or such dis-
27 charge or release of any contaminant into the waters of the state as will or
28 is likely to create a nuisance or render such waters harmful or detrimental or
29 injurious to public health, safety or welfare or to domestic, commercial,
30 industrial, recreational, aesthetic or other legitimate uses or to livestock,
31 wild animals, birds, fish or other aquatic life.
32 (30) "Watersheds" means the land area from which water flows into a stream
33 or other body of water which drains the area. For the purposes of this chap-
34 ter, the area of watersheds shall be recommended by the basin advisory group
35 described in section 39-3613, Idaho Code.
36 SECTION 3. That Section 39-3603, Idaho Code, be, and the same is hereby
37 amended to read as follows:
38 39-3603. GENERAL WATER QUALITY STANDARD AND ANTIDEGRADATION POLICY. The
39 existing lawful instream beneficial uses of each water body and the level of
40 water quality necessary to protect those uses shall be maintained and pro-
41 tected. Where the quality of waters exceeds levels necessary to support prop-
42 agation of fish, shellfish and wildlife and recreation in and on the water,
43 that quality shall be maintained unless the department finds, after full sat-
44 isfaction of the intergovernmental coordination and public participation pro-
45 visions of this chapter, and the department's planning processes, along with
46 appropriate planning processes of other agencies, that lowering water quality
47 is necessary to accommodate important economic or social development in the
48 area in which the waters are located. In allowing such reductions in water
49 quality, the department shall assure water quality adequate to protect exist-
50 ing uses fully. Human contact recreation shall not be considered an existing
51 use of water in any ditch, canal, lateral or drain constructed and used for
52 irrigation or drainage purposes, unless such use is authorized or permitted by
53 the owner or managing agent of such irrigation or drainage facility. Unautho-
6
1 rized human contact recreational use of the water in irrigation delivery and
2 drainage facilities is contrary to public health and safety, the
3 appropriator's ownership of the water in such facilities as recognized by sec-
4 tion 42-110, Idaho Code, and the purposes for which such facilities are con-
5 structed and operated.
6 SECTION 4. That Section 39-3604, Idaho Code, be, and the same is hereby
7 amended to read as follows:
8 39-3604. DESIGNATION OF INSTREAM BENEFICIAL USES. For each surface water
9 body, the director shall designate, pursuant to chapter 52, title 67, Idaho
10 Code, and specifically list in the rules of the department, the lawful benefi-
11 cial use(s) which that water body can reasonably be expected to support con-
12 sistent with public health and safety without regard to whether that the
13 use(s) is are fully supported at the time of such designation. In making such
14 designations, the director shall consider the existing lawful use(s) of the
15 water body which can be made consistent with public health and safety, and
16 such physical, geological, chemical and biological measures as may affect the
17 water body and shall make such designations utilizing fully the public partic-
18 ipation provisions set forth in this chapter. Designated uses as set forth in
19 this chapter shall fully support existing uses. Designations of beneficial
20 uses shall be reviewed as necessary and revised when such physical, chemical
21 or biological measures indicate the need to do so. In revising a designated
22 beneficial use, the director shall consider the economic impact of the revi-
23 sion and the economic costs required to fully support the revised designated
24 beneficial use. There shall be no requirement for persons who either conduct
25 nonpoint activities or who conduct operations on waters described in section
26 39-3609, Idaho Code, pursuant to a national pollution discharge elimination
27 system permit to meet water quality criteria other than those necessary for
28 the full support of the existing beneficial use for the water body pertinent
29 to either the nonpoint activity or point source permit in question, except as
30 provided in section 39-3611, Idaho Code.
31 There shall be no human contact recreational use designations for the
32 water in any ditch, canal, lateral or drain constructed and used for irriga-
33 tion or drainage purposes, unless such use is authorized or permitted by the
34 owner or managing agent of such irrigation or drainage facility. Unauthorized
35 human contact recreational use of the water in irrigation delivery and drain-
36 age facilities is contrary to public health and safety, the appropriator's
37 ownership of the water in such facilities as recognized by section 42-110,
38 Idaho Code, and the purposes for which such facilities are constructed and
39 operated.
