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H0372aa...................................................by WAYS AND MEANS
GROUND WATER DISTRICTS - Amends existing law relating to ground water
districts to provide for the inclusion or exclusion of lands of certain
ground water users in districts; to revise provisions relating to the
qualification of voters for district elections; to provide that specified
ground water users shall be considered members of districts and subject to
certain assessments; to provide for hearings, notice, orders, appeals and
conclusiveness; to provide for directors at large; to authorize district
boards to incur indebtedness on behalf of the district; to authorize ground
water boards to levy assessments that adjust a member's proportionate share
to take into consideration individual mitigation plans; to provide that the
term for indebtedness relating to the funding of mitigation plans shall not
exceed thirty years; to provide requirements for the treasurer relating to
delinquent assessments and penalties; to prohibit the participation in
mitigation plans for nonpayment of mitigation costs when due until paid in
full; to require districts to provide the director of the Department of
Water Resources with a report of past due mitigation costs and to inform
the director upon payment of such costs; to authorize the director to
require districts to provide accountings; to revise provisions relating to
the annexation of the lands and/or facilities of certain users of ground
water into districts and related assessments; to provide for petitions for
exclusion of lands, action on such petitions and assessments and
obligations related to excluded lands; to provide that certain irrigation
districts shall be included in ground water districts only upon filing of a
petition for annexation; and to provide for severability.
03/22 House intro - 1st rdg - to printing
03/23 Rpt prt - to Res/Con
03/24 Rpt out - to Gen Ord
Rpt out amen - to engros
03/28 Rpt engros - 1st rdg - to 2nd rdg as amen
03/29 2nd rdg - to 3rd rdg as amen
Ret'd to Res/Con
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature First Regular Session - 2005
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 372
BY WAYS AND MEANS COMMITTEE
1 AN ACT
2 RELATING TO GROUND WATER DISTRICTS; AMENDING SECTION 42-5201, IDAHO CODE, TO
3 REVISE DEFINITIONS; AMENDING SECTION 42-5207, IDAHO CODE, TO PROVIDE FOR
4 THE INCLUSION OR EXCLUSION OF LANDS OF CERTAIN GROUND WATER USERS IN
5 GROUND WATER DISTRICTS; AMENDING SECTION 42-5210, IDAHO CODE, TO REVISE
6 GROUND WATER DISTRICT VOTER QUALIFICATION PROVISIONS FOR GROUND WATER
7 USERS, TO PROVIDE FOR VOTES OF CITY GOVERNMENTS AND TO PROVIDE A CORRECT
8 CODE REFERENCE; AMENDING SECTION 42-5212, IDAHO CODE, TO PROVIDE A CORRECT
9 CODE REFERENCE AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION
10 42-5214, IDAHO CODE, TO REVISE PROVISIONS RELATING TO GROUND WATER USERS
11 TO BE CONSIDERED MEMBERS OF GROUND WATER DISTRICTS AND SUBJECT TO CERTAIN
12 ASSESSMENTS, TO PROVIDE AN EFFECTIVE DATE OF MEMBERSHIP FOR CERTAIN USERS,
13 TO PROVIDE THAT CERTAIN PERSONS WHO BECOME ENTITLED TO APPROPRIATE OR WHO
14 APPROPRIATE GROUND WATER AFTER THE FORMATION OF A GROUND WATER DISTRICT
15 SHALL BE DEEMED INCLUDED IN THE DISTRICT AND SUBJECT TO ASSESSMENTS AS OF
16 A PARTICULAR DATE AND TO PROVIDE A CORRECT CODE REFERENCE; AMENDING SEC-
17 TION 42-5219, IDAHO CODE, TO REDESIGNATE THE SECTION; AMENDING SECTION
18 42-5220, IDAHO CODE, TO REDESIGNATE THE SECTION; AMENDING SECTION 42-5221,
19 IDAHO CODE, TO REDESIGNATE THE SECTION; AMENDING SECTION 42-5222, IDAHO
20 CODE, TO REDESIGNATE THE SECTION; AMENDING CHAPTER 52, TITLE 42, IDAHO
21 CODE, BY THE ADDITION OF A NEW SECTION 42-5219, IDAHO CODE, TO PROVIDE FOR
22 DIRECTORS AT LARGE; AMENDING SECTION 42-5224, IDAHO CODE, TO AUTHORIZE
23 GROUND WATER DISTRICT BOARDS OF DIRECTORS TO INCUR SPECIFIED INDEBTEDNESS
24 ON BEHALF OF THE DISTRICT AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SEC-
25 TION 42-5232, IDAHO CODE, TO REVISE PROVISIONS RELATING TO THE LEVY OF
26 ASSESSMENTS; AMENDING SECTION 42-5233, IDAHO CODE, TO PROVIDE THAT THE
27 TERM FOR INDEBTEDNESS RELATING TO THE FUNDING OF MITIGATION PLANS SHALL
28 NOT EXCEED THIRTY YEARS; AMENDING SECTION 42-5242, IDAHO CODE, TO PROVIDE
29 THAT DELINQUENT ASSESSMENT LISTS SHALL BE DULY ACKNOWLEDGED BY GROUND
30 WATER DISTRICT TREASURERS AND TO PROVIDE REQUIREMENTS FOR THE TREASURER
31 RELATING TO PAYMENTS IN FULL OF DELINQUENT ASSESSMENTS AND PENALTIES;
32 AMENDING SECTION 42-5244, IDAHO CODE, TO PROHIBIT THE PARTICIPATION IN
33 MITIGATION PLANS FOR NONPAYMENT OF CERTAIN MITIGATION COSTS WHEN DUE UNTIL
34 PAID IN FULL, TO REQUIRE GROUND WATER DISTRICTS TO PROVIDE THE DIRECTOR OF
35 THE DEPARTMENT OF WATER RESOURCES WITH A REPORT OF PAST DUE MITIGATION
36 COSTS, TO AUTHORIZE THE DIRECTOR TO REQUIRE GROUND WATER DISTRICTS TO PRO-
37 VIDE CERTAIN ACCOUNTINGS AND TO REQUIRE GROUND WATER DISTRICTS TO INFORM
38 THE DIRECTOR IMMEDIATELY UPON PAYMENT OF PAST DUE MITIGATION COSTS; AMEND-
39 ING SECTION 42-5245, IDAHO CODE, TO REVISE PROVISIONS RELATING TO THE
40 ANNEXATION OF THE LANDS AND/OR FACILITIES OF CERTAIN USERS OF GROUND WATER
41 INTO GROUND WATER DISTRICTS; AMENDING SECTION 42-5248, IDAHO CODE, TO
42 REVISE PROVISIONS RELATING TO ASSESSMENTS AGAINST ANNEXED LANDS; AMENDING
43 SECTION 42-5251, IDAHO CODE, TO PROVIDE FOR ACTION ON PETITIONS FOR EXCLU-
44 SION OF LANDS FROM GROUND WATER DISTRICTS BY DISTRICT BOARDS, TO PROVIDE
45 REQUIREMENTS FOR PETITIONS FOR EXCLUSION OF LANDS AND TO PROVIDE REQUIRE-
46 MENTS RELATING TO ACTIONS ON PETITIONS FOR EXCLUSION OF LANDS BY DISTRICT
2
1 BOARDS; AMENDING SECTION 42-5252, IDAHO CODE, TO REVISE REQUIREMENTS
2 RELATING TO CONTENTS OF PETITIONS FOR EXCLUSION OF LANDS AND/OR FACILITIES
3 FROM GROUND WATER DISTRICTS; AMENDING SECTION 42-5253, IDAHO CODE, TO
4 REVISE PROVISIONS AND REQUIREMENTS RELATING TO ORDERS OF EXCLUSION OF
5 LANDS FROM GROUND WATER DISTRICTS; AMENDING SECTION 42-5256, IDAHO CODE,
6 TO PROVIDE FOR FILING OF ANY DECISIONS OR ORDERS IN THE OFFICE OF SPECI-
7 FIED COUNTY RECORDERS; AMENDING SECTION 42-5257, IDAHO CODE, TO PROVIDE
8 THAT LAND AND/OR FACILITIES FULLY EXCLUDED FROM GROUND WATER DISTRICTS
9 SHALL BE SUBJECT TO CERTAIN ASSESSMENTS AND OBLIGATIONS; AMENDING SECTION
10 42-5259, IDAHO CODE, TO DELETE A REFERENCE TO IRRIGATORS; REPEALING SEC-
11 TION 42-5276, IDAHO CODE; PROVIDING SEVERABILITY; AND DECLARING AN EMER-
12 GENCY.
13 Be It Enacted by the Legislature of the State of Idaho:
14 SECTION 1. That Section 42-5201, Idaho Code, be, and the same is hereby
15 amended to read as follows:
16 42-5201. SHORT TITLE -- TITLE OF DISTRICTS -- DEFINITIONS. This chapter
17 is known as the "Ground Water District Act"; the districts created hereunder
18 may be termed "ground water districts." When used in this chapter, and unless
19 otherwise specified, the following terms shall be defined as follows:
20 (1) "Board" means the board of directors of a ground water district orga-
21 nized pursuant to this chapter.
22 (2) "Corporation" means a corporation or limited liability company.
23 (3) "County commission" means the board of county commissioners or any
24 other governing board or authority for a county, as provided by law.
25 (4) "Department" means the Idaho department of water resources.
26 (5) "Director" means the director of the department of water resources.
27 (6) "District" means a ground water district established, or to be estab-
28 lished, pursuant to this chapter.
29 (7) "Ground water" when used in this chapter means water under the sur-
30 face of the ground whatever may be the geologic structure in which it is
31 standing or moving, as provided in section 42-230(a), Idaho Code.
32 (8) "Ground water user" means the legal or beneficial owner of a ground
33 water right, or the user of a ground water right pursuant to lease or contract
34 of a ground water right to divert ground water of the state for a beneficial
35 use or purpose, except for those diverting under rights used solely for domes-
36 tic or stock use as defined by sections 42-111 and 42-1401A, Idaho Code. A
37 ground water user is within the boundary of a ground water district if the
38 well or other point of diversion used by that ground water user is within the
39 boundary. A husband and wife together diverting ground water pursuant to right
40 shall constitute one (1) ground water user. Ground water user includes both a
41 ground water irrigator and a nonirrigator as defined in this chapter.
42 (9) "Ground water irrigator" means a ground water user holding a ground
43 water right for irrigation purposes within a ground water district.
44 (10) "Land" or "lands," when used in the context of the property of a
45 ground water user subject to district assessment under this chapter, means the
46 real property where ground water is diverted or placed to beneficial use,
47 including the facilities in or through which a ground water user makes benefi-
48 cial use of ground waters.
49 (11) "Nonirrigator" means a ground water user holding a ground water right
50 for commercial, municipal, or industrial purposes within a ground water dis-
51 trict. A ground water user will be deemed a nonirrigator for purposes of this
52 chapter even though: (a) some component of the user's ground water use is for
3
1 irrigation; or (b) the user holds a ground water right for irrigation that is
2 incidental to, or normally associated with, the user's commercial, municipal
3 or industrial purpose.
4 (120) "Member" means a ground water user whose lands, facilities and/or
5 water rights are included in and subject to a ground water district and its
6 policies.
7 (131) "Mitigation plan" means a plan to prevent or compensate for material
8 injury to holders of senior water rights caused by the diversion and use of
9 water by the holders of junior priority ground water rights who are partici-
10 pants in the mitigation plan.
11 (142) "Person" means an individual, partnership, trust, estate, associa-
12 tion, corporation, municipal corporation, the state of Idaho and any of its
13 agencies, the United States, an Indian tribe, a public corporation, or any
14 other public or private entity.
15 (153) "Public corporation" means counties, city and counties, cities,
16 school districts, municipal water districts, irrigation districts, recharge
17 districts, water districts, park districts, subdistricts, and all other gov-
18 ernmental agencies of this state, having the power of levying or providing for
19 the levy of general or special taxes or special assessments, and any political
20 subdivision of another state of the United States.
21 (164) "Water right" means the legal right to divert and beneficially use
22 the public waters of the state of Idaho where such right is evidenced by a
23 decree, a permit or a license issued by the department, a beneficial or con-
24 stitutional use right evidenced by an adjudication claim or claim based on
25 section 42-243, Idaho Code, or a right based on federal law.
26 SECTION 2. That Section 42-5207, Idaho Code, be, and the same is hereby
27 amended to read as follows:
28 42-5207. ORGANIZATION HEARING BEFORE COUNTY COMMISSION -- ORDER OF COUNTY
29 COMMISSION. (1) After receiving the report of the department of water
30 resources, the county commission shall conduct a hearing on the petition. If
31 the county commission determines that the requisite number of signatures were
32 not gathered on the petition, the board shall adjourn the hearings for two (2)
33 weeks for the purpose of enabling the petitioners to gather additional signa-
34 tures. The petitioners may amend the boundaries of the proposed district at
35 the hearing to include or exclude lands of those ground water irrigators users
36 who provide written notice or who appear at the hearing requesting that their
37 lands be either included or excluded, to meet the recommendations of the
38 department, or as they may find advisable to achieve suitable district bound-
39 aries. The county commission shall accept any additional nominations of per-
40 sons to be directors at the hearing or the nominations may be filed with the
41 county clerk. The nominations must be signed by at least six (6) ground water
42 users from the proposed district.
