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H0394.....................................................by WAYS AND MEANS GROUND WATER DISTRICTS - Amends existing law relating to ground water districts; to provide for votes of city governments; to provide that certain ground water irrigators shall be members of districts and subject to assessments; to provide for orders of inclusion; to provide for notice of hearing; to provide for objections, appeals and conclusiveness of orders; to provide that certain persons who become entitled to appropriate or who appropriate ground water after the formation of a ground water district shall be deemed included in the district and subject to assessments as of a particular date; to provide for directors at large; to authorize ground water district boards of directors to incur specified indebtedness on behalf of the district; to provide for the term of indebtedness; to provide for delinquent assessment lists and payments of delinquent assessments; to prohibit the participation in mitigation plans for nonpayment of certain mitigation costs when due until paid in full; to revise provisions relating to the annexation of the lands and/or facilities of certain users of ground water into districts; to provide for exclusion of lands; to authorize ground water district boards to collect proportional shares of costs incurred under mitigation plans from holders of certain ground water rights where the Legislature has provided by law that such holders are to be deemed nonmember participants in the district solely for mitigation purposes; and to provide guidelines. 03/29 House intro - 1st rdg - to printing Rpt prt - to 2nd rdg Rls susp - PASSED - 60-7-3 AYES -- Anderson, Andrus, Barraclough, Bastian, Bayer, Bedke, Bell, Bilbao, Black, Block, Boe, Bolz, Bradford, Cannon, Chadderdon, Clark, Collins, Crow, Deal, Denney, Edmunson, Ellsworth, Eskridge, Field(18), Field(23), Garrett, Hart, Harwood, Henbest, Henderson, Jaquet, Kemp, Lake, Martinez, Mathews, McGeachin, Miller, Moyle, Nielsen, Pasley-Stuart, Pence, Raybould, Ring, Ringo, Roberts, Rusche, Rydalch, Sayler, Shepherd(2), Shepherd(8), Shirley, Skippen, Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Trail, Wills, Mr. Speaker NAYS -- Barrett, Jones, LeFavour, Loertscher, Mitchell, Sali, Schaefer Absent and excused -- McKague, Nonini, Wood Floor Sponsor - Stevenson Title apvd - to Senate 03/29 Senate intro - 1st rdg - to Res/Env 03/30 Rpt out - rec d/p - to 2nd rdg 03/31 2nd rdg - to 3rd rdg 04/06 3rd rdg - PASSED - 32-1-2 AYES -- Broadsword, Bunderson, Burkett, Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis, Fulcher(Fulcher), Geddes, Goedde, Hill, Jorgenson, Kelly, Keough, Langhorst, Little, Lodge, Malepeai, Marley, McGee, McKenzie, Pearce, Richardson, Schroeder, Stegner, Stennett, Sweet, Werk, Williams NAYS -- Brandt Absent and excused -- Andreason, Gannon Floor Sponsor - Cameron Title apvd - to House 04/06 To enrol 04/07 Rpt enrol - Sp/Pres signed - To Governor 04/12 Governor signed Session Law Chapter 367 Effective: 04/12/05
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-eighth Legislature First Regular Session - 2005 IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 394 BY WAYS AND MEANS COMMITTEE 1 AN ACT 2 RELATING TO GROUND WATER DISTRICTS; AMENDING SECTION 42-5201, IDAHO CODE, TO 3 REVISE A DEFINITION; AMENDING SECTION 42-5210, IDAHO CODE, TO PROVIDE FOR 4 VOTES OF CITY GOVERNMENTS; AMENDING SECTION 42-5212, IDAHO CODE, TO MAKE A 5 TECHNICAL CORRECTION; AMENDING SECTION 42-5214, IDAHO CODE, TO PROVIDE 6 THAT CERTAIN GROUND WATER IRRIGATORS SHALL BE MEMBERS OF GROUND WATER DIS- 7 TRICTS AND SUBJECT TO CERTAIN ASSESSMENTS, RIGHTS AND RESPONSIBILITIES, TO 8 PROVIDE FOR ORDERS OF THE BOARD RELATING TO INCLUSION OF CERTAIN GROUND 9 WATER IRRIGATORS IN GROUND WATER DISTRICTS, TO PROVIDE FOR NOTICE OF HEAR- 10 ING, TO PROVIDE FOR HEARING, TO PROVIDE FOR OBJECTIONS TO INCLUSION, TO 11 PROVIDE FOR THE CERTIFICATION AND FILING OF ORDERS OF INCLUSION, TO PRO- 12 VIDE FOR CERTAIN APPEALS, TO PROVIDE FOR CONCLUSIVENESS OF ORDERS OF 13 INCLUSION, TO PROVIDE THAT CERTAIN GROUND WATER IRRIGATORS INCLUDED AS 14 MEMBERS UPON ORDER OF THE BOARD SHALL BE LIABLE FOR SPECIFIED COSTS OF THE 15 DISTRICT, TO PROVIDE A CORRECT CODE REFERENCE, AND TO PROVIDE THAT CERTAIN 16 PERSONS WHO BECOME ENTITLED TO APPROPRIATE OR WHO APPROPRIATE GROUND WATER 17 AFTER THE FORMATION OF A GROUND WATER DISTRICT SHALL BE DEEMED INCLUDED IN 18 THE DISTRICT AND SUBJECT TO ASSESSMENTS AS OF A PARTICULAR DATE; AMENDING 19 SECTION 42-5219, IDAHO CODE, TO REDESIGNATE THE SECTION; AMENDING SECTION 20 42-5220, IDAHO CODE, TO REDESIGNATE THE SECTION; AMENDING SECTION 42-5221, 21 IDAHO CODE, TO REDESIGNATE THE SECTION; AMENDING SECTION 42-5222, IDAHO 22 CODE, TO REDESIGNATE THE SECTION; AMENDING CHAPTER 52, TITLE 42, IDAHO 23 CODE, BY THE ADDITION OF A NEW SECTION 42-5219, IDAHO CODE, TO PROVIDE FOR 24 DIRECTORS AT LARGE; AMENDING SECTION 42-5224, IDAHO CODE, TO AUTHORIZE 25 GROUND WATER DISTRICT BOARDS OF DIRECTORS TO INCUR SPECIFIED INDEBTEDNESS 26 ON BEHALF OF THE DISTRICT AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SEC- 27 TION 42-5233, IDAHO CODE, TO PROVIDE THAT THE TERM FOR INDEBTEDNESS RELAT- 28 ING TO THE FUNDING OF MITIGATION PLANS SHALL NOT EXCEED THIRTY YEARS; 29 AMENDING SECTION 42-5242, IDAHO CODE, TO PROVIDE THAT DELINQUENT ASSESS- 30 MENT LISTS SHALL BE DULY ACKNOWLEDGED BY GROUND WATER DISTRICT TREASURERS 31 AND TO PROVIDE REQUIREMENTS FOR THE TREASURER RELATING TO PAYMENTS IN FULL 32 OF DELINQUENT ASSESSMENTS AND PENALTIES; AMENDING SECTION 42-5244, IDAHO 33 CODE, TO PROHIBIT THE PARTICIPATION IN MITIGATION PLANS FOR NONPAYMENT OF 34 CERTAIN MITIGATION COSTS WHEN DUE UNTIL PAID IN FULL, TO REQUIRE GROUND 35 WATER DISTRICTS TO PROVIDE THE DIRECTOR OF THE DEPARTMENT OF WATER 36 RESOURCES WITH A REPORT OF PAST DUE MITIGATION COSTS, TO AUTHORIZE THE 37 DIRECTOR TO REQUIRE GROUND WATER DISTRICTS TO PROVIDE CERTAIN ACCOUNTINGS 38 AND TO REQUIRE GROUND WATER DISTRICTS TO INFORM THE DIRECTOR IMMEDIATELY 39 UPON PAYMENT OF PAST DUE MITIGATION COSTS; AMENDING SECTION 42-5245, IDAHO 40 CODE, TO REVISE PROVISIONS RELATING TO THE ANNEXATION OF THE LANDS AND/OR 41 FACILITIES OF CERTAIN