40 SECTION 5. That Section 42-1102, Idaho Code, be, and the same is hereby
41 amended to read as follows:
42 42-1102. OWNERS OF LAND -- RIGHT TO RIGHT-OF-WAY. When any such owners or
43 claimants to land have not sufficient length of frontage on a stream to afford
44 the requisite fall for a ditch, canal or other conduit on their own premises
45 for the proper irrigation thereof, or where the land proposed to be irrigated
46 is back from the banks of such stream, and convenient facilities otherwise for
47 the watering of said lands cannot be had, such owners or claimants are enti-
48 tled to a right-of-way through the lands of others, for the purposes of irri-
49 gation. The right-of-way shall include, but is not limited to, the right to
50 enter the land across which the right-of-way extends, for the purposes of
51 cleaning, maintaining and repairing the ditch, canal or conduit, and to occupy
7
1 such width of the land along the banks of the ditch, canal or conduit as is
2 necessary to properly do the work of cleaning, maintaining and repairing the
3 ditch, canal or conduit with personnel and with such equipment as is commonly
4 used, or is reasonably adapted, to that work. The right-of-way also includes
5 the right to deposit on the banks of the ditch or canal the debris and other
6 matter necessarily required to be taken from the ditch or canal to properly
7 clean and maintain it, but no greater width of land along the banks of the
8 canal or ditch than is absolutely necessary for such deposits shall be occu-
9 pied by the removed debris or other matter. Provided, that in the making, con-
10 structing, keeping up and maintenance of such ditch, canal or conduit, through
11 the lands of others, the person, company or corporation, proceeding under this
12 section, and those succeeding to the interests of such person, company or cor-
13 poration, must keep such ditch, canal or other conduit in good repair, and are
14 liable to the owners or claimants of the lands crossed by such work or aque-
15 duct for all damages occasioned by the overflow thereof, or resulting from any
16 neglect or accident (unless the same be unavoidable) to such ditch or aque-
17 duct.
18 The existence of a visible ditch, canal or conduit shall constitute notice
19 to the owner, or any subsequent purchaser, of the underlying servient estate,
20 that the owner of the ditch, canal or conduit has the right-of-way and inci-
21 dental rights confirmed or granted by this section.
22 Rights-of-way provided by this section are essential for the operations of
23 the ditches, canals and conduits. No person or entity shall cause or permit
24 any encroachments onto the right-of-way, including public or private roads,
25 utilities, fences, gates, pipelines, structures, or other construction or
26 placement of objects, without the written permission of the owner of the
27 right-of-way, in order to ensure that any such encroachments will not
28 unreasonably or materially interfere with the use and enjoyment of the right-
29 of-way. Encroachments of any kind placed in such right-of-way without express
30 written permission of the owner of the right-of-way shall be removed at the
31 expense of the person or entity causing or permitting such encroachment, upon
32 the request of the owner of the right-of-way, in the event that any such
33 encroachments unreasonably or materially interfere with the use and enjoyment
34 of the right-of-way. Nothing in this section shall in any way affect the exer-
35 cise of the right of eminent domain for the public purposes set forth in sec-
36 tion 7-701, Idaho Code.
37 There shall be no human contact recreational use of the water in any
38 ditch, canal, lateral or drain or other conduit constructed and used for irri-
39 gation or drainage purposes, unless such use is authorized or permitted by the
40 owner or managing agent of such irrigation or drainage facility. The liability
41 limitations of section 36-1604, Idaho Code, shall apply to authorized or unau-
42 thorized use of irrigation or drainage facilities. Unauthorized human contact
43 recreational use of water in irrigation delivery and drainage facilities is
44 contrary to public health and safety, the appropriator's ownership of the
45 water in such facilities as recognized by section 42-110, Idaho Code, and the
46 purposes for which such facilities are constructed and operated.