43 (2) When the county commission has determined to proceed with the peti-
44 tion, it may adjourn the hearing from time to time, not exceeding four (4)
45 weeks in all, and on final hearing, the county commission:
46 (a) May make such other changes in the proposed boundaries of the dis-
47 trict and divisions within the district as it may find proper; and
48 (b) Shall make an order on its records describing the area which it shall
49 have determined to include in the district, and stating that lands of
50 ground water users within such area will be organized into a ground water
51 district if the vote of the electors accepts organization of the district.
52 (3) The county commission shall notify the department of the final action
53 by mailing or faxing a copy of the order to the department within seven (7)
4
1 days of the board's decision. If the boundaries of the proposed ground water
2 district differ from the boundaries contained in the department's original
3 report, the department shall prepare a revised list of the ground water users
4 within such proposed district by name, address, ground water right number,
5 point of diversion, and cubic feet per second per ground water right and
6 return it to the county commission.
7 SECTION 3. That Section 42-5210, Idaho Code, be, and the same is hereby
8 amended to read as follows:
9 42-5210. QUALIFICATIONS OF VOTERS FOR DISTRICT ELECTIONS. (1) Any ground
10 water irrigator, and any nonirrigator who is a member for all purposes, user
11 within the proposed district shall be entitled to vote at any election held
12 under the provisions of this chapter. The production of documentation of a
13 water right as described in section 42-5201(164), Idaho Code, shall be suffi-
14 cient evidence of ground water use for purposes of acting as an elector under
15 this chapter. A representative of a ground water user shall be so designated
16 by written proxy signed by the ground water user except that the vote of a
17 state, city or county government may be cast by an elected or appointed offi-
18 cial of the agency, or his designee. A corporation or partnership shall vote
19 or otherwise act by a single individual who is authorized by the corporation
20 or partnership to act on its behalf. A corporation or partnership must fur-
21 nish the election officials a written designation stating the name of the
22 individual who is authorized to vote and otherwise act for the corporation or
23 partnership.
24 (2) Any ground water user who becomes a member of a district solely for
25 mitigation purposes:
26 (a) Shall be entitled to vote only in those district elections concerning
27 whether to incur indebtedness as specified in section 42-5234, Idaho Code;
28 and
29 (b) Shall be ineligible to nominate directors or officers of the dis-
30 trict, to serve in such capacities, or otherwise to participate in the
31 governance of the district.
32 (3) A nonirrigator may participate in the election to determine whether a
33 district will be formed only according to the following provisions:
34 (a) The nonirrigator shall notify the judges of election in writing at
35 least ten (10) working days prior to the date of the election that such
36 person supports the formation of the district, elects to become either a
37 member for all purposes, or a member only for mitigation purposes as
38 described in section 42-5214, Idaho Code, should it be formed, and, by
39 such notice, casts its vote(s) in favor of formation.
40 (b) The notification shall contain a legal description of the land
41 through which the nonirrigator places ground waters to beneficial use, a
42 statement of the amount of such person's ground water right in cubic feet
43 per second of diversions, and a copy of the ground water right documenta-
44 tion described in section 42-5201(16), Idaho Code.
45 (c) Once the judges of election have accepted the notification described
46 in subsection (3)(b) of this section, they shall duly record the
47 nonirrigator's vote(s) in favor of district formation in the canvassing of
48 votes carried out pursuant to section 42-5213, Idaho Code.
49 (d) If the voting results in the formation of the district, the
50 nonirrigator who provided such notification thereafter shall be a full
51 member or member for mitigation purposes of such district, whichever the
52 case may be, and shall have all obligations, rights, and limitations
53 attaching thereto.
5
1 (4) Each ground water user shall have one (1) vote for each cubic foot
2 per second, or proportion thereof (rounded to the nearest tenth of a cubic
3 foot per second), for which such ground water user holds a ground water right
4 whose point of diversion is within the proposed district boundaries.
5 SECTION 4. That Section 42-5212, Idaho Code, be, and the same is hereby
6 amended to read as follows:
7 42-5212. REGISTRATION NOT REQUIRED. No registration shall be required in
8 any ground water district election, but in lieu thereof the judges of election
9 shall require every elector to subscribe to an elector's oath as prerequisite
10 to casting his vote, and such oath shall be the usual elector's oath with the
11 following words added thereto, "I am a resident of .......... county, and I am
12 a ground water user within the ....... (proposed) ground water district, or I
13 am a representative of a ground water user within the ....... (proposed)
14 ground water district" and present evidence of such ground water use pursuant
15 to section 42-5201(164), Idaho Code, if they do not appear on the department's
16 list as provided in section 42-5206, Idaho Code.
17 SECTION 5. That Section 42-5214, Idaho Code, be, and the same is hereby
18 amended to read as follows:
19 42-5214. GROUND WATER USERS INCLUDED WITHIN THE DISTRICT. (1) All ground
20 water irrigators users within the boundaries of the district are members of
21 the district and subject to assessments, rights and responsibilities estab-
22 lished by the district as set forth in this chapter, notwithstanding any
23 change in the ownership or control of the property of the water user, whether
24 by way of transfer, exchange, conveyance, assignment, lease, or otherwise, to
25 which the water right or rights used to determine assessments are appurtenant,
26 unless excluded from the district pursuant to sections 42-5251 through
27 42-5257, Idaho Code. Any ground water user who, due to the type of use being
28 made of water under the user's water right, previously was not a member as of
29 March 31, 2005, shall be included as a member effective on and after such
30 date.
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, aAny 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
6
1 either directly or indirectly by the district as of the date the permit,
2 license, or entitlement is acquired.
3 SECTION 6. That Section 42-5219, Idaho Code, be, and the same is hereby
4 amended to read as follows:
5 42-52198A. WHEN ELECTION NOT REQUIRED. In any election for directors if,
6 after the expiration of the date for filing written nominations for the office
7 of director, it appears that only one (1) qualified candidate has been nomi-
8 nated thereby for each position to be filled, it shall not be necessary to
9 hold an election, and the board of directors shall, within five (5) days after
10 expiration of the date for filing written nominations, declare such candidate
11 elected as director. The procedure set forth in this section shall not apply
12 to any other district election.
13 SECTION 7. That Section 42-5220, Idaho Code, be, and the same is hereby
14 amended to read as follows:
15 42-522018B. NOTICE OF ELECTION. The secretary of the district shall give
16 notice of all elections in the district by posting the same in five (5) public
17 places in each county in which a part of the district is situated and in the
18 office of the board of directors at least four (4) weeks before the day of
19 such election, or by publication of the notice once a week for four (4) suc-
20 cessive weeks in a newspaper or newspapers published in each of said counties
21 or in a newspaper of general circulation therein. Notices shall state the time
22 of the election and the location of polling places within the district and the
23 directors to be elected or other question to be voted upon, as the case may
24 be.
25 SECTION 8. That Section 42-5221, Idaho Code, be, and the same is hereby
26 amended to read as follows:
27 42-52218C. CONDUCT OF ELECTIONS. The election shall be conducted as
28 nearly as practicable in accordance with the general laws of the state; pro-
29 vided that no particular form of ballot shall be required and the provisions
30 of the election laws as to the form and distribution of ballots shall not
31 apply and each ballot must indicate the number of cubic feet per second asso-
32 ciated with the ballot cast. The board of directors shall designate polling
33 places in such number as it may deem necessary. At least ten (10) days before
34 the holding of any election, the board shall appoint three (3) electors to
35 serve as judges of election at each polling place. The judges shall perform
36 the same duties as near as may be, as judges of election under the general
37 laws of the state. Immediately after the election, the judges of election
38 shall forward the official results to the secretary of the district.
39 SECTION 9. That Section 42-5222, Idaho Code, be, and the same is hereby
40 amended to read as follows:
41 42-522218D. CANVASS OF RETURNS -- DECLARATION OF WINNERS. On the first
42 Monday after each election, or at a time designated by the board of directors,
43 the board shall meet at its usual place of meeting and proceed to canvass the
44 returns. By order entered on its minutes, the board shall declare elected the
45 person or persons having the highest number of votes for each office.
46 SECTION 10. That Chapter 52, Title 42, Idaho Code, be, and the same is
7
1 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
2 ignated as Section 42-5219, Idaho Code, and to read as follows:
3 42-5219. DIRECTORS AT LARGE. In the event a district is divided into six
4 (6) or fewer divisions, the district is authorized to elect one (1) to two (2)
5 directors at large. Directors at large shall be elected at the annual meeting
6 of the district by a two-thirds (2/3) majority of the members present at the
7 meeting. Every director at large elected pursuant to the provisions of this
8 section shall be a ground water user in the district. Directors at large shall
9 hold office for a term of two (2) years, or until their successors are elected
10 and qualified. Provided however, that in no event shall a district have more
11 than a total of seven (7) directors serving at any time whether elected pursu-
12 ant to the provisions of section 42-5218, Idaho Code, or pursuant to this sec-
13 tion.
14 SECTION 11. That Section 42-5224, Idaho Code, be, and the same is hereby
15 amended to read as follows:
16 42-5224. POWERS AND DUTIES OF BOARD OF DIRECTORS. The board shall, in
17 addition to any other powers and duties provided in this chapter, and provided
18 that nothing in this chapter shall abrogate or impair the right of any person
19 to take any action necessary to acquire, protect, challenge or defend any
20 water right, have the following powers and duties:
21 (1) To acquire, and/or construct, operate, control or use by appropria-
22 tion, grant, purchase, bequest, devise, contract or lease works or facilities,
23 water rights, water permits or licenses, well-drilling permits, wells, pipe-
24 lines, ditches and any other real and personal property (including easements
25 and rights-of-way) or contract entitlement within or without the district nec-
26 essary or convenient to fully exercise its powers;
27 (2) To sell, lease, encumber, alienate, or otherwise dispose of works or
28 facilities, water, water rights, wells, pipelines, ditches, reservoirs,
29 recharge facilities, and any other real and personal property owned by the
30 district within or without its boundaries, and to incur indebtedness on behalf
31 of the district as specified in this chapter;
32 (3) To enter into contracts and agreements, cooperative and otherwise,
33 including contracts with the United States of America and any of its agencies
34 or instrumentalities, and tribes, and contracts with corporations, public or
35 private, municipalities, or governmental subdivisions necessary or convenient
36 to fully exercise its powers;
37 (4) To hire and retain agents, employees, engineers, hydrologists, geolo-
38 gists, and attorneys as shall be necessary and convenient to transact the
39 district's business and to represent the district's interests;
40 (5) To levy assessments for the operation of the district and its pro-
41 grams;
42 (6) To represent district members, with respect to their individual water
43 rights, in general water rights adjudications and other legal and administra-
44 tive proceedings or before political bodies, provided that the board may levy
45 assessments for these matters against only those members who have given writ-
46 ten consent for the representation;
47 (7) To represent district members in proceedings or meetings of a water
48 district established by the director of the department notwithstanding any
49 provision to the contrary in chapter 6, title 42, Idaho Code. Provided how-
50 ever, that the board shall not be authorized to cast a vote in any proceeding
51 or meeting of a water district established pursuant to chapter 6, title 42,
52 Idaho Code, on behalf of any district member who has, prior to such proceeding
8
1 or meeting, given written notice to the board and to the water district that
2 such district member intends to vote on his own behalf, or on behalf of any
3 district member who attends such meeting or proceeding and intends to vote on
4 his own behalf. The board shall provide a verified list of the water rights
5 that it represents at any water district proceeding or meeting to the chairman
6 of the water district proceeding or meeting.;
7 (8) To appropriate, develop, store, and transport water within the state;
8 (9) To acquire stock in canal companies, water companies, and water
9 users' associations;
10 (10) To invest any surplus money in the district treasury pursuant to the
11 public depository law as contained in chapter 1, title 57, Idaho Code;
12 (11) To develop, maintain, operate and implement mitigation plans designed
13 to mitigate any material injury caused by ground water use within the district
14 upon senior water uses within and/or without the district;
15 (12) To finance the repair or abandonment of wells in the ground water
16 district which have experienced or are experiencing declines in water level or
17 water pressures because of reasons including, but not limited to, flow, leak-
18 age, and waste from improper construction, maintenance, and operation of
19 wells;
20 (13) To have and exercise the power of eminent domain in the manner pro-
21 vided by law for the condemnation of private property for easements, rights-
22 of-way, and other rights of access to property necessary to the exercise of
23 the mitigation powers herein granted, both within and without the district;
24 (14) To sue and be sued, and be a party to suits, actions and proceedings;
25 (15) To enter into joint powers agreements and/or memoranda of understand-
26 ing with other districts, governmental or quasi-public entities;
27 (16) To develop and acquire water rights for, and operate, aquifer storage
28 or recharge projects;
29 (17) To monitor, measure, study, and implement programs in the interests
30 of the district's members regarding the protection of ground water diversions,
31 depth of water in wells, aquifer water levels and characteristics;
32 (18) To adopt and amend bylaws not in conflict with the constitution and
33 laws of the state for carrying on the business, objects and affairs of the
34 board and of the district and to establish a fiscal year;
35 (19) To enter upon land to make surveys, locate district property, works,
36 or facilities, and to otherwise conduct the affairs of the district;
37 (20) To make, record and report annually to the director sufficient mea-
38 surements of diversions and water levels of district members to allow the dis-
39 trict to be excluded from any water measurements district created pursuant to
40 sections 42-705 through 42-715, Idaho Code.;
41 (21) To manage and conduct the affairs of the district and to have and
42 exercise all rights and powers necessary or incidental to or implied from the
43 specific powers granted herein. Such specific powers shall not be considered
44 as a limitation upon any power necessary or appropriate to carry out the pur-
45 poses and intent of this act chapter.