USERS OF GROUND WATER INTO GROUND WATER DISTRICTS; 42 AMENDING SECTION 42-5251, IDAHO CODE, TO PROVIDE REQUIREMENTS FOR PETI- 43 TIONS FOR EXCLUSION OF LANDS AND TO PROVIDE REQUIREMENTS RELATING TO 44 ACTIONS ON PETITIONS FOR EXCLUSION OF LANDS BY DISTRICT BOARDS; AMENDING 45 SECTION 42-5253, IDAHO CODE, TO REVISE PROVISIONS AND REQUIREMENTS RELAT- 46 ING TO ORDERS OF EXCLUSION OF LANDS FROM GROUND WATER DISTRICTS; AMENDING 2 1 SECTION 42-5256, IDAHO CODE, TO PROVIDE FOR FILING OF ANY DECISIONS OR 2 ORDERS IN THE OFFICE OF SPECIFIED COUNTY RECORDERS; AMENDING SECTION 3 42-5259, IDAHO CODE, TO AUTHORIZE GROUND WATER DISTRICT BOARDS TO COLLECT 4 PROPORTIONAL SHARES OF COSTS INCURRED UNDER MITIGATION PLANS FROM HOLDERS 5 OF CERTAIN GROUND WATER RIGHTS WHERE THE LEGISLATURE HAS PROVIDED BY LAW 6 THAT SUCH HOLDERS ARE TO BE DEEMED NONMEMBER PARTICIPANTS IN THE DISTRICT 7 SOLELY FOR MITIGATION PURPOSES AND TO PROVIDE GUIDELINES; PROVIDING SEVER- 8 ABILITY; AND DECLARING AN EMERGENCY. 9 Be It Enacted by the Legislature of the State of Idaho: 10 SECTION 1. That Section 42-5201, Idaho Code, be, and the same is hereby 11 amended to read as follows: 12 42-5201. SHORT TITLE -- TITLE OF DISTRICTS -- DEFINITIONS. This chapter 13 is known as the "Ground Water District Act"; the districts created hereunder 14 may be termed "ground water districts." When used in this chapter, and unless 15 otherwise specified, the following terms shall be defined as follows: 16 (1) "Board" means the board of directors of a ground water district orga- 17 nized pursuant to this chapter. 18 (2) "Corporation" means a corporation or limited liability company. 19 (3) "County commission" means the board of county commissioners or any 20 other governing board or authority for a county, as provided by law. 21 (4) "Department" means the Idaho department of water resources. 22 (5) "Director" means the director of the department of water resources. 23 (6) "District" means a ground water district established, or to be estab- 24 lished, pursuant to this chapter. 25 (7) "Ground water" when used in this chapter means water under the sur- 26 face of the ground whatever may be the geologic structure in which it is 27 standing or moving, as provided in section 42-230(a), Idaho Code. 28 (8) "Ground water user" means the legal or beneficial owner of a ground 29 water right, or the user of a ground water right pursuant to lease or contract 30 of a ground water right to divert ground water of the state for a beneficial 31 use or purpose, except for those diverting under rights used solely for domes- 32 tic or stock use as defined by sections 42-111 and 42-1401A, Idaho Code, and 33 provided, that for purposes of this chapter, the term ground water user shall 34 not include any ground water right held by or on behalf of an Indian tribe or 35 by tribal members for diversion and use within an Indian reservation, ground 36 water rights held by the United States or ground water rights held by the 37 state of Idaho. A ground water user is within the boundary of a ground water 38 district if the well or other point of diversion used by that ground water 39 user is within the boundary. A husband and wife together diverting ground 40 water pursuant to right shall constitute one (1) ground water user. Ground 41 water user includes both a ground water irrigator and a nonirrigator as 42 defined in this chapter. 43 (9) "Ground water irrigator" means a ground water user holding a ground 44 water right for irrigation purposes within a ground water district. 45 (10) "Land" or "lands," when used in the context of the property of a 46 ground water user subject to district assessment under this chapter, means the 47 real property where ground water is diverted or placed to beneficial use, 48 including the facilities in or through which a ground water user makes benefi- 49 cial use of ground waters. 50 (11) "Nonirrigator" means a ground water user holding a ground water right 51 for commercial, municipal, or industrial purposes within a ground water dis- 52 trict. A ground water user will be deemed a nonirrigator for purposes of this 3 1 chapter even though: (a) some component of the user's ground water use is for 2 irrigation; or (b) the user holds a ground water right for irrigation that is 3 incidental to, or normally associated with, the user's commercial, municipal 4 or industrial purpose. 5 (12) "Member" means a ground water user whose lands, facilities and/or 6 water rights are included in and subject to a ground water district and its 7 policies. 8 (13) "Mitigation plan" means a plan to prevent or compensate for material 9 injury to holders of senior water rights caused by the diversion and use of 10 water by the holders of junior priority ground water rights who are partici- 11 pants in the mitigation plan. 12 (14) "Person" means an individual, partnership, trust, estate, associa- 13 tion, corporation, municipal corporation, the state of Idaho and any of its 14 agencies, the United States, an Indian tribe, a public corporation, or any 15 other public or private entity. 16 (15) "Public corporation" means counties, city and counties, cities, 17 school districts, municipal water districts, irrigation districts, recharge 18 districts, water districts, park districts, subdistricts, and all other gov- 19 ernmental agencies of this state, having the power of levying or providing for 20 the levy of general or special taxes or special assessments, and any political 21 subdivision of another state of the United States. 