47 This section shall apply to ditches, canals or other conduits existing on
48 the effective date of this act, as well as to ditches, canals or other con-
49 duits constructed after such effective date.
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature First Regular Session - 2005
Moved by Block
Seconded by Moyle
IN THE HOUSE OF REPRESENTATIVES
HOUSE AMENDMENTS TO H.B. NO. 284
1 AMENDMENT TO SECTION 3
2 On page 5 of the printed bill, in line 39, delete "lawful".
3 AMENDMENTS TO SECTION 4
4 On page 6, in line 10 delete "lawful"; in line 11 delete "con-"; in line
5 12 delete "sistent with public health and safety"; in line 14 delete "lawful";
6 and in line 15 delete "which can be made consistent with public health and
7 safety,".
8 AMENDMENTS TO THE BILL
9 On page 2, delete lines 39 through 53; delete pages 3 and 4; on page 5,
10 delete lines 1 through 35; and in line 36 delete "SECTION 3" and insert:
11 "SECTION 2".
12 On page 6, in line 6 delete "SECTION 4" and insert: "SECTION 3"; and in
13 line 40 delete "SECTION 5" and insert: "SECTION 4".
14 CORRECTION TO TITLE
15 On page 1, delete lines 5 through 7 and insert: "WATER AREAS AND TO MAKE A
16 TECHNICAL CORRECTION; AMENDING SECTION 39-3603, IDAHO CODE, TO".
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature First Regular Session - 2005
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 284, As Amended
BY REVENUE AND TAXATION COMMITTEE
1 AN ACT
2 RELATING TO THE AUTHORIZED AND UNAUTHORIZED USE OF DITCHES, CANALS, LATERALS
3 AND DRAINS FOR RECREATIONAL PURPOSES; AMENDING SECTION 36-1604, IDAHO
4 CODE, TO EXTEND LIABILITY PROTECTION TO ALL RECREATIONAL USE OF LAND AND
5 WATER AREAS AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION 39-3603,
6 IDAHO CODE, TO PROVIDE THAT HUMAN CONTACT RECREATION IS NOT A DESIGNATED
7 OR EXISTING USE FOR FACILITIES UNLESS THE USE IS PERMITTED BY THE FACILITY
8 OWNER OR MANAGER; AMENDING SECTION 39-3604, IDAHO CODE, TO PROVIDE THAT
9 HUMAN CONTACT RECREATION IS NOT A DESIGNATED OR EXISTING USE FOR FACILI-
10 TIES UNLESS THE USE IS PERMITTED BY THE FACILITY OWNER OR MANAGER; AND
11 AMENDING SECTION 42-1102, IDAHO CODE, TO PROHIBIT RECREATIONAL USE OF
12 IRRIGATION AND DRAINAGE FACILITIES UNLESS SUCH USE IS PERMITTED BY THE
13 FACILITY OWNER OR MANAGER.
14 Be It Enacted by the Legislature of the State of Idaho:
15 SECTION 1. That Section 36-1604, Idaho Code, be, and the same is hereby
16 amended to read as follows:
17 36-1604. LIMITATION OF LIABILITY OF LANDOWNER. (a) Statement of Purpose.
18 The purpose of this section is to encourage limit the liability of owners of
19 land to make land and water areas available to the public toward persons
20 entering thereon without charge for recreational purposes. by limiting their
21 liability toward persons entering thereon for such purposes.
22 (b) Definitions. As used in this section:
23 1. "Land" means private or public land, roads, trails, water, water-
24 courses, irrigation dams, water control structures, headgates, private or
25 public ways and buildings, structures, and machinery or equipment when
26 attached to or used on the realty.
27 2. "Owner" means the possessor of a fee interest, a tenant, lessee, occu-
28 pant or person in control of the premises.