46 SECTION 12. That Section 42-5232, Idaho Code, be, and the same is hereby
47 amended to read as follows:
48 42-5232. LEVY OF ASSESSMENTS. (1) The secretary of the board shall be the
49 assessor of the district, and on or before August 1 of each year shall prepare
50 an assessment book containing a full and accurate list of all lands within the
51 district that are subject to assessment under this chapter.
52 (2) At a regular meeting of the board between August 1 and November 1 of
53 each year, the board of directors shall determine the amount necessary to be
9
1 raised for payment of the annual payment on any and all indebtedness of the
2 district for the following year. Money received in payment of such assess-
3 ments shall be deposited in a separate fund to be known as the debt retirement
4 fund.
5 (3) The board shall, in addition, determine the assessments necessary to
6 pay, without limitation, the expenses of developing, operating or maintaining
7 any mitigation plan established by the district and the cost of contracts with
8 any person for mitigation plans, or evaluation of proposed contracts. Money
9 received in payment of such assessments shall be deposited in a separate fund
10 to be known as the mitigation expense fund.
11 (4) The board shall, in addition, determine the assessments necessary to
12 pay maintenance and operation of the district not related to mitigation plans
13 or purposes. These operation and maintenance duties include making the assess-
14 ment book, giving notice of assessments and making collections thereof, and
15 other duties, programs or projects of the district to the extent such duties,
16 programs or projects are not attributable to mitigation plans or purposes.
17 Money received in payment of such assessments shall be deposited in a separate
18 fund of the district to be known as the operating expense fund.
19 (5) Any ground water user who becomes a member of a district for mitiga-
20 tion purposes shall be subject to no assessment beyond his proportional share
21 of the costs, including administrative costs and other reasonable expenses, of
22 any mitigation plan or actions or activities in furtherance of the district's
23 mitigation plans or purposes.
24 (6) No assessment made pursuant to this chapter shall be a lien against
25 any municipal property.
26 (76) Except as otherwise provided in this chapter, each member shall pay
27 a proportionate share of the total of all amounts to be assessed for the pur-
28 poses aforementioned, which share shall be based on the ratio which the quan-
29 tity of water the water user is authorized to appropriate under the member's
30 ground water right(s) bears to the total quantity of water authorized for
31 appropriation under the ground water rights of all water users in the dis-
32 trict, provided, that the board shall be entitled to levy assessments that
33 adjust a member's proportionate share to take into consideration priority
34 dates, consumptive use under the members' respective ground water rights,
35 other attributes of the ground water rights appurtenant to the assessed lands,
36 and/or the benefits the member derives from a mitigation plan or other activ-
37 ity of the district.
38 SECTION 13. That Section 42-5233, Idaho Code, be, and the same is hereby
39 amended to read as follows:
40 42-5233. POWER TO INCUR INDEBTEDNESS -- ASSESSMENTS TO SECURE REPAYMENT
41 -- WARRANTS. (1) In order to secure funds for the mitigation plan or plans for
42 the district, the board of directors may, by resolution duly adopted and
43 entered upon the minutes, incur indebtedness by contract with a money lending
44 institution; provided however, that the term of such indebtedness shall not
45 exceed ten thirty (130) years. To secure the repayment of any indebtedness so
46 incurred, the board shall levy assessments over the term of the indebtedness
47 in amounts sufficient to repay the interest and principal as it falls due.
48 Such assessments shall be levied in the manner and shall be subject to the
49 limitations set forth in section 42-5232, Idaho Code, and may be levied only
50 if the indebtedness has been approved at an election pursuant to sections
51 42-5234 through 42-5238, Idaho Code.
52 (2) Notwithstanding the provisions of subsection (1) of this section, the
53 board of directors may, before the collection of the first assessment, incur
10
1 indebtedness for the purpose of organization, or for any of the purposes of
2 this chapter, and cause warrants of the district to issue therefor, provided
3 that the total dollar amount of the warrants authorized to be issued shall not
4 exceed one dollar ($1.00) for each two-hundredths (.02) of a cubic foot per
5 second of ground water authorized to be diverted and used upon lands or facil-
6 ities located within the district. Following the collection of the first
7 assessment, the board of directors may at any time issue warrants of the dis-
8 trict for the purpose of paying claims of indebtedness against the district,
9 including salaries of officers and employees, not to exceed the district's
10 anticipated revenue.
11 (3) The warrants herein authorized shall be in form and substance the
12 same as county warrants or as nearly the same as may be practicable and shall
13 be signed by the chairman and attested by the secretary of said board. All
14 such warrants shall be presented by the holder thereof to the treasurer of the
15 district for payment who shall endorse thereon the day of presentation for
16 payment with the additional endorsement thereon, in case of nonpayment, that
17 they are not paid for want of funds, and such warrants shall draw interest at
18 a rate to be established by the board of directors from the date of their pre-
19 sentation to the treasurer for payment as aforesaid until such warrants are
20 paid. No warrants shall be issued in payment of any indebtedness of such dis-
21 trict for less than face or par value. It shall be the duty of the treasurer
22 from time to time when sufficient funds are available for that purpose to
23 advertise in a newspaper in the county in which the district is situated
24 requiring the presentation to the treasurer for payment of as many of the out-
25 standing warrants as are able to be paid. Ten (10) days after the first publi-
26 cation of said notice by the treasurer calling in any of said outstanding war-
27 rants, said warrants shall cease to bear interest, which shall be stated in
28 the notice. Said notice shall be published two (2) weeks consecutively and
29 said warrants shall be called in and paid in the order of their endorsement.
30 SECTION 14. That Section 42-5242, Idaho Code, be, and the same is hereby
31 amended to read as follows:
32 42-5242. ENTRY OF DELINQUENT ASSESSMENTS -- FILING OF DELINQUENCY LIST.
33 (1) On or before the 15th day of January of each year the treasurer shall
34 enter the amount of all delinquent assessments upon the assessment book, which
35 entry shall be considered to be dated as of the first day of January. Such
36 entry shall have the force and effect of a sale to the treasurer of the dis-
37 trict as grantee in trust for the district of all property to which a lien has
38 attached as a result of such unpaid assessments.
39 (2) The treasurer shall compile a list of such delinquency entries which
40 shall contain the names of the persons or entities to whom the assessments
41 were directed and the amount of such delinquent assessments together with the
42 amount of the penalties to be added thereto. A certified copy of the delin-
43 quency list, duly acknowledged by the treasurer, shall be filed with the
44 county recorder of each county in which the properties affected by such delin-
45 quent assessments are located, and the treasurer shall then provide by certi-
46 fied mail a notice of delinquency to each ground water user having a delin-
47 quent assessment.
48 (3) Upon the payment in full of any delinquent assessment and penalty
49 that was entered on a recorded delinquency list, the treasurer shall file with
50 the county recorder of each county in which the list of delinquent assessments
51 was recorded an acknowledged notice that the delinquent assessment and any
52 penalty owed has been paid in full. The treasurer shall file any notices of
53 payment of delinquent assessments with the county recorders, as required, on
11
1 at least a monthly basis.
2 SECTION 15. That Section 42-5244, Idaho Code, be, and the same is hereby
3 amended to read as follows:
4 42-5244. PROHIBITION AGAINST PARTICIPATION IN MITIGATION PLAN WHEN SUB-
5 JECT TO DELINQUENT ASSESSMENT OR FOR NONPAYMENT OF OTHER MITIGATION COSTS. A
6 ground water user who is delinquent in the payment of any assessment against
7 his water use under this chapter, or who has failed to pay other mitigation
8 costs owed to the district when due, is prohibited from being a participant in
9 any mitigation plan until such delinquent assessment, or other past due amount
10 owed for mitigation costs, is paid in full. The district shall provide the
11 director a report of such delinquent assessments, or other past due mitigation
12 costs, at the first of each month for purposes of enforcement. Prior to under-
13 taking enforcement, the director may require from the district an accounting
14 of the basis for the assessment and other mitigation costs and the apportion-
15 ment of those assessments and costs among district members. The district shall
16 inform the director immediately upon the payment of any such delinquent
17 assessment, or other past due mitigation costs. This section shall be
18 enforced by the watermaster within water districts established under chapter 6
19 of this title, and by the director pursuant to sections 42-351 and 42-1701B,
20 Idaho Code, in areas outside of such water district.
21 SECTION 16. That Section 42-5245, Idaho Code, be, and the same is hereby
22 amended to read as follows:
23 42-5245. PETITION FOR ANNEXATION OF LAND. Any ground water user, as
24 defined in section 42-5201(8), Idaho Code, as well as any user of ground water
25 for domestic or stock use as defined by sections 42-111 and 42-1401A, Idaho
26 Code, may file with the board a petition in writing praying that the land
27 and/or facilities listed under the ground water user's ground water right(s)
28 may be annexed into the district. The petition shall contain a legal descrip-
29 tion of the lands and any other information the district may require, and the
30 petitioner shall state under oath that petitioner holds the title to said
31 lands. If the ground water user is a nonirrigator, the petition shall state if
32 the ground water user is seeking to join the district solely to participate in
33 the district's mitigation plan or other mitigation activities.
34 SECTION 17. That Section 42-5248, Idaho Code, be, and the same is hereby
35 amended to read as follows:
36 42-5248. ASSESSMENTS AGAINST ANNEXED LANDS. (1) The board of directors
37 may require, as a condition to the granting of an annexation petition, that
38 the petitioners shall severally pay to the district such respective sums, as
39 nearly as the same can be estimated, as said petitioners, or their grantors,
40 would have been required to pay such district, had such lands been included in
41 such district at the time it was originally formed, together with a propor-
42 tionate share of the expenses of the district accrued since formation.
43 (2) If the petition seeks only to participate in a district mitigation
44 plan, the board may require a proportionate sum of the mitigation expenses
45 accrued since the district was originally formed to be paid as a condition to
46 the granting of an annexation petition.
47 SECTION 18. That Section 42-5251, Idaho Code, be, and the same is hereby
48 amended to read as follows:
12
1 42-5251. PETITION FOR EXCLUSION OF LANDS -- LANDS MAY REMAIN IN THE DIS-
2 TRICT FOR MITIGATION PURPOSES ACTION ON PETITION BY DISTRICT BOARD. Any dis-
3 trict member may file with the district board a petition requesting that the
4 member's lands be excluded from the district. The petition may request that
5 the lands either be excluded for all purposes or be excluded for all purposes
6 except mitigation. The petition shall be signed by each petitioner, but need
7 not be acknowledged and shall state that continued inclusion of the lands in
8 the district is inappropriate or unwarranted:
9 (1) Because the diversions of ground water under the ground water users
10 water right have no depletive effect on any water source, either individually
11 or cumulatively when considered in conjunction with other similar diversions;
12 (2) Because the only ground water use associated with the lands sought to
13 be excluded by the petition is a domestic or stock water use as defined by
14 sections 42-111 and 42-1401A, Idaho Code;
15 (3) Because the exclusion of the lands will not impair the district's
16 ability to repay debt or carry out mitigation plans;
17 (4) Because the exclusion is in the best interests of the district and
18 its members; or
19 (5) For other compelling reasons.
20 The board shall consider the petition and, based on findings concerning such
21 factors, the board shall grant or deny the petition within ninety (90) days of
22 the date it is filed, unless the board, in its sole discretion, grants a hear-
23 ing on the petition within such time period, in which case the board shall
24 issue a final decision within sixty (60) days after the conclusion of the
25 hearing. All costs incurred by the district in carrying out the exclusion pro-
26 ceeding shall be assessed as provided in section 42-5253, Idaho Code. A per-
27 son purchasing land under a written contract shall be deemed to be the owner
28 of that land for purposes of this section.