22 (16) "Water right" means the legal right to divert and beneficially use 23 the public waters of the state of Idaho where such right is evidenced by a 24 decree, a permit or a license issued by the department, a beneficial or con- 25 stitutional use right evidenced by an adjudication claim or claim based on 26 section 42-243, Idaho Code, or a right based on federal law. 27 SECTION 2. That Section 42-5210, Idaho Code, be, and the same is hereby 28 amended to read as follows: 29 42-5210. QUALIFICATIONS OF VOTERS FOR DISTRICT ELECTIONS. (1) Any ground 30 water irrigator, and any nonirrigator who is a member for all purposes, within 31 the proposed district shall be entitled to vote at any election held under the 32 provisions of this chapter. The production of documentation of a water right 33 as described in section 42-5201(16), Idaho Code, shall be sufficient evidence 34 of ground water use for purposes of acting as an elector under this chapter. A 35 representative of a ground water user shall be so designated by written proxy 36 signed by the ground water user except that the vote of a state, city or 37 county government may be cast by an elected or appointed official of the 38 agency, or his designee. A corporation or partnership shall vote or otherwise 39 act by a single individual who is authorized by the corporation or partnership 40 to act on its behalf. A corporation or partnership must furnish the election 41 officials a written designation stating the name of the individual who is 42 authorized to vote and otherwise act for the corporation or partnership. 43 (2) Any ground water user who becomes a member of a district solely for 44 mitigation purposes: 45 (a) Shall be entitled to vote only in those district elections concerning 46 whether to incur indebtedness as specified in section 42-5234, Idaho Code; 47 and 48 (b) Shall be ineligible to nominate directors or officers of the dis- 49 trict, to serve in such capacities, or otherwise to participate in the 50 governance of the district. 51 (3) A nonirrigator may participate in the election to determine whether a 52 district will be formed only according to the following provisions: 53 (a) The nonirrigator shall notify the judges of election in writing at 4 1 least ten (10) working days prior to the date of the election that such 2 person supports the formation of the district, elects to become either a 3 member for all purposes, or a member only for mitigation purposes as 4 described in section 42-5214, Idaho Code, should it be formed, and, by 5 such notice, casts its vote(s) in favor of formation. 6 (b) The notification shall contain a legal description of the land 7 through which the nonirrigator places ground waters to beneficial use, a 8 statement of the amount of such person's ground water right in cubic feet 9 per second of diversions, and a copy of the ground water right documenta- 10 tion described in section 42-5201(16), Idaho Code. 11 (c) Once the judges of election have accepted the notification described 12 in subsection (3)(b) of this section, they shall duly record the 13 nonirrigator's vote(s) in favor of district formation in the canvassing of 14 votes carried out pursuant to section 42-5213, Idaho Code. 15 (d) If the voting results in the formation of the district, the 16 nonirrigator who provided such notification thereafter shall be a full 17 member or member for mitigation purposes of such district, whichever the 18 case may be, and shall have all obligations, rights, and limitations 19 attaching thereto. 20 (4) Each ground water user shall have one (1) vote for each cubic foot 21 per second, or proportion thereof (rounded to the nearest tenth of a cubic 22 foot per second), for which such ground water user holds a ground water right 23 whose point of diversion is within the proposed district boundaries. 24 SECTION 3. That Section 42-5212, Idaho Code, be, and the same is hereby 25 amended to read as follows: 26 42-5212. REGISTRATION NOT REQUIRED. No registration shall be required in 27 any ground water district election, but in lieu thereof the judges of election 28 shall require every elector to subscribe to an elector's oath as prerequisite 29 to casting his vote, and such oath shall be the usual elector's oath with the 30 following words added thereto, "I am a resident of .......... county, and I am 31 a ground water user within the ....... (proposed) ground water district, or I 32 am a representative of a ground water user within the ....... (proposed) 33 ground water district" and present evidence of such ground water use pursuant 34 to section 42-5201(16), Idaho Code, if they do not appear on the department's 35 list as provided in section 42-5206, Idaho Code. 36 SECTION 4. That Section 42-5214, Idaho Code, be, and the same is hereby 37 amended to read as follows: 38 42-5214. GROUND WATER USERS INCLUDED WITHIN THE DISTRICT -- NOTICE AND 39 HEARING FOR MEMBERS INCLUDED IN DISTRICT AFTER MARCH 31, 2005 -- ORDER -- 40 APPEAL AND CONCLUSIVENESS. (1) All ground water irrigators within the bound- 41 aries of the district areshall be members of the district and subject to 42 assessments, rights and responsibilities established by the district as set 43 forth in this chapter, notwithstanding any change in the ownership or control 44 of the property of the water user, whether by way of transfer, exchange, con- 45 veyance, assignment, lease, or otherwise, to which the water right or rights 46 used to determine assessments are appurtenant, unless excluded from the dis- 47 trict pursuant to sections 42-5251 through 42-5257, Idaho Code. Except as pro- 48 vided in section 42-5276, Idaho Code, any ground water irrigator who previ- 49 ously was not a member as of March 31, 2005, shall be included as a member 50 effective upon order of the board finding and confirming that inclusion of 51 such ground water irrigator is in the best interests of the district and that 5 1 such ground water irrigator shall receive benefits from such inclusion as a 2 member. Such order may be made only after the board shall have caused a notice 3 of such hearing to be published in the manner of notices of elections, which 4 notice shall state that all persons interested in or that may be affected by 5 such inclusion as a member shall appear at the time and place named in the 6 notice and show cause in writing why they should not be included as a member. 