29 3. "Recreational purposes" includes, but is not limited to, any of the
30 following or any combination thereof: hunting, fishing, swimming, boating,
31 rafting, tubing, camping, picnicking, hiking, pleasure driving, bicycling,
32 running, playing on playground equipment, skateboarding, athletic competi-
33 tion, nature study, water skiing, animal riding, motorcycling,
34 snowmobiling, recreational vehicles, winter sports, and viewing or enjoy-
35 ing historical, archeological, scenic, geological or scientific sites,
36 when done without charge of the owner.
37 (c) Owner Exempt from Warning. An owner of land owes no duty of care to
38 keep the premises safe for entry by trespassers, invitees, licensees, guests
39 and others for recreational purposes, or to give any warning of a dangerous
40 condition, use, structure, or activity on such premises to such persons enter-
41 ing for such purposes. Neither the installation of a sign or other form of
42 warning of a dangerous condition, use, structure, or activity, nor any modifi-
43 cation made for the purpose of improving the safety of others, nor the failure
2
1 to maintain or keep in place any sign, other form of warning, or modification
2 made to improve safety, shall create liability on the part of an owner of land
3 where there is no other basis for such liability.
4 (d) Owner Assumes No Liability Not Liable. An owner of whose land or
5 equipment who either directly or indirectly invites or permits is used by
6 trespassers, invitees, licensees, guests and other persons without charge any
7 person to use such property for recreational purposes does shall not thereby
8 be deemed to:
9 1. Extend or owe to such persons any duty of care or assurance that the
10 premises are safe for any purpose.
11 2. Confer upon such person the legal status of an invitee or licensee to
12 whom a duty of care is owed.
13 3. Assume responsibility for or incur liability for any injury to person
14 or property caused by an act of or omission of such persons.
15 (e) Provisions Apply to Leased Public Land. Unless otherwise agreed in
16 writing, the provisions of this section shall be deemed applicable to the
17 duties and liability of an owner of land leased to the state or any subdivi-
18 sion thereof for recreational purposes.
19 (f) Provisions Apply to Land Subject to a Conservation Easement. Unless
20 otherwise agreed in writing, the provisions of this section shall be deemed
21 applicable to the duties and liability of an owner of land subject to a con-
22 servation easement to any governmental entity or nonprofit organization.
23 (g) Owner Not Required to Keep Land Safe. Nothing in this section shall
24 be construed to:
25 1. Create a duty of care or ground of liability for injury to persons or
26 property.
27 2. Relieve any person using the land of another for recreational purposes
28 from any obligation which he may have in the absence of this section to
29 exercise care in his use of such land and in his activities thereon, or
30 from legal consequences or failure to employ such care.
31 3. Apply to any person or persons who for compensation permit the land to
32 be used for recreational purposes.
33 (h) User Liable for Damages. Any person using the land of another for
34 recreational purposes, with or without permission, shall be liable for any
35 damage to property, livestock or crops which he may cause while on said prop-
36 erty.
37 SECTION 2. That Section 39-3603, Idaho Code, be, and the same is hereby
38 amended to read as follows:
39 39-3603. GENERAL WATER QUALITY STANDARD AND ANTIDEGRADATION POLICY. The
40 existing instream beneficial uses of each water body and the level of water
41 quality necessary to protect those uses shall be maintained and protected.