29 SECTION 19. That Section 42-5252, Idaho Code, be, and the same is hereby
30 amended to read as follows:
31 42-5252. CONTENTS OF PETITION -- REPRESENTATIONS, CERTIFICATION AND LIA-
32 BILITY -- WAIVER OF BENEFITS UPON EXCLUSION. (1) A petition for exclusion
33 shall set forth or include the following:
34 (a) A description of the land and/or facilities of petitioner for which
35 exclusion is requested, together with such evidence of ownership of the
36 land and/or facilities as is satisfactory to the district board;
37 (b) A representation that no mortgagee or other person holds a lien of
38 record in the county where the land for which exclusion is requested is
39 located, for which the lienholder's consent to the exclusion is required
40 or that, if such consent is required, the consent has been granted by the
41 lienholder;
42 (c) If the member seeks exclusion for all purposes, aAn explicit written
43 waiver and relinquishment, on a form provided by the board or otherwise,
44 of all right to rely upon or be covered by any program, plan, activity or
45 benefits of any kind provided by or through the district;
46 (d) If the member seeks to be excluded from the district for all purposes
47 except mitigation, an explicit written waiver and relinquishment stating
48 that the member recognizes and agrees that:
49 (i) The member no longer will be entitled to vote or participate in
50 the governance of the district, to nominate directors, or to serve as
51 a director of the district except as specified in this chapter;
52 (ii) The member will remain subject to all assessments pertaining to
53 the district's mitigation program(s) or plans;
13
1 (iii) The member will be entitled to receive no benefits of any kind
2 from the district except those pertaining to mitigation purposes.
3 (e) Regardless of whether the exclusion will be for all purposes or for
4 all except mitigation purposes, aAn explicit written statement, on a form
5 provided by the board or otherwise, that the member recognizes and agrees
6 that he will remain liable to the district, and subject to assessment, for
7 any financial indebtedness the member may have to the district for indebt-
8 edness incurred before exclusion occurs.
9 (2) The district board shall return to the petitioner any petition not
10 accompanied by the information required in subsection (1) of this section, and
11 no further action shall be required of the board with respect to such peti-
12 tion. The petitioner shall be liable for any expenses or damages to lienhold-
13 ers or to other landowners or to the district resulting directly or indirectly
14 from wrongful exclusion of lands by reason of untrue or incorrect statements
15 in the petition.
16 (3) The petition for exclusion shall be signed by the member and be
17 acknowledged in front of a notary public in the same manner as for deeds of
18 land.
19 SECTION 20. 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 completed
22 petition for exclusion, In the event the district's board of directors grants
23 a petition for exclusion, the board shall, by resolution, shall make 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 (dc) 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 21. 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. The Any 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 22. That Section 42-5257, Idaho Code, be, and the same is hereby
48 amended to read as follows:
49 42-5257. EXCLUSION -- EFFECT -- OBLIGATIONS OUTSTANDING -- ENFORCEMENT --
14
1 PAYMENT -- CERTIFICATE. (1) Except as otherwise provided in this chapter, land
2 and/or facilities excluded from any ground water district shall not thereafter
3 be entitled to any of the rights and benefits of the district and shall be
4 deemed to have fully relinquished all such rights and benefits.
5 (2) Land and/or facilities fully excluded from a district and those
6 excluded only from nonmitigation purposes shall be subject to assessment and
7 be otherwise chargeable for the payment and discharge of all obligations out-
8 standing at the time of the entry of the exclusion order as fully as though
9 the land had not been excluded. Such obligations shall include, but are not
10 limited to, their proportionate share of any of the district's existing
11 indebtedness that was incurred for a project or activity that: (a) provided a
12 benefit to such lands prior to the exclusion and for which benefit the
13 excluded lands remain indebted; or (b) continues to benefit such lands even
14 after the exclusion. Where either of these circumstances exists, excluded
15 lands shall remain a part of the district for the purpose of discharging such
16 existing contract indebtedness, and otherwise shall be obligated to pay all
17 regular and special assessments to retire such debt as if they had not been
18 excluded. The district's board of directors may allow any debt or obligation
19 against any excluded land and/or facility to be paid in installments or in any
20 other manner the board deems equitable.
21 (3) All provisions which could be used to compel the payment by excluded
22 land of its portion of the outstanding obligations had the exclusion not
23 occurred, may be used to compel the payment on the part of the land of the
24 portion of the outstanding obligations of the district for which it is liable.
25 (4) When any member obtaining the exclusion of land from a ground water
26 district has paid to the district all of the debts and obligations of the dis-
27 trict assessable, chargeable or allocable to the land and/or facility
28 excluded, the district may issue its certificate of full payment executed by
29 the president and secretary of the district, and acknowledged so that the cer-
30 tificate may be recorded in the records of the county wherein the land is sit-
31 uate.
32 SECTION 23. That Section 42-5259, Idaho Code, be, and the same is hereby
33 amended to read as follows:
34 42-5259. PARTICIPATION BY NONMEMBER IN DISTRICT SOLELY FOR MITIGATION
35 PURPOSES. Upon written request from a ground water user who is not a member of
36 a district, and regardless of whether such user is an irrigator, a district
37 board of directors shall enter a contract with such nonmember pursuant to
38 which the nonmember shall be allowed to participate fully in, and obtain all
39 benefits of, any mitigation plan, purpose or activity the district currently
40 has in force or is developing, provided that:
41 (1) The board finds that the plan is likely to be effective in mitigating
42 the effects of such nonmember's ground water use, and that including the non-
43 member within the mitigation plan's coverage will not impair the plan's effec-
44 tiveness as to district members;
45 (2) If the district's mitigation plan has been approved by the director,
46 the board shall evaluate the contract request in accordance with any condi-
47 tions of the district's mitigation plan which address equitable participation
48 by ground water users who do not initially participate in such mitigation
49 plan;
50 (3) Before the contract may be effective, the board may collect from the
51 nonmember a payment adequate to compensate the district for the nonmember's
52 proportional share of the costs the district already has incurred in develop-
53 ing and implementing the mitigation plan;
15
1 (4) The board may include in the contract a provision requiring the non-
2 member to pay a reasonable surcharge, either annually or on some other basis,
3 to reimburse the district for such nonmember's proportional share of those
4 past or future costs of operating the district attributable to formulating or
5 implementing the mitigation plan or plans in which the nonmember is partici-
6 pating;
7 (5) The board may require the nonmember to provide security to assure the
8 payment of all assessments and charges related to the contract;
9 (6) Nothing in this section shall be interpreted to limit the district's
10 ability to enter into a contract with nonmembers pursuant to terms and condi-
11 tions acceptable to both parties.
12 SECTION 24. That Section 42-5276, Idaho Code, be, and the same is hereby
13 repealed.
14 SECTION 25. SEVERABILITY. The provisions of this act are hereby declared
15 to be severable and if any provision of this act or the application of such
16 provision to any person or circumstance is declared invalid for any reason,
17 such declaration shall not affect the validity of the remaining portions of
18 this act.
19 SECTION 26. An emergency existing therefor, which emergency is hereby
20 declared to exist, this act shall be in full force and effect on and after its
21 passage and approval.
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature First Regular Session - 2005
Moved by Raybould
Seconded by Stevenson
IN THE HOUSE OF REPRESENTATIVES
HOUSE AMENDMENTS TO H.B. NO. 372
1 AMENDMENT TO SECTION 5
2 On page 5 of the printed bill, in line 27, delete "Any" and insert:
3 "Except as provided in section 42-5276, Idaho Code, any".
4 AMENDMENT TO SECTION 24
5 On page 15, in line 13, delete "repealed." and insert: "amended to read as
6 follows:"; and following line 13 insert:
7 "42-5276. INCLUSION OF IRRIGATION DISTRICTS ORGANIZED UNDER TITLE 43.
8 Where the water supply for lands is ground water provided by an irrigation
9 district established under title 43, Idaho Code, and such lands are included
10 in and subject to assessment by the irrigation district, such lands shall be
11 included in a ground water district organized under the provisions of this
12 chapter only if the board of the irrigation district serves notice in the same
13 manner as that provided for nonirrigators in section 42-5214(2) and (3), Idaho
14 Code files a petition for annexation into the district under section 42-5245,
15 Idaho Code.".
16 CORRECTIONS TO TITLE
17 On page 2, in line 10, delete "REPEALING" and insert: "AMENDING"; and on
18 line 11, following "CODE" insert: ", TO PROVIDE THAT CERTAIN IRRIGATION DIS-
19 TRICTS SHALL BE INCLUDED IN GROUND WATER DISTRICTS ONLY UPON FILING OF A PETI-
20 TION FOR ANNEXATION".
2
Moved by Raybould
Seconded by Stevenson
IN THE HOUSE OF REPRESENTATIVES
HOUSE AMENDMENTS TO H.B. NO. 372
1 AMENDMENT TO SECTION 1
2 On page 2 of the printed bill, in line 36, following "Code" insert: ", and
3 provided, that for purposes of this chapter, the term ground water user shall
4 not include any ground water right owned by an Indian tribe or by tribal mem-
5 bers for diversion and use within an Indian reservation, ground water rights
6 owned by the United States or ground water rights owned by the state of
7 Idaho".
8 AMENDMENTS TO SECTION 5
9 On page 5, in line 19, following "DISTRICT" insert: "-- NOTICE AND HEARING
10 FOR MEMBERS INCLUDED IN DISTRICT AFTER MARCH 31, 2005 -- ORDER -- APPEAL AND
11 CONCLUSIVENESS"; in line 20, delete "are" and insert: "are shall be"; in line
12 27, delete ", due to the type of use being"; in line 28, delete "made of water
13 under the user's water right,"; in line 29, delete "on and after such"; delete
14 line 30 and insert: "upon order of the board finding and confirming that
15 inclusion of such ground water user is in the best interests of the district
16 and that such ground water user shall receive benefits from such inclusion as
17 a member. Such order may be made only after the board shall have caused a
18 notice of such hearing to be published in the manner of notices of elections,
19 which notice shall state that all persons interested in or that may be
20 affected by such inclusion as a member shall appear at the time and place
21 named in the notice and show cause in writing why they should not be included
22 as a member. The board, at the time mentioned in said notice shall hear any
23 objections to inclusion. The failure of any person to file with the district
24 office an objection to inclusion as a member prior to the noticed hearing
25 shall be taken as an assent on his part to such inclusion as a member of the
26 district. Any order confirming the inclusion of ground water users as members
27 of the district shall be certified by the board president and secretary and
28 filed for record in the recorder's office of each county within which are sit-
29 uated any lands of the district and notice of the order shall be published in
30 the manner of notices of elections. Any person who properly has filed an
31 objection to inclusion as a member shall have the right to appeal to the dis-
32 trict court of the county in which such person's ground water right is situ-
33 ated, provided such appeal shall be made within thirty (30) days from the date
34 of publication of the order confirming such inclusion. After said thirty (30)
35 day appeal period, no one shall have any cause or right of action to contest
36 the legality, formality or regularity of said order of inclusion for any rea-
37 son whatsoever, and thereafter, said inclusion and the constitution and valid-
38 ity of the district shall be considered valid and incontestable without limi-
39 tation. Any ground water user who previously was not a member of the district
40 as of March 31, 2005, that is included as a member upon order of the board
41 shall be liable for his proportionate share of all costs of the district
42 incurred after such date, including his proportionate share of all bonded,
43 warrant or other indebtedness incurred prior to March 31, 2005.".
44 AMENDMENTS TO SECTION 12
3
1 On page 9, in line 33, following "consideration" insert: ", without limi-
2 tation,"; delete lines 35 through 37 and insert: "other attributes of the
3 ground water rights appurtenant to the assessed lands, and/or the benefits the
4 member derives from a mitigation plan or other activity of the district and
5 whether the member has an individual mitigation plan.".