7 The board, at the time mentioned in said notice shall hear any objections to 8 inclusion. The failure of any person to file with the district office an 9 objection to inclusion as a member prior to the noticed hearing shall be taken 10 as an assent on his part to such inclusion as a member of the district. Any 11 order confirming the inclusion of ground water irrigators as members of the 12 district shall be certified by the board president and secretary and filed for 13 record in the recorder's office of each county within which are situated any 14 lands of the district and notice of the order shall be published in the manner 15 of notices of elections. Any person who properly has filed an objection to 16 inclusion as a member shall have the right to appeal to the district court of 17 the county in which such person's ground water right is situated, provided 18 such appeal shall be made within thirty (30) days from the date of publication 19 of the order confirming such inclusion. After said thirty (30) day appeal 20 period, no one shall have any cause or right of action to contest the legal- 21 ity, formality or regularity of said order of inclusion for any reason whatso- 22 ever, and thereafter, said inclusion and the constitution and validity of the 23 district shall be considered valid and incontestable without limitation. Any 24 ground water irrigator who previously was not a member of the district as of 25 March 31, 2005, that is included as a member upon order of the board shall be 26 liable for his proportionate share of all costs of the district incurred after 27 such date, including his proportionate share of all bonded, warrant or other 28 indebtedness incurred prior to March 31, 2005, but only the proportionate 29 share of such prior indebtedness applicable to the period after March 31, 30 2005. 31 (2) All nonirrigators within the boundaries of the district who voted 32 according to notice as provided in section 42-5210(3), Idaho Code, are members 33 of the district as specified in such notice. 34 (3) A nonirrigator also may become a member of a district by providing, 35 within sixty (60) days after the date on which the district is formed, written 36 notice to the district board that the nonirrigator wishes to join the district 37 either as a member for all purposes or as a member for mitigation purposes 38 only. Upon providing such notice, the nonirrigator shall be either a member 39 for all purposes or a member for mitigation purposes only, as specified in the 40 notice, and shall be subject to assessment accordingly as provided in this 41 chapter. After such sixty (60) day period, a nonirrigator may become a member 42 of a district only through the annexation procedure described in sections 43 42-5245 through 42-5249, Idaho Code. 44 (4) Except as provided for municipal, commercial, industrial, federal and 45 tribal ground water users in subsection (1) of this section, any person whose 46 permit, license, or other entitlement to appropriate ground water was acquired 47 after the formation of the district, or who appropriates ground water for uses 48 not requiring a permit after the formation of the district, but qualifies as a 49 ground water user under subsection ( 108) of section 42-5201, Idaho Code, 50 within the area of the district in all other respects, shall be deemed 51 included within and subject to assessment by the district, if benefitted 52 either directly or indirectly by the district as of the date the permit, 53 license, or entitlement is acquired. 54 SECTION 5. That Section 42-5219, Idaho Code, be, and the same is hereby 6 1 amended to read as follows: 2 42-521 98A. WHEN ELECTION NOT REQUIRED. In any election for directors if, 3 after the expiration of the date for filing written nominations for the office 4 of director, it appears that only one (1) qualified candidate has been nomi- 5 nated thereby for each position to be filled, it shall not be necessary to 6 hold an election, and the board of directors shall, within five (5) days after 7 expiration of the date for filing written nominations, declare such candidate 8 elected as director. The procedure set forth in this section shall not apply 9 to any other district election. 10 SECTION 6. That Section 42-5220, Idaho Code, be, and the same is hereby 11 amended to read as follows: 12 42-52 2018B. NOTICE OF ELECTION. The secretary of the district shall give 13 notice of all elections in the district by posting the same in five (5) public 14 places in each county in which a part of the district is situated and in the 15 office of the board of directors at least four (4) weeks before the day of 16 such election, or by publication of the notice once a week for four (4) suc- 17 cessive weeks in a newspaper or newspapers published in each of said counties 18 or in a newspaper of general circulation therein. Notices shall state the time 19 of the election and the location of polling places within the district and the 20 directors to be elected or other question to be voted upon, as the case may 21 be. 22 SECTION 7. That Section 42-5221, Idaho Code, be, and the same is hereby 23 amended to read as follows: 24 42-52 218C. CONDUCT OF ELECTIONS. The election shall be conducted as 25 nearly as practicable in accordance with the general laws of the state; pro- 26 vided that no particular form of ballot shall be required and the provisions 27 of the election laws as to the form and distribution of ballots shall not 28 apply and each ballot must indicate the number of cubic feet per second asso- 29 ciated with the ballot cast. The board of directors shall designate polling 30 places in such number as it may deem necessary. At least ten (10) days before 31 the holding of any election, the board shall appoint three (3) electors to 32 serve as judges of election at each polling place. The judges shall perform 33 the same duties as near as may be, as judges of election under the general 34 laws of the state. Immediately after the election, the judges of election 35 shall forward the official results to the secretary of the district. 36 SECTION 8. That Section 42-5222, Idaho Code, be, and the same is hereby 37 amended to read as follows: 38 42-52 2218D. CANVASS OF RETURNS -- DECLARATION OF WINNERS. On the first 39 Monday after each election, or at a time designated by the board of directors, 40 the board shall meet at its usual place of meeting and proceed to canvass the 41 returns. By order entered on its minutes, the board shall declare elected the 42 person or persons having the highest number of votes for each office. 