42 Where the quality of waters exceeds levels necessary to support propagation of
43 fish, shellfish and wildlife and recreation in and on the water, that quality
44 shall be maintained unless the department finds, after full satisfaction of
45 the intergovernmental coordination and public participation provisions of this
46 chapter, and the department's planning processes, along with appropriate plan-
47 ning processes of other agencies, that lowering water quality is necessary to
48 accommodate important economic or social development in the area in which the
49 waters are located. In allowing such reductions in water quality, the depart-
50 ment shall assure water quality adequate to protect existing uses fully. Human
51 contact recreation shall not be considered an existing use of water in any
52 ditch, canal, lateral or drain constructed and used for irrigation or drainage
53 purposes, unless such use is authorized or permitted by the owner or managing
3
1 agent of such irrigation or drainage facility. Unauthorized human contact rec-
2 reational use of the water in irrigation delivery and drainage facilities is
3 contrary to public health and safety, the appropriator's ownership of the
4 water in such facilities as recognized by section 42-110, Idaho Code, and the
5 purposes for which such facilities are constructed and operated.
6 SECTION 3. That Section 39-3604, Idaho Code, be, and the same is hereby
7 amended to read as follows:
8 39-3604. DESIGNATION OF INSTREAM BENEFICIAL USES. For each surface water
9 body, the director shall designate, pursuant to chapter 52, title 67, Idaho
10 Code, and specifically list in the rules of the department, the beneficial
11 use(s) which that water body can reasonably be expected to support without
12 regard to whether that the use(s) is are fully supported at the time of such
13 designation. In making such designations, the director shall consider the
14 existing use(s) of the water body and such physical, geological, chemical and
15 biological measures as may affect the water body and shall make such designa-
16 tions utilizing fully the public participation provisions set forth in this
17 chapter. Designated uses as set forth in this chapter shall fully support
18 existing uses. Designations of beneficial uses shall be reviewed as necessary
19 and revised when such physical, chemical or biological measures indicate the
20 need to do so. In revising a designated beneficial use, the director shall
21 consider the economic impact of the revision and the economic costs required
22 to fully support the revised designated beneficial use. There shall be no
23 requirement for persons who either conduct nonpoint activities or who conduct
24 operations on waters described in section 39-3609, Idaho Code, pursuant to a
25 national pollution discharge elimination system permit to meet water quality
26 criteria other than those necessary for the full support of the existing bene-
27 ficial use for the water body pertinent to either the nonpoint activity or
28 point source permit in question, except as provided in section 39-3611, Idaho
29 Code.
30 There shall be no human contact recreational use designations for the
31 water in any ditch, canal, lateral or drain constructed and used for irriga-
32 tion or drainage purposes, unless such use is authorized or permitted by the
33 owner or managing agent of such irrigation or drainage facility. Unauthorized
34 human contact recreational use of the water in irrigation delivery and drain-
35 age facilities is contrary to public health and safety, the appropriator's
36 ownership of the water in such facilities as recognized by section 42-110,
37 Idaho Code, and the purposes for which such facilities are constructed and
38 operated.
39 SECTION 4. That Section 42-1102, Idaho Code, be, and the same is hereby
40 amended to read as follows:
41 42-1102. OWNERS OF LAND -- RIGHT TO RIGHT-OF-WAY. When any such owners or
42 claimants to land have not sufficient length of frontage on a stream to afford
43 the requisite fall for a ditch, canal or other conduit on their own premises
44 for the proper irrigation thereof, or where the land proposed to be irrigated
45 is back from the banks of such stream, and convenient facilities otherwise for
46 the watering of said lands cannot be had, such owners or claimants are enti-
47 tled to a right-of-way through the lands of others, for the purposes of irri-
48 gation. The right-of-way shall include, but is not limited to, the right to
49 enter the land across which the right-of-way extends, for the purposes of
50 cleaning, maintaining and repairing the ditch, canal or conduit, and to occupy
51 such width of the land along the banks of the ditch, canal or conduit as is
4
1 necessary to properly do the work of cleaning, maintaining and repairing the
2 ditch, canal or conduit with personnel and with such equipment as is commonly
3 used, or is reasonably adapted, to that work. The right-of-way also includes
4 the right to deposit on the banks of the ditch or canal the debris and other
5 matter necessarily required to be taken from the ditch or canal to properly
6 clean and maintain it, but no greater width of land along the banks of the
7 canal or ditch than is absolutely necessary for such deposits shall be occu-
8 pied by the removed debris or other matter. Provided, that in the making, con-
9 structing, keeping up and maintenance of such ditch, canal or conduit, through
10 the lands of others, the person, company or corporation, proceeding under this
11 section, and those succeeding to the interests of such person, company or cor-
12 poration, must keep such ditch, canal or other conduit in good repair, and are
13 liable to the owners or claimants of the lands crossed by such work or aque-
14 duct for all damages occasioned by the overflow thereof, or resulting from any
15 neglect or accident (unless the same be unavoidable) to such ditch or aque-
16 duct.