6 CORRECTIONS TO TITLE
7 On page 1, in line 12, delete "AN EFFECTIVE DATE OF MEMBERSHIP FOR CERTAIN
8 USERS," and insert: "FOR ORDERS OF THE BOARD RELATING TO INCLUSION OF CERTAIN
9 GROUND WATER USERS IN GROUND WATER DISTRICTS, TO PROVIDE FOR NOTICE OF HEAR-
10 ING, TO PROVIDE FOR HEARING, TO PROVIDE FOR OBJECTIONS TO INCLUSION, TO PRO-
11 VIDE FOR THE CERTIFICATION AND FILING OF ORDERS OF INCLUSION, TO PROVIDE FOR
12 CERTAIN APPEALS, TO PROVIDE FOR CONCLUSIVENESS OF ORDERS OF INCLUSION, TO PRO-
13 VIDE THAT CERTAIN GROUND WATER USERS INCLUDED AS MEMBERS UPON ORDER OF THE
14 BOARD SHALL BE LIABLE FOR SPECIFIED COSTS OF THE DISTRICT,"; in line 25,
15 delete "TO REVISE PROVISIONS RELATING TO THE LEVY OF"; in line 26, delete
16 "ASSESSMENTS" and insert: "TO DELETE CERTAIN PROVISIONS RELATING TO ASSESS-
17 MENTS FOR GROUND WATER USERS THAT BECOME MEMBERS OF DISTRICTS FOR MITIGATION
18 PURPOSES AND TO AUTHORIZE GROUND WATER DISTRICT BOARDS TO LEVY ASSESSMENTS
19 THAT ADJUST A MEMBER'S PROPORTIONATE SHARE TO TAKE INTO CONSIDERATION INDIVID-
20 UAL MITIGATION PLANS".
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature First Regular Session - 2005
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 372, As Amended
BY WAYS AND MEANS COMMITTEE
1 AN ACT
2 RELATING TO GROUND WATER DISTRICTS; AMENDING SECTION 42-5201, IDAHO CODE, TO
3 REVISE DEFINITIONS; AMENDING SECTION 42-5207, IDAHO CODE, TO PROVIDE FOR
4 THE INCLUSION OR EXCLUSION OF LANDS OF CERTAIN GROUND WATER USERS IN
5 GROUND WATER DISTRICTS; AMENDING SECTION 42-5210, IDAHO CODE, TO REVISE
6 GROUND WATER DISTRICT VOTER QUALIFICATION PROVISIONS FOR GROUND WATER
7 USERS, TO PROVIDE FOR VOTES OF CITY GOVERNMENTS AND TO PROVIDE A CORRECT
8 CODE REFERENCE; AMENDING SECTION 42-5212, IDAHO CODE, TO PROVIDE A CORRECT
9 CODE REFERENCE AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION
10 42-5214, IDAHO CODE, TO REVISE PROVISIONS RELATING TO GROUND WATER USERS
11 TO BE CONSIDERED MEMBERS OF GROUND WATER DISTRICTS AND SUBJECT TO CERTAIN
12 ASSESSMENTS, TO PROVIDE FOR ORDERS OF THE BOARD RELATING TO INCLUSION OF
13 CERTAIN GROUND WATER USERS IN GROUND WATER DISTRICTS, TO PROVIDE FOR
14 NOTICE OF HEARING, TO PROVIDE FOR HEARING, TO PROVIDE FOR OBJECTIONS TO
15 INCLUSION, TO PROVIDE FOR THE CERTIFICATION AND FILING OF ORDERS OF INCLU-
16 SION, TO PROVIDE FOR CERTAIN APPEALS, TO PROVIDE FOR CONCLUSIVENESS OF
17 ORDERS OF INCLUSION, TO PROVIDE THAT CERTAIN GROUND WATER USERS INCLUDED
18 AS MEMBERS UPON ORDER OF THE BOARD SHALL BE LIABLE FOR SPECIFIED COSTS OF
19 THE DISTRICT, TO PROVIDE THAT CERTAIN PERSONS WHO BECOME ENTITLED TO
20 APPROPRIATE OR WHO APPROPRIATE GROUND WATER AFTER THE FORMATION OF A
21 GROUND WATER DISTRICT SHALL BE DEEMED INCLUDED IN THE DISTRICT AND SUBJECT
22 TO ASSESSMENTS AS OF A PARTICULAR DATE AND TO PROVIDE A CORRECT CODE REF-
23 ERENCE; AMENDING SECTION 42-5219, IDAHO CODE, TO REDESIGNATE THE SECTION;
24 AMENDING SECTION 42-5220, IDAHO CODE, TO REDESIGNATE THE SECTION; AMENDING
25 SECTION 42-5221, IDAHO CODE, TO REDESIGNATE THE SECTION; AMENDING SECTION
26 42-5222, IDAHO CODE, TO REDESIGNATE THE SECTION; AMENDING CHAPTER 52,
27 TITLE 42, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 42-5219, IDAHO
28 CODE, TO PROVIDE FOR DIRECTORS AT LARGE; AMENDING SECTION 42-5224, IDAHO
29 CODE, TO AUTHORIZE GROUND WATER DISTRICT BOARDS OF DIRECTORS TO INCUR
30 SPECIFIED INDEBTEDNESS ON BEHALF OF THE DISTRICT AND TO MAKE TECHNICAL
31 CORRECTIONS; AMENDING SECTION 42-5232, IDAHO CODE, TO DELETE CERTAIN PRO-
32 VISIONS RELATING TO ASSESSMENTS FOR GROUND WATER USERS THAT BECOME MEMBERS
33 OF DISTRICTS FOR MITIGATION PURPOSES AND TO AUTHORIZE GROUND WATER DIS-
34 TRICT BOARDS TO LEVY ASSESSMENTS THAT ADJUST A MEMBER'S PROPORTIONATE
35 SHARE TO TAKE INTO CONSIDERATION INDIVIDUAL MITIGATION PLANS; AMENDING
36 SECTION 42-5233, IDAHO CODE, TO PROVIDE THAT THE TERM FOR INDEBTEDNESS
37 RELATING TO THE FUNDING OF MITIGATION PLANS SHALL NOT EXCEED THIRTY YEARS;
38 AMENDING SECTION 42-5242, IDAHO CODE, TO PROVIDE THAT DELINQUENT ASSESS-
39 MENT LISTS SHALL BE DULY ACKNOWLEDGED BY GROUND WATER DISTRICT TREASURERS
40 AND TO PROVIDE REQUIREMENTS FOR THE TREASURER RELATING TO PAYMENTS IN FULL
41 OF DELINQUENT ASSESSMENTS AND PENALTIES; AMENDING SECTION 42-5244, IDAHO
42 CODE, TO PROHIBIT THE PARTICIPATION IN MITIGATION PLANS FOR NONPAYMENT OF
43 CERTAIN MITIGATION COSTS WHEN DUE UNTIL PAID IN FULL, TO REQUIRE GROUND
44 WATER DISTRICTS TO PROVIDE THE DIRECTOR OF THE DEPARTMENT OF WATER
45 RESOURCES WITH A REPORT OF PAST DUE MITIGATION COSTS, TO AUTHORIZE THE
46 DIRECTOR TO REQUIRE GROUND WATER DISTRICTS TO PROVIDE CERTAIN ACCOUNTINGS
2
1 AND TO REQUIRE GROUND WATER DISTRICTS TO INFORM THE DIRECTOR IMMEDIATELY
2 UPON PAYMENT OF PAST DUE MITIGATION COSTS; AMENDING SECTION 42-5245, IDAHO
3 CODE, TO REVISE PROVISIONS RELATING TO THE ANNEXATION OF THE LANDS AND/OR
4 FACILITIES OF CERTAIN USERS OF GROUND WATER INTO GROUND WATER DISTRICTS;
5 AMENDING SECTION 42-5248, IDAHO CODE, TO REVISE PROVISIONS RELATING TO
6 ASSESSMENTS AGAINST ANNEXED LANDS; AMENDING SECTION 42-5251, IDAHO CODE,
7 TO PROVIDE FOR ACTION ON PETITIONS FOR EXCLUSION OF LANDS FROM GROUND
8 WATER DISTRICTS BY DISTRICT BOARDS, TO PROVIDE REQUIREMENTS FOR PETITIONS
9 FOR EXCLUSION OF LANDS AND TO PROVIDE REQUIREMENTS RELATING TO ACTIONS ON
10 PETITIONS FOR EXCLUSION OF LANDS BY DISTRICT BOARDS; AMENDING SECTION
11 42-5252, IDAHO CODE, TO REVISE REQUIREMENTS RELATING TO CONTENTS OF PETI-
12 TIONS FOR EXCLUSION OF LANDS AND/OR FACILITIES FROM GROUND WATER DIS-
13 TRICTS; AMENDING SECTION 42-5253, IDAHO CODE, TO REVISE PROVISIONS AND
14 REQUIREMENTS RELATING TO ORDERS OF EXCLUSION OF LANDS FROM GROUND WATER
15 DISTRICTS; AMENDING SECTION 42-5256, IDAHO CODE, TO PROVIDE FOR FILING OF
16 ANY DECISIONS OR ORDERS IN THE OFFICE OF SPECIFIED COUNTY RECORDERS;
17 AMENDING SECTION 42-5257, IDAHO CODE, TO PROVIDE THAT LAND AND/OR FACILI-
18 TIES FULLY EXCLUDED FROM GROUND WATER DISTRICTS SHALL BE SUBJECT TO CER-
19 TAIN ASSESSMENTS AND OBLIGATIONS; AMENDING SECTION 42-5259, IDAHO CODE, TO
20 DELETE A REFERENCE TO IRRIGATORS; AMENDING SECTION 42-5276, IDAHO CODE, TO
21 PROVIDE THAT CERTAIN IRRIGATION DISTRICTS SHALL BE INCLUDED IN GROUND
22 WATER DISTRICTS ONLY UPON FILING OF A PETITION FOR ANNEXATION; PROVIDING
23 SEVERABILITY; AND DECLARING AN EMERGENCY.
24 Be It Enacted by the Legislature of the State of Idaho:
25 SECTION 1. That Section 42-5201, Idaho Code, be, and the same is hereby
26 amended to read as follows:
27 42-5201. SHORT TITLE -- TITLE OF DISTRICTS -- DEFINITIONS. This chapter
28 is known as the "Ground Water District Act"; the districts created hereunder
29 may be termed "ground water districts." When used in this chapter, and unless
30 otherwise specified, the following terms shall be defined as follows:
31 (1) "Board" means the board of directors of a ground water district orga-
32 nized pursuant to this chapter.
33 (2) "Corporation" means a corporation or limited liability company.
34 (3) "County commission" means the board of county commissioners or any
35 other governing board or authority for a county, as provided by law.
36 (4) "Department" means the Idaho department of water resources.
37 (5) "Director" means the director of the department of water resources.
38 (6) "District" means a ground water district established, or to be estab-
39 lished, pursuant to this chapter.
40 (7) "Ground water" when used in this chapter means water under the sur-
41 face of the ground whatever may be the geologic structure in which it is
42 standing or moving, as provided in section 42-230(a), Idaho Code.
43 (8) "Ground water user" means the legal or beneficial owner of a ground
44 water right, or the user of a ground water right pursuant to lease or contract
45 of a ground water right to divert ground water of the state for a beneficial
46 use or purpose, except for those diverting under rights used solely for domes-
47 tic or stock use as defined by sections 42-111 and 42-1401A, Idaho Code, and
48 provided, that for purposes of this chapter, the term ground water user shall
49 not include any ground water right owned by an Indian tribe or by tribal mem-
50 bers for diversion and use within an Indian reservation, ground water rights
51 owned by the United States or ground water rights owned by the state of Idaho.
52 A ground water user is within the boundary of a ground water district if the
3
1 well or other point of diversion used by that ground water user is within the
2 boundary. A husband and wife together diverting ground water pursuant to right
3 shall constitute one (1) ground water user. Ground water user includes both a
4 ground water irrigator and a nonirrigator as defined in this chapter.
5 (9) "Ground water irrigator" means a ground water user holding a ground
6 water right for irrigation purposes within a ground water district.
7 (10) "Land" or "lands," when used in the context of the property of a
8 ground water user subject to district assessment under this chapter, means the
9 real property where ground water is diverted or placed to beneficial use,
10 including the facilities in or through which a ground water user makes benefi-
11 cial use of ground waters.
12 (11) "Nonirrigator" means a ground water user holding a ground water right
13 for commercial, municipal, or industrial purposes within a ground water dis-
14 trict. A ground water user will be deemed a nonirrigator for purposes of this
15 chapter even though: (a) some component of the user's ground water use is for
16 irrigation; or (b) the user holds a ground water right for irrigation that is
17 incidental to, or normally associated with, the user's commercial, municipal
18 or industrial purpose.
19 (120) "Member" means a ground water user whose lands, facilities and/or
20 water rights are included in and subject to a ground water district and its
21 policies.
22 (131) "Mitigation plan" means a plan to prevent or compensate for material
23 injury to holders of senior water rights caused by the diversion and use of
24 water by the holders of junior priority ground water rights who are partici-
25 pants in the mitigation plan.
26 (142) "Person" means an individual, partnership, trust, estate, associa-
27 tion, corporation, municipal corporation, the state of Idaho and any of its
28 agencies, the United States, an Indian tribe, a public corporation, or any
29 other public or private entity.
30 (153) "Public corporation" means counties, city and counties, cities,
31 school districts, municipal water districts, irrigation districts, recharge
32 districts, water districts, park districts, subdistricts, and all other gov-
33 ernmental agencies of this state, having the power of levying or providing for
34 the levy of general or special taxes or special assessments, and any political
35 subdivision of another state of the United States.
36 (164) "Water right" means the legal right to divert and beneficially use
37 the public waters of the state of Idaho where such right is evidenced by a
38 decree, a permit or a license issued by the department, a beneficial or con-
39 stitutional use right evidenced by an adjudication claim or claim based on
40 section 42-243, Idaho Code, or a right based on federal law.