43 SECTION 9. That Chapter 52, Title 42, Idaho Code, be, and the same is 44 hereby amended by the addition thereto of a NEW SECTION, to be known and des- 45 ignated as Section 42-5219, Idaho Code, and to read as follows: 46 42-5219. DIRECTORS AT LARGE. In the event a district is divided into six 7 1 (6) or fewer divisions, the district is authorized to elect one (1) to two (2) 2 directors at large. Directors at large shall be elected at the annual meeting 3 of the district by a two-thirds (2/3) majority of the members present at the 4 meeting. Every director at large elected pursuant to the provisions of this 5 section shall be a ground water user in the district. Directors at large shall 6 hold office for a term of two (2) years, or until their successors are elected 7 and qualified. Provided however, that in no event shall a district have more 8 than a total of seven (7) directors serving at any time whether elected pursu- 9 ant to the provisions of section 42-5218, Idaho Code, or pursuant to this sec- 10 tion. 11 SECTION 10. That Section 42-5224, Idaho Code, be, and the same is hereby 12 amended to read as follows: 13 42-5224. POWERS AND DUTIES OF BOARD OF DIRECTORS. The board shall, in 14 addition to any other powers and duties provided in this chapter, and provided 15 that nothing in this chapter shall abrogate or impair the right of any person 16 to take any action necessary to acquire, protect, challenge or defend any 17 water right, have the following powers and duties: 18 (1) To acquire, and/or construct, operate, control or use by appropria- 19 tion, grant, purchase, bequest, devise, contract or lease works or facilities, 20 water rights, water permits or licenses, well-drilling permits, wells, pipe- 21 lines, ditches and any other real and personal property (including easements 22 and rights-of-way) or contract entitlement within or without the district nec- 23 essary or convenient to fully exercise its powers; 24 (2) To sell, lease, encumber, alienate, or otherwise dispose of works or 25 facilities, water, water rights, wells, pipelines, ditches, reservoirs, 26 recharge facilities, and any other real and personal property owned by the 27 district within or without its boundaries, and to incur indebtedness on behalf 28 of the district as specified in this chapter; 29 (3) To enter into contracts and agreements, cooperative and otherwise, 30 including contracts with the United States of America and any of its agencies 31 or instrumentalities, and tribes, and contracts with corporations, public or 32 private, municipalities, or governmental subdivisions necessary or convenient 33 to fully exercise its powers; 34 (4) To hire and retain agents, employees, engineers, hydrologists, geolo- 35 gists, and attorneys as shall be necessary and convenient to transact the 36 district's business and to represent the district's interests; 37 (5) To levy assessments for the operation of the district and its pro- 38 grams; 39 (6) To represent district members, with respect to their individual water 40 rights, in general water rights adjudications and other legal and administra- 41 tive proceedings or before political bodies, provided that the board may levy 42 assessments for these matters against only those members who have given writ- 43 ten consent for the representation; 44 (7) To represent district members in proceedings or meetings of a water 45 district established by the director of the department notwithstanding any 46 provision to the contrary in chapter 6, title 42, Idaho Code. Provided how- 47 ever, that the board shall not be authorized to cast a vote in any proceeding 48 or meeting of a water district established pursuant to chapter 6, title 42, 49 Idaho Code, on behalf of any district member who has, prior to such proceeding 50 or meeting, given written notice to the board and to the water district that 51 such district member intends to vote on his own behalf, or on behalf of any 52 district member who attends such meeting or proceeding and intends to vote on 53 his own behalf. The board shall provide a verified list of the water rights 8 1 that it represents at any water district proceeding or meeting to the chairman 2 of the water district proceeding or meeting .; 3 (8) To appropriate, develop, store, and transport water within the state; 4 (9) To acquire stock in canal companies, water companies, and water 5 users' associations; 6 (10) To invest any surplus money in the district treasury pursuant to the 7 public depository law as contained in chapter 1, title 57, Idaho Code; 8 (11) To develop, maintain, operate and implement mitigation plans designed 9 to mitigate any material injury caused by ground water use within the district 10 upon senior water uses within and/or without the district; 11 (12) To finance the repair or abandonment of wells in the ground water 12 district which have experienced or are experiencing declines in water level or 13 water pressures because of reasons including, but not limited to, flow, leak- 14 age, and waste from improper construction, maintenance, and operation of 15 wells; 16 (13) To have and exercise the power of eminent domain in the manner pro- 17 vided by law for the condemnation of private property for easements, rights- 18 of-way, and other rights of access to property necessary to the exercise of 19 the mitigation powers herein granted, both within and without the district; 20 (14) To sue and be sued, and be a party to suits, actions and proceedings; 21 (15) To enter into joint powers agreements and/or memoranda of understand- 22 ing with other districts, governmental or quasi-public entities; 23 (16) To develop and acquire water rights for, and operate, aquifer storage 24 or recharge projects; 25 (17) To monitor, measure, study, and implement programs in the interests 26 of the district's members regarding the protection of ground water diversions, 27 depth of water in wells, aquifer water levels and characteristics; 28 (18) To adopt and amend bylaws not in conflict with the constitution and 29 laws of the state for carrying on the business, objects and affairs of the 30 board and of the district and to establish a fiscal year; 31 (19) To enter upon land to make surveys, locate district property, works, 32 or facilities, and to otherwise conduct the affairs of the district; 33 (20) To make, record and report annually to the director sufficient mea- 34 surements of diversions and water levels of district members to allow the dis- 35 trict to be excluded from any water measurements district created pursuant to 36 sections 42-705 through 42-715, Idaho Code .; 37 (21) To manage and conduct the affairs of the district and to have and 38 exercise all rights and powers necessary or incidental to or implied from the 39 specific powers granted herein. Such specific powers shall not be considered 40 as a limitation upon any power necessary or appropriate to carry out the pur- 41 poses and intent of this actchapter. 