17 The existence of a visible ditch, canal or conduit shall constitute notice
18 to the owner, or any subsequent purchaser, of the underlying servient estate,
19 that the owner of the ditch, canal or conduit has the right-of-way and inci-
20 dental rights confirmed or granted by this section.
21 Rights-of-way provided by this section are essential for the operations of
22 the ditches, canals and conduits. No person or entity shall cause or permit
23 any encroachments onto the right-of-way, including public or private roads,
24 utilities, fences, gates, pipelines, structures, or other construction or
25 placement of objects, without the written permission of the owner of the
26 right-of-way, in order to ensure that any such encroachments will not
27 unreasonably or materially interfere with the use and enjoyment of the right-
28 of-way. Encroachments of any kind placed in such right-of-way without express
29 written permission of the owner of the right-of-way shall be removed at the
30 expense of the person or entity causing or permitting such encroachment, upon
31 the request of the owner of the right-of-way, in the event that any such
32 encroachments unreasonably or materially interfere with the use and enjoyment
33 of the right-of-way. Nothing in this section shall in any way affect the exer-
34 cise of the right of eminent domain for the public purposes set forth in sec-
35 tion 7-701, Idaho Code.
36 There shall be no human contact recreational use of the water in any
37 ditch, canal, lateral or drain or other conduit constructed and used for irri-
38 gation or drainage purposes, unless such use is authorized or permitted by the
39 owner or managing agent of such irrigation or drainage facility. The liability
40 limitations of section 36-1604, Idaho Code, shall apply to authorized or unau-
41 thorized use of irrigation or drainage facilities. Unauthorized human contact
42 recreational use of water in irrigation delivery and drainage facilities is
43 contrary to public health and safety, the appropriator's ownership of the
44 water in such facilities as recognized by section 42-110, Idaho Code, and the
45 purposes for which such facilities are constructed and operated.
46 This section shall apply to ditches, canals or other conduits existing on
47 the effective date of this act, as well as to ditches, canals or other con-
48 duits constructed after such effective date.
STATEMENT OF PURPOSE
RS 14912C1
Most drownings in Idaho occur in irrigation ditches and drains. Most
of these drownings involve children. Water users, police departments,
parents, and even the Environmental Protection Agency and the
Department of Environmental Quality recognize that entering the water
in irrigation facilities can be extremely dangerous and, therefore,
contrary to public health and safety. Unauthorized recreational use
of these facilities also interferes with the ownership and delivery of
irrigation water and the operation and maintenance of irrigation
facilities. This legislation addresses the urgent need for clear and
consistent state policy on recreational use of irrigation facilities.
This bill provides that human contact recreation shall not be a state-
designated use of any irrigation facility that is constructed and used
for irrigation or drainage purposes, unless such use is permitted by
the owner or managing agent of the facility. This bill provides that
there shall be no such unauthorized use of irrigation facilities.
This bill also clarifies the legislature's intention that owners and
operators of irrigation facilities shall not be liable for injuries
resulting from authorized or unauthorized recreational use of
irrigation facilities.
FISCAL NOTE
There is no fiscal impact.
Contact:
Name: Rep. Mike Moyle
Rep. Sharon Block
Phone: (208) 332-1000
STATEMENT OF PURPOSE/FISCAL NOTE H 284