41 SECTION 2. That Section 42-5207, Idaho Code, be, and the same is hereby
42 amended to read as follows:
43 42-5207. ORGANIZATION HEARING BEFORE COUNTY COMMISSION -- ORDER OF COUNTY
44 COMMISSION. (1) After receiving the report of the department of water
45 resources, the county commission shall conduct a hearing on the petition. If
46 the county commission determines that the requisite number of signatures were
47 not gathered on the petition, the board shall adjourn the hearings for two (2)
48 weeks for the purpose of enabling the petitioners to gather additional signa-
49 tures. The petitioners may amend the boundaries of the proposed district at
50 the hearing to include or exclude lands of those ground water irrigators users
51 who provide written notice or who appear at the hearing requesting that their
52 lands be either included or excluded, to meet the recommendations of the
53 department, or as they may find advisable to achieve suitable district bound-
4
1 aries. The county commission shall accept any additional nominations of per-
2 sons to be directors at the hearing or the nominations may be filed with the
3 county clerk. The nominations must be signed by at least six (6) ground water
4 users from the proposed district.
5 (2) When the county commission has determined to proceed with the peti-
6 tion, it may adjourn the hearing from time to time, not exceeding four (4)
7 weeks in all, and on final hearing, the county commission:
8 (a) May make such other changes in the proposed boundaries of the dis-
9 trict and divisions within the district as it may find proper; and
10 (b) Shall make an order on its records describing the area which it shall
11 have determined to include in the district, and stating that lands of
12 ground water users within such area will be organized into a ground water
13 district if the vote of the electors accepts organization of the district.
14 (3) The county commission shall notify the department of the final action
15 by mailing or faxing a copy of the order to the department within seven (7)
16 days of the board's decision. If the boundaries of the proposed ground water
17 district differ from the boundaries contained in the department's original
18 report, the department shall prepare a revised list of the ground water users
19 within such proposed district by name, address, ground water right number,
20 point of diversion, and cubic feet per second per ground water right and
21 return it to the county commission.
22 SECTION 3. That Section 42-5210, Idaho Code, be, and the same is hereby
23 amended to read as follows:
24 42-5210. QUALIFICATIONS OF VOTERS FOR DISTRICT ELECTIONS. (1) Any ground
25 water irrigator, and any nonirrigator who is a member for all purposes, user
26 within the proposed district shall be entitled to vote at any election held
27 under the provisions of this chapter. The production of documentation of a
28 water right as described in section 42-5201(164), Idaho Code, shall be suffi-
29 cient evidence of ground water use for purposes of acting as an elector under
30 this chapter. A representative of a ground water user shall be so designated
31 by written proxy signed by the ground water user except that the vote of a
32 state, city or county government may be cast by an elected or appointed offi-
33 cial of the agency, or his designee. A corporation or partnership shall vote
34 or otherwise act by a single individual who is authorized by the corporation
35 or partnership to act on its behalf. A corporation or partnership must fur-
36 nish the election officials a written designation stating the name of the
37 individual who is authorized to vote and otherwise act for the corporation or
38 partnership.
39 (2) Any ground water user who becomes a member of a district solely for
40 mitigation purposes:
41 (a) Shall be entitled to vote only in those district elections concerning
42 whether to incur indebtedness as specified in section 42-5234, Idaho Code;
43 and
44 (b) Shall be ineligible to nominate directors or officers of the dis-
45 trict, to serve in such capacities, or otherwise to participate in the
46 governance of the district.
47 (3) A nonirrigator may participate in the election to determine whether a
48 district will be formed only according to the following provisions:
49 (a) The nonirrigator shall notify the judges of election in writing at
50 least ten (10) working days prior to the date of the election that such
51 person supports the formation of the district, elects to become either a
52 member for all purposes, or a member only for mitigation purposes as
53 described in section 42-5214, Idaho Code, should it be formed, and, by
5
1 such notice, casts its vote(s) in favor of formation.
2 (b) The notification shall contain a legal description of the land
3 through which the nonirrigator places ground waters to beneficial use, a
4 statement of the amount of such person's ground water right in cubic feet
5 per second of diversions, and a copy of the ground water right documenta-
6 tion described in section 42-5201(16), Idaho Code.
7 (c) Once the judges of election have accepted the notification described
8 in subsection (3)(b) of this section, they shall duly record the
9 nonirrigator's vote(s) in favor of district formation in the canvassing of
10 votes carried out pursuant to section 42-5213, Idaho Code.
11 (d) If the voting results in the formation of the district, the
12 nonirrigator who provided such notification thereafter shall be a full
13 member or member for mitigation purposes of such district, whichever the
14 case may be, and shall have all obligations, rights, and limitations
15 attaching thereto.
16 (4) Each ground water user shall have one (1) vote for each cubic foot
17 per second, or proportion thereof (rounded to the nearest tenth of a cubic
18 foot per second), for which such ground water user holds a ground water right
19 whose point of diversion is within the proposed district boundaries.
20 SECTION 4. That Section 42-5212, Idaho Code, be, and the same is hereby
21 amended to read as follows:
22 42-5212. REGISTRATION NOT REQUIRED. No registration shall be required in
23 any ground water district election, but in lieu thereof the judges of election
24 shall require every elector to subscribe to an elector's oath as prerequisite
25 to casting his vote, and such oath shall be the usual elector's oath with the
26 following words added thereto, "I am a resident of .......... county, and I am
27 a ground water user within the ....... (proposed) ground water district, or I
28 am a representative of a ground water user within the ....... (proposed)
29 ground water district" and present evidence of such ground water use pursuant
30 to section 42-5201(164), Idaho Code, if they do not appear on the department's
31 list as provided in section 42-5206, Idaho Code.
32 SECTION 5. That Section 42-5214, Idaho Code, be, and the same is hereby
33 amended to read as follows:
34 42-5214. GROUND WATER USERS INCLUDED WITHIN THE DISTRICT -- NOTICE AND
35 HEARING FOR MEMBERS INCLUDED IN DISTRICT AFTER MARCH 31, 2005 -- ORDER --
36 APPEAL AND CONCLUSIVENESS. (1) All ground water irrigators users within the
37 boundaries of the district are shall be members of the district and subject to
38 assessments, rights and responsibilities established by the district as set
39 forth in this chapter, notwithstanding any change in the ownership or control
40 of the property of the water user, whether by way of transfer, exchange, con-
41 veyance, assignment, lease, or otherwise, to which the water right or rights
42 used to determine assessments are appurtenant, unless excluded from the dis-
43 trict pursuant to sections 42-5251 through 42-5257, Idaho Code. Except as pro-
44 vided in section 42-5276, Idaho Code, any ground water user who previously was
45 not a member as of March 31, 2005, shall be included as a member effective
46 upon order of the board finding and confirming that inclusion of such ground
47 water user is in the best interests of the district and that such ground water
48 user shall receive benefits from such inclusion as a member. Such order may be
49 made only after the board shall have caused a notice of such hearing to be
50 published in the manner of notices of elections, which notice shall state that
51 all persons interested in or that may be affected by such inclusion as a mem-
6
1 ber shall appear at the time and place named in the notice and show cause in
2 writing why they should not be included as a member. The board, at the time
3 mentioned in said notice shall hear any objections to inclusion. The failure
4 of any person to file with the district office an objection to inclusion as a
5 member prior to the noticed hearing shall be taken as an assent on his part to
6 such inclusion as a member of the district. Any order confirming the inclusion
7 of ground water users as members of the district shall be certified by the
8 board president and secretary and filed for record in the recorder's office of
9 each county within which are situated any lands of the district and notice of
10 the order shall be published in the manner of notices of elections. Any person
11 who properly has filed an objection to inclusion as a member shall have the
12 right to appeal to the district court of the county in which such person's
13 ground water right is situated, provided such appeal shall be made within
14 thirty (30) days from the date of publication of the order confirming such
15 inclusion. After said thirty (30) day appeal period, no one shall have any
16 cause or right of action to contest the legality, formality or regularity of
17 said order of inclusion for any reason whatsoever, and thereafter, said inclu-
18 sion and the constitution and validity of the district shall be considered
19 valid and incontestable without limitation. Any ground water user who previ-
20 ously was not a member of the district as of March 31, 2005, that is included
21 as a member upon order of the board shall be liable for his proportionate
22 share of all costs of the district incurred after such date, including his
23 proportionate share of all bonded, warrant or other indebtedness incurred
24 prior to March 31, 2005.
25 (2) All nonirrigators within the boundaries of the district who voted
26 according to notice as provided in section 42-5210(3), Idaho Code, are members
27 of the district as specified in such notice.
28 (3) A nonirrigator also may become a member of a district by providing,
29 within sixty (60) days after the date on which the district is formed, written
30 notice to the district board that the nonirrigator wishes to join the district
31 either as a member for all purposes or as a member for mitigation purposes
32 only. Upon providing such notice, the nonirrigator shall be either a member
33 for all purposes or a member for mitigation purposes only, as specified in the
34 notice, and shall be subject to assessment accordingly as provided in this
35 chapter. After such sixty (60) day period, a nonirrigator may become a member
36 of a district only through the annexation procedure described in sections
37 42-5245 through 42-5249, Idaho Code.
38 (4) Except as provided for municipal, commercial, industrial, federal and
39 tribal ground water users in subsection (1) of this section, aAny person whose
40 permit, license, or other entitlement to appropriate ground water was acquired
41 after the formation of the district, or who appropriates ground water for uses
42 not requiring a permit after the formation of the district, but qualifies as a
43 ground water user under subsection (108) of section 42-5201, Idaho Code,
44 within the area of the district in all other respects, shall be deemed
45 included within and subject to assessment by the district, if benefitted
46 either directly or indirectly by the district as of the date the permit,
47 license, or entitlement is acquired.
48 SECTION 6. That Section 42-5219, Idaho Code, be, and the same is hereby
49 amended to read as follows:
50 42-52198A. WHEN ELECTION NOT REQUIRED. In any election for directors if,
51 after the expiration of the date for filing written nominations for the office
52 of director, it appears that only one (1) qualified candidate has been nomi-
53 nated thereby for each position to be filled, it shall not be necessary to
7
1 hold an election, and the board of directors shall, within five (5) days after
2 expiration of the date for filing written nominations, declare such candidate
3 elected as director. The procedure set forth in this section shall not apply
4 to any other district election.
5 SECTION 7. That Section 42-5220, Idaho Code, be, and the same is hereby
6 amended to read as follows:
7 42-522018B. NOTICE OF ELECTION. The secretary of the district shall give
8 notice of all elections in the district by posting the same in five (5) public
9 places in each county in which a part of the district is situated and in the
10 office of the board of directors at least four (4) weeks before the day of
11 such election, or by publication of the notice once a week for four (4) suc-
12 cessive weeks in a newspaper or newspapers published in each of said counties
13 or in a newspaper of general circulation therein. Notices shall state the time
14 of the election and the location of polling places within the district and the
15 directors to be elected or other question to be voted upon, as the case may
16 be.
17 SECTION 8. That Section 42-5221, Idaho Code, be, and the same is hereby
18 amended to read as follows:
19 42-52218C. CONDUCT OF ELECTIONS. The election shall be conducted as
20 nearly as practicable in accordance with the general laws of the state; pro-
21 vided that no particular form of ballot shall be required and the provisions
22 of the election laws as to the form and distribution of ballots shall not
23 apply and each ballot must indicate the number of cubic feet per second asso-
24 ciated with the ballot cast. The board of directors shall designate polling
25 places in such number as it may deem necessary. At least ten (10) days before
26 the holding of any election, the board shall appoint three (3) electors to
27 serve as judges of election at each polling place. The judges shall perform
28 the same duties as near as may be, as judges of election under the general
29 laws of the state. Immediately after the election, the judges of election
30 shall forward the official results to the secretary of the district.
31 SECTION 9. That Section 42-5222, Idaho Code, be, and the same is hereby
32 amended to read as follows:
33 42-522218D. CANVASS OF RETURNS -- DECLARATION OF WINNERS. On the first
34 Monday after each election, or at a time designated by the board of directors,
35 the board shall meet at its usual place of meeting and proceed to canvass the
36 returns. By order entered on its minutes, the board shall declare elected the
37 person or persons having the highest number of votes for each office.
38 SECTION 10. That Chapter 52, Title 42, Idaho Code, be, and the same is
39 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
40 ignated as Section 42-5219, Idaho Code, and to read as follows:
41 42-5219. DIRECTORS AT LARGE. In the event a district is divided into six
42 (6) or fewer divisions, the district is authorized to elect one (1) to two (2)
43 directors at large. Directors at large shall be elected at the annual meeting
44 of the district by a two-thirds (2/3) majority of the members present at the
45 meeting. Every director at large elected pursuant to the provisions of this
46 section shall be a ground water user in the district. Directors at large shall
47 hold office for a term of two (2) years, or until their successors are elected
8
1 and qualified. Provided however, that in no event shall a district have more
2 than a total of seven (7) directors serving at any time whether elected pursu-
3 ant to the provisions of section 42-5218, Idaho Code, or pursuant to this sec-
4 tion.