42 SECTION 11. That Section 42-5233, Idaho Code, be, and the same is hereby 43 amended to read as follows: 44 42-5233. POWER TO INCUR INDEBTEDNESS -- ASSESSMENTS TO SECURE REPAYMENT 45 -- WARRANTS. (1) In order to secure funds for the mitigation plan or plans for 46 the district, the board of directors may, by resolution duly adopted and 47 entered upon the minutes, incur indebtedness by contract with a money lending 48 institution; provided however, that the term of such indebtedness shall not 49 exceed tenthirty ( 130) years. To secure the repayment of any indebtedness so 50 incurred, the board shall levy assessments over the term of the indebtedness 51 in amounts sufficient to repay the interest and principal as it falls due. 52 Such assessments shall be levied in the manner and shall be subject to the 53 limitations set forth in section 42-5232, Idaho Code, and may be levied only 9 1 if the indebtedness has been approved at an election pursuant to sections 2 42-5234 through 42-5238, Idaho Code. 3 (2) Notwithstanding the provisions of subsection (1) of this section, the 4 board of directors may, before the collection of the first assessment, incur 5 indebtedness for the purpose of organization, or for any of the purposes of 6 this chapter, and cause warrants of the district to issue therefor, provided 7 that the total dollar amount of the warrants authorized to be issued shall not 8 exceed one dollar ($1.00) for each two-hundredths (.02) of a cubic foot per 9 second of ground water authorized to be diverted and used upon lands or facil- 10 ities located within the district. Following the collection of the first 11 assessment, the board of directors may at any time issue warrants of the dis- 12 trict for the purpose of paying claims of indebtedness against the district, 13 including salaries of officers and employees, not to exceed the district's 14 anticipated revenue. 15 (3) The warrants herein authorized shall be in form and substance the 16 same as county warrants or as nearly the same as may be practicable and shall 17 be signed by the chairman and attested by the secretary of said board. All 18 such warrants shall be presented by the holder thereof to the treasurer of the 19 district for payment who shall endorse thereon the day of presentation for 20 payment with the additional endorsement thereon, in case of nonpayment, that 21 they are not paid for want of funds, and such warrants shall draw interest at 22 a rate to be established by the board of directors from the date of their pre- 23 sentation to the treasurer for payment as aforesaid until such warrants are 24 paid. No warrants shall be issued in payment of any indebtedness of such dis- 25 trict for less than face or par value. It shall be the duty of the treasurer 26 from time to time when sufficient funds are available for that purpose to 27 advertise in a newspaper in the county in which the district is situated 28 requiring the presentation to the treasurer for payment of as many of the out- 29 standing warrants as are able to be paid. Ten (10) days after the first publi- 30 cation of said notice by the treasurer calling in any of said outstanding war- 31 rants, said warrants shall cease to bear interest, which shall be stated in 32 the notice. Said notice shall be published two (2) weeks consecutively and 33 said warrants shall be called in and paid in the order of their endorsement. 34 SECTION 12. That Section 42-5242, Idaho Code, be, and the same is hereby 35 amended to read as follows: 36 42-5242. ENTRY OF DELINQUENT ASSESSMENTS -- FILING OF DELINQUENCY LIST. 37 (1) On or before the 15th day of January of each year the treasurer shall 38 enter the amount of all delinquent assessments upon the assessment book, which 39 entry shall be considered to be dated as of the first day of January. Such 40 entry shall have the force and effect of a sale to the treasurer of the dis- 41 trict as grantee in trust for the district of all property to which a lien has 42 attached as a result of such unpaid assessments. 43 (2) The treasurer shall compile a list of such delinquency entries which 44 shall contain the names of the persons or entities to whom the assessments 45 were directed and the amount of such delinquent assessments together with the 46 amount of the penalties to be added thereto. A certified copy of the delin- 47 quency list, duly acknowledged by the treasurer, shall be filed with the 48 county recorder of each county in which the properties affected by such delin- 49 quent assessments are located, and the treasurer shall then provide by certi- 50 fied mail a notice of delinquency to each ground water user having a delin- 51 quent assessment. 52 (3) Upon the payment in full of any delinquent assessment and penalty 53 that was entered on a recorded delinquency list, the treasurer shall file with 10 1 the county recorder of each county in which the list of delinquent assessments 2 was recorded an acknowledged notice that the delinquent assessment and any 3 penalty owed has been paid in full. The treasurer shall file any notices of 4 payment of delinquent assessments with the county recorders, as required, on 5 at least a monthly basis. 6 SECTION 13. That Section 42-5244, Idaho Code, be, and the same is hereby 7 amended to read as follows: 8 42-5244. PROHIBITION AGAINST PARTICIPATION IN MITIGATION PLAN WHEN SUB- 9 JECT TO DELINQUENT ASSESSMENT OR FOR NONPAYMENT OF OTHER MITIGATION COSTS. A 10 ground water user who is delinquent in the payment of any assessment against 11 his water use under this chapter, or who has failed to pay other mitigation 12 costs owed to the district when due, is prohibited from being a participant in 13 any mitigation plan until such delinquent assessment, or other past due amount 14 owed for mitigation costs, is paid in full. The district shall provide the 15 director a report of such delinquent assessments, or other past due mitigation 16 costs, at the first of each month for purposes of enforcement. Prior to under- 17 taking enforcement, the director may require from the district an accounting 18 of the basis for the assessment and other mitigation costs and the apportion- 19 ment of those assessments and costs among district members. The district shall 20 inform the director immediately upon the payment of any such delinquent 21 assessment, or other past due mitigation costs. This section shall be 22 enforced by the watermaster within water districts established under chapter 6 23 of this title, and by the director pursuant to sections 42-351 and 42-1701B, 24 Idaho Code, in areas outside of such water district. 25 SECTION 14. That Section 42-5245, Idaho Code, be, and the same is hereby 26 amended to read as follows: 27 42-5245. PETITION FOR ANNEXATION OF LAND. Any ground water user, as 28 defined in section 42-5201(8), Idaho Code, as well as any user of ground water 29 for domestic or stock use as defined by sections 42-111 and 42-1401A, Idaho 30 Code, may file with the board a petition in writing praying that the land 31 and/or facilities listed under the ground water user's ground water right(s) 32 may be annexed into the district. The petition shall contain a legal descrip- 33 tion of the lands and any other information the district may require, and the 34 petitioner shall state under oath that petitioner holds the title to said 35 lands. If the ground water user is a nonirrigator, the petition shall state if 36 the ground water user is seeking to join the district solely to participate in 37 the district's mitigation plan or other mitigation activities. 38 SECTION 15. That Section 42-5251, Idaho Code, be, and the same is hereby 39 amended to read as follows: 40 42-5251. PETITION FOR EXCLUSION OF LANDS -- LANDS MAY REMAIN IN THE DIS- 41 TRICT FOR MITIGATION PURPOSES. Any district member may file with the district 42 board a petition requesting that the member's lands be excluded from the dis- 43 trict. The petition may request that the lands either be excluded for all pur- 44 poses or be excluded for all purposes except mitigation. The petition shall be 45 signed by each petitioner, but need not be acknowledgedand shall state that 46 continued inclusion of the lands in the district is inappropriate or unwar- 47 ranted: 48 (1) Because the diversions of ground water under the ground water users 49 water right have no depletive effect on any water source, either individually 11 1 or cumulatively when considered in conjunction with other similar diversions; 2 (2) Because the only ground water use associated with the lands sought to 3 be excluded by the petition is a domestic or stock water use as defined by 4 sections 42-111 and 42-1401A, Idaho Code; 5 (3) Because the exclusion of the lands will not impair the district's 6 ability to repay debt or carry out mitigation plans; 7 (4) Because the exclusion is in the best interests of the district and 8 its members; or 9 (5) For other compelling reasons. 10 The board shall consider the petition and, based on findings concerning such 11 factors, the board shall grant or deny the petition within ninety (90) days of 12 the date it is filed, unless the board, in its sole discretion, grants a hear- 13 ing on the petition within such time period, in which case the board shall 14 issue a final decision within sixty (60) days after the conclusion of the 15 hearing. All costs incurred by the district in carrying out the exclusion pro- 16 ceeding shall be assessed as provided in section 42-5253, Idaho Code. A per- 17 son purchasing land under a written contract shall be deemed to be the owner 18 of that land for purposes of this section. 19 SECTION 16. That Section 42-5253, Idaho Code, be, and the same is hereby 20 amended to read as follows: 21 42-5253. ORDER OF EXCLUSION. (1) Upon receipt of a properly completed22 petition for exclusion,In the event the district's board of directors grants 23 a petition for exclusion, the board shall, by resolution, shallmake an order 24 forthwith excluding the lands described in the petition either for all pur- 25 poses or for only those purposes not related to mitigation. No hearing is 26 required prior to granting a petition for exclusion. 27 (2) At a minimum, the order of exclusion shall specify that: 28 (a) Lands excluded for all purposes shall not be a part of or be entitled 29 to receive any benefits from the district; 30 (b) Lands excluded only for purposes not related to mitigation, shall 31 continue to be part of the district for mitigation purposes only and shall 32 be assessed for these purposes as provided under this chapter; 33 (c) Any excluded lands are subject to the requirements of section 34 42-5257, Idaho Code. 35 (d) When the petition is filed on or before December 1 in any calendar 36 year, any assessment, other than those specified in section 42-5257, Idaho 37 Code, against the land for any calendar year subsequent to the year in 38 which the petition was filed shall not be valid and no lien for any such 39 attempted assessment shall attach under section 42-5240, Idaho Code. 40 SECTION 17. That Section 42-5256, Idaho Code, be, and the same is hereby 41 amended to read as follows: 42 42-5256. CHANGES TO BE FILED FOR RECORD. TheAny decision and order of 43 the board of directors or the district court, in case of appeal, excluding the 44 petitioner's land and changing the boundaries of such ground water district 45 shall be filed for record in the recorder's office of the county or counties 46 within which are situated the lands of such ground water district. 