5 SECTION 11. That Section 42-5224, Idaho Code, be, and the same is hereby
6 amended to read as follows:
7 42-5224. POWERS AND DUTIES OF BOARD OF DIRECTORS. The board shall, in
8 addition to any other powers and duties provided in this chapter, and provided
9 that nothing in this chapter shall abrogate or impair the right of any person
10 to take any action necessary to acquire, protect, challenge or defend any
11 water right, have the following powers and duties:
12 (1) To acquire, and/or construct, operate, control or use by appropria-
13 tion, grant, purchase, bequest, devise, contract or lease works or facilities,
14 water rights, water permits or licenses, well-drilling permits, wells, pipe-
15 lines, ditches and any other real and personal property (including easements
16 and rights-of-way) or contract entitlement within or without the district nec-
17 essary or convenient to fully exercise its powers;
18 (2) To sell, lease, encumber, alienate, or otherwise dispose of works or
19 facilities, water, water rights, wells, pipelines, ditches, reservoirs,
20 recharge facilities, and any other real and personal property owned by the
21 district within or without its boundaries, and to incur indebtedness on behalf
22 of the district as specified in this chapter;
23 (3) To enter into contracts and agreements, cooperative and otherwise,
24 including contracts with the United States of America and any of its agencies
25 or instrumentalities, and tribes, and contracts with corporations, public or
26 private, municipalities, or governmental subdivisions necessary or convenient
27 to fully exercise its powers;
28 (4) To hire and retain agents, employees, engineers, hydrologists, geolo-
29 gists, and attorneys as shall be necessary and convenient to transact the
30 district's business and to represent the district's interests;
31 (5) To levy assessments for the operation of the district and its pro-
32 grams;
33 (6) To represent district members, with respect to their individual water
34 rights, in general water rights adjudications and other legal and administra-
35 tive proceedings or before political bodies, provided that the board may levy
36 assessments for these matters against only those members who have given writ-
37 ten consent for the representation;
38 (7) To represent district members in proceedings or meetings of a water
39 district established by the director of the department notwithstanding any
40 provision to the contrary in chapter 6, title 42, Idaho Code. Provided how-
41 ever, that the board shall not be authorized to cast a vote in any proceeding
42 or meeting of a water district established pursuant to chapter 6, title 42,
43 Idaho Code, on behalf of any district member who has, prior to such proceeding
44 or meeting, given written notice to the board and to the water district that
45 such district member intends to vote on his own behalf, or on behalf of any
46 district member who attends such meeting or proceeding and intends to vote on
47 his own behalf. The board shall provide a verified list of the water rights
48 that it represents at any water district proceeding or meeting to the chairman
49 of the water district proceeding or meeting.;
50 (8) To appropriate, develop, store, and transport water within the state;
51 (9) To acquire stock in canal companies, water companies, and water
52 users' associations;
53 (10) To invest any surplus money in the district treasury pursuant to the
9
1 public depository law as contained in chapter 1, title 57, Idaho Code;
2 (11) To develop, maintain, operate and implement mitigation plans designed
3 to mitigate any material injury caused by ground water use within the district
4 upon senior water uses within and/or without the district;
5 (12) To finance the repair or abandonment of wells in the ground water
6 district which have experienced or are experiencing declines in water level or
7 water pressures because of reasons including, but not limited to, flow, leak-
8 age, and waste from improper construction, maintenance, and operation of
9 wells;
10 (13) To have and exercise the power of eminent domain in the manner pro-
11 vided by law for the condemnation of private property for easements, rights-
12 of-way, and other rights of access to property necessary to the exercise of
13 the mitigation powers herein granted, both within and without the district;
14 (14) To sue and be sued, and be a party to suits, actions and proceedings;
15 (15) To enter into joint powers agreements and/or memoranda of understand-
16 ing with other districts, governmental or quasi-public entities;
17 (16) To develop and acquire water rights for, and operate, aquifer storage
18 or recharge projects;
19 (17) To monitor, measure, study, and implement programs in the interests
20 of the district's members regarding the protection of ground water diversions,
21 depth of water in wells, aquifer water levels and characteristics;
22 (18) To adopt and amend bylaws not in conflict with the constitution and
23 laws of the state for carrying on the business, objects and affairs of the
24 board and of the district and to establish a fiscal year;
25 (19) To enter upon land to make surveys, locate district property, works,
26 or facilities, and to otherwise conduct the affairs of the district;
27 (20) To make, record and report annually to the director sufficient mea-
28 surements of diversions and water levels of district members to allow the dis-
29 trict to be excluded from any water measurements district created pursuant to
30 sections 42-705 through 42-715, Idaho Code.;
31 (21) To manage and conduct the affairs of the district and to have and
32 exercise all rights and powers necessary or incidental to or implied from the
33 specific powers granted herein. Such specific powers shall not be considered
34 as a limitation upon any power necessary or appropriate to carry out the pur-
35 poses and intent of this act chapter.
36 SECTION 12. That Section 42-5232, Idaho Code, be, and the same is hereby
37 amended to read as follows:
38 42-5232. LEVY OF ASSESSMENTS. (1) The secretary of the board shall be the
39 assessor of the district, and on or before August 1 of each year shall prepare
40 an assessment book containing a full and accurate list of all lands within the
41 district that are subject to assessment under this chapter.
42 (2) At a regular meeting of the board between August 1 and November 1 of
43 each year, the board of directors shall determine the amount necessary to be
44 raised for payment of the annual payment on any and all indebtedness of the
45 district for the following year. Money received in payment of such assess-
46 ments shall be deposited in a separate fund to be known as the debt retirement
47 fund.
48 (3) The board shall, in addition, determine the assessments necessary to
49 pay, without limitation, the expenses of developing, operating or maintaining
50 any mitigation plan established by the district and the cost of contracts with
51 any person for mitigation plans, or evaluation of proposed contracts. Money
52 received in payment of such assessments shall be deposited in a separate fund
53 to be known as the mitigation expense fund.
10
1 (4) The board shall, in addition, determine the assessments necessary to
2 pay maintenance and operation of the district not related to mitigation plans
3 or purposes. These operation and maintenance duties include making the assess-
4 ment book, giving notice of assessments and making collections thereof, and
5 other duties, programs or projects of the district to the extent such duties,
6 programs or projects are not attributable to mitigation plans or purposes.
7 Money received in payment of such assessments shall be deposited in a separate
8 fund of the district to be known as the operating expense fund.
9 (5) Any ground water user who becomes a member of a district for mitiga-
10 tion purposes shall be subject to no assessment beyond his proportional share
11 of the costs, including administrative costs and other reasonable expenses, of
12 any mitigation plan or actions or activities in furtherance of the district's
13 mitigation plans or purposes.
14 (6) No assessment made pursuant to this chapter shall be a lien against
15 any municipal property.
16 (76) Except as otherwise provided in this chapter, each member shall pay
17 a proportionate share of the total of all amounts to be assessed for the pur-
18 poses aforementioned, which share shall be based on the ratio which the quan-
19 tity of water the water user is authorized to appropriate under the member's
20 ground water right(s) bears to the total quantity of water authorized for
21 appropriation under the ground water rights of all water users in the dis-
22 trict, provided, that the board shall be entitled to levy assessments that
23 adjust a member's proportionate share to take into consideration, without lim-
24 itation, priority dates, consumptive use under the members' respective ground
25 water rights, other attributes of the ground water rights appurtenant to the
26 assessed lands, and/or the benefits the member derives from a mitigation plan
27 or other activity of the district and whether the member has an individual
28 mitigation plan.
29 SECTION 13. That Section 42-5233, Idaho Code, be, and the same is hereby
30 amended to read as follows:
31 42-5233. POWER TO INCUR INDEBTEDNESS -- ASSESSMENTS TO SECURE REPAYMENT
32 -- WARRANTS. (1) In order to secure funds for the mitigation plan or plans for
33 the district, the board of directors may, by resolution duly adopted and
34 entered upon the minutes, incur indebtedness by contract with a money lending
35 institution; provided however, that the term of such indebtedness shall not
36 exceed ten thirty (130) years. To secure the repayment of any indebtedness so
37 incurred, the board shall levy assessments over the term of the indebtedness
38 in amounts sufficient to repay the interest and principal as it falls due.
39 Such assessments shall be levied in the manner and shall be subject to the
40 limitations set forth in section 42-5232, Idaho Code, and may be levied only
41 if the indebtedness has been approved at an election pursuant to sections
42 42-5234 through 42-5238, Idaho Code.
43 (2) Notwithstanding the provisions of subsection (1) of this section, the
44 board of directors may, before the collection of the first assessment, incur
45 indebtedness for the purpose of organization, or for any of the purposes of
46 this chapter, and cause warrants of the district to issue therefor, provided
47 that the total dollar amount of the warrants authorized to be issued shall not
48 exceed one dollar ($1.00) for each two-hundredths (.02) of a cubic foot per
49 second of ground water authorized to be diverted and used upon lands or facil-
50 ities located within the district. Following the collection of the first
51 assessment, the board of directors may at any time issue warrants of the dis-
52 trict for the purpose of paying claims of indebtedness against the district,
53 including salaries of officers and employees, not to exceed the district's
11
1 anticipated revenue.
2 (3) The warrants herein authorized shall be in form and substance the
3 same as county warrants or as nearly the same as may be practicable and shall
4 be signed by the chairman and attested by the secretary of said board. All
5 such warrants shall be presented by the holder thereof to the treasurer of the
6 district for payment who shall endorse thereon the day of presentation for
7 payment with the additional endorsement thereon, in case of nonpayment, that
8 they are not paid for want of funds, and such warrants shall draw interest at
9 a rate to be established by the board of directors from the date of their pre-
10 sentation to the treasurer for payment as aforesaid until such warrants are
11 paid. No warrants shall be issued in payment of any indebtedness of such dis-
12 trict for less than face or par value. It shall be the duty of the treasurer
13 from time to time when sufficient funds are available for that purpose to
14 advertise in a newspaper in the county in which the district is situated
15 requiring the presentation to the treasurer for payment of as many of the out-
16 standing warrants as are able to be paid. Ten (10) days after the first publi-
17 cation of said notice by the treasurer calling in any of said outstanding war-
18 rants, said warrants shall cease to bear interest, which shall be stated in
19 the notice. Said notice shall be published two (2) weeks consecutively and
20 said warrants shall be called in and paid in the order of their endorsement.
21 SECTION 14. That Section 42-5242, Idaho Code, be, and the same is hereby
22 amended to read as follows:
23 42-5242. ENTRY OF DELINQUENT ASSESSMENTS -- FILING OF DELINQUENCY LIST.
24 (1) On or before the 15th day of January of each year the treasurer shall
25 enter the amount of all delinquent assessments upon the assessment book, which
26 entry shall be considered to be dated as of the first day of January. Such
27 entry shall have the force and effect of a sale to the treasurer of the dis-
28 trict as grantee in trust for the district of all property to which a lien has
29 attached as a result of such unpaid assessments.
30 (2) The treasurer shall compile a list of such delinquency entries which
31 shall contain the names of the persons or entities to whom the assessments
32 were directed and the amount of such delinquent assessments together with the
33 amount of the penalties to be added thereto. A certified copy of the delin-
34 quency list, duly acknowledged by the treasurer, shall be filed with the
35 county recorder of each county in which the properties affected by such delin-
36 quent assessments are located, and the treasurer shall then provide by certi-
37 fied mail a notice of delinquency to each ground water user having a delin-
38 quent assessment.
39 (3) Upon the payment in full of any delinquent assessment and penalty
40 that was entered on a recorded delinquency list, the treasurer shall file with
41 the county recorder of each county in which the list of delinquent assessments
42 was recorded an acknowledged notice that the delinquent assessment and any
43 penalty owed has been paid in full. The treasurer shall file any notices of
44 payment of delinquent assessments with the county recorders, as required, on
45 at least a monthly basis.
46 SECTION 15. That Section 42-5244, Idaho Code, be, and the same is hereby
47 amended to read as follows:
48 42-5244. PROHIBITION AGAINST PARTICIPATION IN MITIGATION PLAN WHEN SUB-
49 JECT TO DELINQUENT ASSESSMENT OR FOR NONPAYMENT OF OTHER MITIGATION COSTS. A
50 ground water user who is delinquent in the payment of any assessment against
51 his water use under this chapter, or who has failed to pay other mitigation
12
1 costs owed to the district when due, is prohibited from being a participant in
2 any mitigation plan until such delinquent assessment, or other past due amount
3 owed for mitigation costs, is paid in full. The district shall provide the
4 director a report of such delinquent assessments, or other past due mitigation
5 costs, at the first of each month for purposes of enforcement. Prior to under-
6 taking enforcement, the director may require from the district an accounting
7 of the basis for the assessment and other mitigation costs and the apportion-
8 ment of those assessments and costs among district members. The district shall
9 inform the director immediately upon the payment of any such delinquent
10 assessment, or other past due mitigation costs. This section shall be
11 enforced by the watermaster within water districts established under chapter 6
12 of this title, and by the director pursuant to sections 42-351 and 42-1701B,
13 Idaho Code, in areas outside of such water district.
14 SECTION 16. That Section 42-5245, Idaho Code, be, and the same is hereby
15 amended to read as follows:
16 42-5245. PETITION FOR ANNEXATION OF LAND. Any ground water user, as
17 defined in section 42-5201(8), Idaho Code, as well as any user of ground water
18 for domestic or stock use as defined by sections 42-111 and 42-1401A, Idaho
19 Code, may file with the board a petition in writing praying that the land
20 and/or facilities listed under the ground water user's ground water right(s)
21 may be annexed into the district. The petition shall contain a legal descrip-
22 tion of the lands and any other information the district may require, and the
23 petitioner shall state under oath that petitioner holds the title to said
24 lands. If the ground water user is a nonirrigator, the petition shall state if
25 the ground water user is seeking to join the district solely to participate in
26 the district's mitigation plan or other mitigation activities.