47 SECTION 18. That Section 42-5259, Idaho Code, be, and the same is hereby 48 amended to read as follows: 49 42-5259. PARTICIPATION BY NONMEMBER IN DISTRICT SOLELY FOR MITIGATION 12 1 PURPOSES. (1) Upon written request from a ground water user who is not a mem- 2 ber of a district, and regardless of whether such user is an irrigator, a dis- 3 trict board of directors shall enter a contract with such nonmember pursuant 4 to which the nonmember shall be allowed to participate fully in, and obtain 5 all benefits of, any mitigation plan, purpose or activity the district cur- 6 rently has in force or is developing, provided that: 7 ( 1a) The board finds that the plan is likely to be effective in mitigat- 8 ing the effects of such nonmember's ground water use, and that including 9 the nonmember within the mitigation plan's coverage will not impair the 10 plan's effectiveness as to district members; 11 ( 2b) If the district's mitigation plan has been approved by the director, 12 the board shall evaluate the contract request in accordance with any con- 13 ditions of the district's mitigation plan which address equitable partici- 14 pation by ground water users who do not initially participate in such mit- 15 igation plan; 16 ( 3c) Before the contract may be effective, the board may collect from the 17 nonmember a payment adequate to compensate the district for the 18 nonmember's proportional share of the costs the district already has 19 incurred in developing and implementing the mitigation plan; 20 ( 4d) The board may include in the contract a provision requiring the non- 21 member to pay a reasonable surcharge, either annually or on some other 22 basis, to reimburse the district for such nonmember's proportional share 23 of those past or future costs of operating the district attributable to 24 formulating or implementing the mitigation plan or plans in which the non- 25 member is participating; 26 ( 5e) The board may require the nonmember to provide security to assure 27 the payment of all assessments and charges related to the contract; 28 ( 6f) Nothing in this section shall be interpreted to limit the district's 29 ability to enter into a contract with nonmembers pursuant to terms and 30 conditions acceptable to both parties. 31 (2) If the legislature has provided by law that the holders of certain 32 ground water rights not otherwise covered by a mitigation plan approved by the 33 director of the department of water resources shall be deemed nonmember par- 34 ticipants in the district solely for mitigation purposes, then the district 35 may collect a proportional share of the costs incurred under the mitigation 36 plan from the nonmember participants, as follows: 37 (a) The board may collect from each nonmember participant a payment ade- 38 quate to compensate the district for the nonmember's proportional share of 39 the past itemized costs the district has incurred in developing and imple- 40 menting the mitigation plan; 41 (b) The board may require the nonmember to pay a reasonable surcharge, 42 either annually or on some other basis, to reimburse the district for the 43 nonmember's proportional share of those past or future itemized costs of 44 operating the district attributable to formulating or implementing the 45 mitigation plan or plans in which the nonmember is participating; 46 (c) The board may require that the nonmember pay the amounts owed under 47 this section before coverage under the mitigation plan is effective, pro- 48 vided the board has notified the nonmember by mail of the amount owed at 49 least forty-two (42) days prior to the due date; 50 (d) As an alternative to immediate payment of the amount owed, the board 51 may accept security from the nonmember to assure that payment of all costs 52 and charges owed by the nonmember under this section shall be paid by a 53 fixed later date; 54 (e) Nothing in this section shall be interpreted to limit the district's 55 ability to enter into a contract with nonmembers pursuant to terms and 13 1 conditions acceptable to both parties; 2 (f) The board shall have the right to collect any costs and charges due 3 and unpaid under this section by civil action brought in the name of the 4 district in any court of competent jurisdiction. In addition to the amount 5 found due, together with interest and costs, the district also may recover 6 such sum as the court may adjudge reasonable as attorney's fees in said 7 action. 8 SECTION 19. SEVERABILITY. The provisions of this act are hereby declared 9 to be severable and if any provision of this act or the application of such 10 provision to any person or circumstance is declared invalid for any reason, 11 such declaration shall not affect the validity of the remaining portions of 12 this act. 13 SECTION 20. An emergency existing therefor, which emergency is hereby 14 declared to exist, this act shall be in full force and effect on and after its 15 passage and approval.
STATEMENT OF PURPOSE RS 15226 This legislation proposes four changes to Chapter 52, Title 42, Idaho Code. The first change would allow for the election of two directors-at-large by a two-thirds majority at the annual meeting of a Ground Water District. The intent is to allow broader decision-bases in those districts where the demographics do not support seven directors. The second change would allow ground water districts to increase their indebtedness from 10 to 30 years under 42-5233, Idaho Code. The third change addresses several concerns relating to the operation of Ground Water Districts. Existing law would be amended to provide that a delinquent assessment list be acknowledged by the district treasurer before it is filed with the county recorder, and that upon payment of a delinquent assessment the treasurer also files notice of the payment with the county recorder. The legislation provides a procedure through which a Ground Water District will collect mitigation costs from nonmember participants. The legislature has provided by previous law that the holders of certain ground water rights not otherwise covered by a mitigation plan shall be deemed nonmember participants in the district solely for mitigation purposes. The fourth change enables the director of IDWR to review the charges for nonmember participants on the basis of other mitigation costs and apportionment of those assessments and costs among all district members. FISCAL NOTE Enactment of this legislation will have no effect upon the state's general fund or other state or local funds. This will increase the costs for those ground water users who are not presently covered under a mitigation plan. Contact Name: Representative John A. Stevenson Phone: 332-1000 Lynn Tominaga, Idaho Ground Water Appropriators, Inc. Phone: 381-0294 STATEMENT OF PURPOSE/FISCAL NOTE H 394