27 SECTION 17. That Section 42-5248, Idaho Code, be, and the same is hereby
28 amended to read as follows:
29 42-5248. ASSESSMENTS AGAINST ANNEXED LANDS. (1) The board of directors
30 may require, as a condition to the granting of an annexation petition, that
31 the petitioners shall severally pay to the district such respective sums, as
32 nearly as the same can be estimated, as said petitioners, or their grantors,
33 would have been required to pay such district, had such lands been included in
34 such district at the time it was originally formed, together with a propor-
35 tionate share of the expenses of the district accrued since formation.
36 (2) If the petition seeks only to participate in a district mitigation
37 plan, the board may require a proportionate sum of the mitigation expenses
38 accrued since the district was originally formed to be paid as a condition to
39 the granting of an annexation petition.
40 SECTION 18. That Section 42-5251, Idaho Code, be, and the same is hereby
41 amended to read as follows:
42 42-5251. PETITION FOR EXCLUSION OF LANDS -- LANDS MAY REMAIN IN THE DIS-
43 TRICT FOR MITIGATION PURPOSES ACTION ON PETITION BY DISTRICT BOARD. Any dis-
44 trict member may file with the district board a petition requesting that the
45 member's lands be excluded from the district. The petition may request that
46 the lands either be excluded for all purposes or be excluded for all purposes
47 except mitigation. The petition shall be signed by each petitioner, but need
48 not be acknowledged and shall state that continued inclusion of the lands in
49 the district is inappropriate or unwarranted:
13
1 (1) Because the diversions of ground water under the ground water users
2 water right have no depletive effect on any water source, either individually
3 or cumulatively when considered in conjunction with other similar diversions;
4 (2) Because the only ground water use associated with the lands sought to
5 be excluded by the petition is a domestic or stock water use as defined by
6 sections 42-111 and 42-1401A, Idaho Code;
7 (3) Because the exclusion of the lands will not impair the district's
8 ability to repay debt or carry out mitigation plans;
9 (4) Because the exclusion is in the best interests of the district and
10 its members; or
11 (5) For other compelling reasons.
12 The board shall consider the petition and, based on findings concerning such
13 factors, the board shall grant or deny the petition within ninety (90) days of
14 the date it is filed, unless the board, in its sole discretion, grants a hear-
15 ing on the petition within such time period, in which case the board shall
16 issue a final decision within sixty (60) days after the conclusion of the
17 hearing. All costs incurred by the district in carrying out the exclusion pro-
18 ceeding shall be assessed as provided in section 42-5253, Idaho Code. A per-
19 son purchasing land under a written contract shall be deemed to be the owner
20 of that land for purposes of this section.
21 SECTION 19. That Section 42-5252, Idaho Code, be, and the same is hereby
22 amended to read as follows:
23 42-5252. CONTENTS OF PETITION -- REPRESENTATIONS, CERTIFICATION AND LIA-
24 BILITY -- WAIVER OF BENEFITS UPON EXCLUSION. (1) A petition for exclusion
25 shall set forth or include the following:
26 (a) A description of the land and/or facilities of petitioner for which
27 exclusion is requested, together with such evidence of ownership of the
28 land and/or facilities as is satisfactory to the district board;
29 (b) A representation that no mortgagee or other person holds a lien of
30 record in the county where the land for which exclusion is requested is
31 located, for which the lienholder's consent to the exclusion is required
32 or that, if such consent is required, the consent has been granted by the
33 lienholder;
34 (c) If the member seeks exclusion for all purposes, aAn explicit written
35 waiver and relinquishment, on a form provided by the board or otherwise,
36 of all right to rely upon or be covered by any program, plan, activity or
37 benefits of any kind provided by or through the district;
38 (d) If the member seeks to be excluded from the district for all purposes
39 except mitigation, an explicit written waiver and relinquishment stating
40 that the member recognizes and agrees that:
41 (i) The member no longer will be entitled to vote or participate in
42 the governance of the district, to nominate directors, or to serve as
43 a director of the district except as specified in this chapter;
44 (ii) The member will remain subject to all assessments pertaining to
45 the district's mitigation program(s) or plans;
46 (iii) The member will be entitled to receive no benefits of any kind
47 from the district except those pertaining to mitigation purposes.
48 (e) Regardless of whether the exclusion will be for all purposes or for
49 all except mitigation purposes, aAn explicit written statement, on a form
50 provided by the board or otherwise, that the member recognizes and agrees
51 that he will remain liable to the district, and subject to assessment, for
52 any financial indebtedness the member may have to the district for indebt-
53 edness incurred before exclusion occurs.
14
1 (2) The district board shall return to the petitioner any petition not
2 accompanied by the information required in subsection (1) of this section, and
3 no further action shall be required of the board with respect to such peti-
4 tion. The petitioner shall be liable for any expenses or damages to lienhold-
5 ers or to other landowners or to the district resulting directly or indirectly
6 from wrongful exclusion of lands by reason of untrue or incorrect statements
7 in the petition.
8 (3) The petition for exclusion shall be signed by the member and be
9 acknowledged in front of a notary public in the same manner as for deeds of
10 land.
11 SECTION 20. That Section 42-5253, Idaho Code, be, and the same is hereby
12 amended to read as follows:
13 42-5253. ORDER OF EXCLUSION. (1) Upon receipt of a properly completed
14 petition for exclusion, In the event the district's board of directors grants
15 a petition for exclusion, the board shall, by resolution, shall make an order
16 forthwith excluding the lands described in the petition either for all pur-
17 poses. or for only those purposes not related to mitigation. No hearing is
18 required prior to granting a petition for exclusion.
19 (2) At a minimum, the order of exclusion shall specify that:
20 (a) Lands excluded for all purposes shall not be a part of or be entitled
21 to receive any benefits from the district;
22 (b) Lands excluded only for purposes not related to mitigation, shall
23 continue to be part of the district for mitigation purposes only and shall
24 be assessed for these purposes as provided under this chapter;
25 (c) Any excluded lands are subject to the requirements of section
26 42-5257, Idaho Code.
27 (dc) When the petition is filed on or before December 1 in any calendar
28 year, any assessment, other than those specified in section 42-5257, Idaho
29 Code, against the land for any calendar year subsequent to the year in
30 which the petition was filed shall not be valid and no lien for any such
31 attempted assessment shall attach under section 42-5240, Idaho Code.
32 SECTION 21. That Section 42-5256, Idaho Code, be, and the same is hereby
33 amended to read as follows:
34 42-5256. CHANGES TO BE FILED FOR RECORD. The Any decision and order of
35 the board of directors or the district court, in case of appeal, excluding the
36 petitioner's land and changing the boundaries of such ground water district
37 shall be filed for record in the recorder's office of the county or counties
38 within which are situated the lands of such ground water district.
39 SECTION 22. That Section 42-5257, Idaho Code, be, and the same is hereby
40 amended to read as follows:
41 42-5257. EXCLUSION -- EFFECT -- OBLIGATIONS OUTSTANDING -- ENFORCEMENT --
42 PAYMENT -- CERTIFICATE. (1) Except as otherwise provided in this chapter, land
43 and/or facilities excluded from any ground water district shall not thereafter
44 be entitled to any of the rights and benefits of the district and shall be
45 deemed to have fully relinquished all such rights and benefits.
46 (2) Land and/or facilities fully excluded from a district and those
47 excluded only from nonmitigation purposes shall be subject to assessment and
48 be otherwise chargeable for the payment and discharge of all obligations out-
49 standing at the time of the entry of the exclusion order as fully as though
15
1 the land had not been excluded. Such obligations shall include, but are not
2 limited to, their proportionate share of any of the district's existing
3 indebtedness that was incurred for a project or activity that: (a) provided a
4 benefit to such lands prior to the exclusion and for which benefit the
5 excluded lands remain indebted; or (b) continues to benefit such lands even
6 after the exclusion. Where either of these circumstances exists, excluded
7 lands shall remain a part of the district for the purpose of discharging such
8 existing contract indebtedness, and otherwise shall be obligated to pay all
9 regular and special assessments to retire such debt as if they had not been
10 excluded. The district's board of directors may allow any debt or obligation
11 against any excluded land and/or facility to be paid in installments or in any
12 other manner the board deems equitable.
13 (3) All provisions which could be used to compel the payment by excluded
14 land of its portion of the outstanding obligations had the exclusion not
15 occurred, may be used to compel the payment on the part of the land of the
16 portion of the outstanding obligations of the district for which it is liable.
17 (4) When any member obtaining the exclusion of land from a ground water
18 district has paid to the district all of the debts and obligations of the dis-
19 trict assessable, chargeable or allocable to the land and/or facility
20 excluded, the district may issue its certificate of full payment executed by
21 the president and secretary of the district, and acknowledged so that the cer-
22 tificate may be recorded in the records of the county wherein the land is sit-
23 uate.
24 SECTION 23. That Section 42-5259, Idaho Code, be, and the same is hereby
25 amended to read as follows:
26 42-5259. PARTICIPATION BY NONMEMBER IN DISTRICT SOLELY FOR MITIGATION
27 PURPOSES. Upon written request from a ground water user who is not a member of
28 a district, and regardless of whether such user is an irrigator, a district
29 board of directors shall enter a contract with such nonmember pursuant to
30 which the nonmember shall be allowed to participate fully in, and obtain all
31 benefits of, any mitigation plan, purpose or activity the district currently
32 has in force or is developing, provided that:
33 (1) The board finds that the plan is likely to be effective in mitigating
34 the effects of such nonmember's ground water use, and that including the non-
35 member within the mitigation plan's coverage will not impair the plan's effec-
36 tiveness as to district members;
37 (2) If the district's mitigation plan has been approved by the director,
38 the board shall evaluate the contract request in accordance with any condi-
39 tions of the district's mitigation plan which address equitable participation
40 by ground water users who do not initially participate in such mitigation
41 plan;
42 (3) Before the contract may be effective, the board may collect from the
43 nonmember a payment adequate to compensate the district for the nonmember's
44 proportional share of the costs the district already has incurred in develop-
45 ing and implementing the mitigation plan;
46 (4) The board may include in the contract a provision requiring the non-
47 member to pay a reasonable surcharge, either annually or on some other basis,
48 to reimburse the district for such nonmember's proportional share of those
49 past or future costs of operating the district attributable to formulating or
50 implementing the mitigation plan or plans in which the nonmember is partici-
51 pating;
52 (5) The board may require the nonmember to provide security to assure the
53 payment of all assessments and charges related to the contract;
16
1 (6) Nothing in this section shall be interpreted to limit the district's
2 ability to enter into a contract with nonmembers pursuant to terms and condi-
3 tions acceptable to both parties.
4 SECTION 24. That Section 42-5276, Idaho Code, be, and the same is hereby
5 amended to read as follows:
6 42-5276. INCLUSION OF IRRIGATION DISTRICTS ORGANIZED UNDER TITLE 43.
7 Where the water supply for lands is ground water provided by an irrigation
8 district established under title 43, Idaho Code, and such lands are included
9 in and subject to assessment by the irrigation district, such lands shall be
10 included in a ground water district organized under the provisions of this
11 chapter only if the board of the irrigation district serves notice in the same
12 manner as that provided for nonirrigators in section 42-5214(2) and (3), Idaho
13 Code files a petition for annexation into the district under section 42-5245,
14 Idaho Code.
15 SECTION 25. SEVERABILITY. The provisions of this act are hereby declared
16 to be severable and if any provision of this act or the application of such
17 provision to any person or circumstance is declared invalid for any reason,
18 such declaration shall not affect the validity of the remaining portions of
19 this act.
20 SECTION 26. An emergency existing therefor, which emergency is hereby
21 declared to exist, this act shall be in full force and effect on and after its
22 passage and approval.
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STATEMENT OF PURPOSE
RS 15184
The purpose of this legislation is to require mandatory
membership for all ground water users except for domestic and
livestock water rights. The reason ground water districts want
this to change is to insure the mitigation and district
operational costs are equally spread to all ground water users
who receive benefits. Ground water district membership has been
voluntary since 1995 but ever increasing mitigation and
operational costs have stretched the financial limits of ground
water district members. Ground water districts believe all ground
water users who benefit from mitigation and ground water district
operational costs should become members and pay their fair share.
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 ground water district members.
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 372