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H0527.........................................by RESOURCES AND CONSERVATION
ENCROACHMENTS - Amends existing law to provide for the recordation of
permits issued for noncommercial navigational encroachments; to provide for
the effect of recordation; to provide for community navigational
encroachments; to provide for application process and procedure for
community navigational encroachments; and to provide for recordation of
permits issued for nonnavigational encroachments, commercial navigational
encroachments and community navigational encroachments.
02/01 House intro - 1st rdg - to printing
02/02 Rpt prt - to Res/Con
02/16 Rpt out - rec d/p - to 2nd rdg
02/17 2nd rdg - to 3rd rdg
02/22 3rd rdg - PASSED - 68-0-2
AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer,
Bedke, Bell, Bilbao, Black, Block, Boe, Bolz, Brackett, Cannon,
Chadderdon, Clark, Collins, Crow, Deal, Denney, Edmunson, Ellsworth,
Eskridge, Field(18), Field(23), Garrett, Hart, Harwood, Henbest,
Henderson, Jaquet, Kemp, Lake, LeFavour, Loertscher, Martinez,
Mathews, McGeachin, McKague, Miller, Mitchell, Nielsen, Nonini,
Pasley-Stuart, Pence, Raybould, Ring, Ringo, Roberts, Rusche,
Rydalch, Sali(Sali), Sayler, Schaefer, Shepherd(2), Shepherd(8),
Shirley, Skippen, Smith(30), Smith(24), Smylie(Luker), Snodgrass,
Stevenson, Trail, Wills, Wood, Mr. Speaker
NAYS -- None
Absent and excused -- Bradford, Moyle
Floor Sponsor - Sayler
Title apvd - to Senate
02/23 Senate intro - 1st rdg - to Res/Env
03/13 Rpt out - rec d/p - to 2nd rdg
03/14 2nd rdg - to 3rd rdg
03/16 3rd rdg - PASSED - 35-0-0
AYES -- Andreason, Brandt, Broadsword, Bunderson, Burkett,
Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis,
Fulcher, Gannon, Geddes, Goedde, Hill, Jorgenson, Kelly, Keough,
Langhorst, Little, Lodge, Malepeai, Marley, McGee, McKenzie, Pearce,
Richardson, Schroeder, Stegner, Stennett, Sweet, Werk, Williams
NAYS -- None
Absent and excused -- None
Floor Sponsor - Langhorst
Title apvd - to House
03/17 To enrol
03/20 Rpt enrol - Sp signed
03/21 Pres signed - To Governor
03/22 Governor signed
Session Law Chapter 132
Effective: 07/01/06
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature Second Regular Session - 2006
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 527
BY RESOURCES AND CONSERVATION COMMITTEE
1 AN ACT
2 RELATING TO NAVIGATIONAL AND NONNAVIGATIONAL ENCROACHMENTS; AMENDING SECTION
3 58-1305, IDAHO CODE, TO PROVIDE FOR THE RECORDATION OF PERMITS ISSUED FOR
4 NONCOMMERCIAL NAVIGATIONAL ENCROACHMENTS, TO PROVIDE FOR THE EFFECT OF
5 RECORDATION AND TO MAKE TECHNICAL CORRECTIONS; AND AMENDING SECTION
6 58-1306, IDAHO CODE, TO PROVIDE FOR COMMUNITY NAVIGATIONAL ENCROACHMENTS,
7 TO PROVIDE CORRECT TERMINOLOGY, TO PROVIDE FOR APPLICATION PROCESS AND
8 PROCEDURES RELATING TO COMMUNITY NAVIGATIONAL ENCROACHMENTS, TO PROVIDE
9 FOR THE RECORDATION OF PERMITS ISSUED FOR NONNAVIGATIONAL ENCROACHMENTS,
10 COMMERCIAL NAVIGATIONAL ENCROACHMENTS AND COMMUNITY NAVIGATIONAL ENCROACH-
11 MENTS AND TO MAKE TECHNICAL CORRECTIONS.
12 Be It Enacted by the Legislature of the State of Idaho:
13 SECTION 1. That Section 58-1305, Idaho Code, be, and the same is hereby
14 amended to read as follows:
15 58-1305. NONCOMMERCIAL NAVIGATIONAL ENCROACHMENTS -- PROCEDURES --
16 REPAIRS -- FORMS. (a) Applications for construction, enlargement or replace-
17 ment of navigational encroachments not extending beyond the line of navigabil-
18 ity nor intended primarily for commercial use shall be processed by the board
19 with a minimum of procedural requirements and shall not be denied nor appear-
20 ance required except in the most unusual of circumstances or if the proposed
21 encroachment infringes upon or it appears it may infringe upon the riparian or
22 littoral rights of an adjacent property owner.
23 (b) If the plans of the proposed encroachment indicate such infringement
24 will or may occur, the board shall require that the applicant secure the con-
25 sent of such adjacent owner or that he be given notice of the application by
26 personal service or by certified or registered mail, return receipt requested,
27 directed to him at his usual place of address, which, if not otherwise known,
28 shall be the address shown on the records of the county treasurer or assessor,
29 and such adjacent owner shall have ten (10) days from the date of personal
30 service or receipt of certified or registered mail to file objection with the
31 board. The application itself shall be deemed sufficient notice if the adja-
32 cent owner is the state of Idaho.
33 (c) In the event objection to the application is filed by an adjacent
34 owner or if the board deems it advisable because of the existence of unusual
35 circumstances, the board shall fix a time, no later than sixty (60) days from
36 the date of filing application, and a place, for affording the applicant and
37 the adjacent owner filing objection to appear and present evidence in support
38 of or in opposition to the application and within forty-five (45) days (45)
39 thereafter shall render a decision and give notice thereof to the parties con-
40 cerned who may thereafter resort to appellate procedures prescribed in section
41 58-147 58-1306, Idaho Code.
42 (d) A permit shall not be required for repair of an existing navigational
43 encroachment.
2
1 (e) Applications submitted under this section shall be upon forms to be
2 furnished by the board and shall be accompanied by plans of the proposed
3 navigational encroachment containing information required by section 58-143
4 58-1302(k), Idaho Code, and such other information as the board may by rule or
5 regulation require in conformance with the intent and purpose of this chapter.
6 (f) If notice to an adjacent owner is not required or if the adjacent
7 owner has consented to the proposed encroachment or has failed to file objec-
8 tion to the proposed encroachment within the time allowed following service of
9 notice, the board shall act upon the application as expeditiously as possible
10 but no later than sixty (60) days from receipt of the application and failure
11 to act within such time shall constitute approval of the application.
12 (g) All permits issued for noncommercial navigational encroachments shall
13 be recorded in the records of the county in which the encroachment is located
14 and shall be a condition of issuance of a permit. Proof of recordation shall
15 be furnished to the department by the permittee before a permit becomes valid.
16 Such recordation shall be at the expense of the permittee. Recordation of an
17 issued permit serves only to provide constructive notice of the permit to the
18 public and subsequent purchasers and mortgagees, but conveys no other right,
19 title or interest on the permittee other than validation of said permit.
20 SECTION 2. That Section 58-1306, Idaho Code, be, and the same is hereby
21 amended to read as follows:
22 58-1306. NONNAVIGATIONAL OR COMMERCIAL NAVIGATIONAL ENCROACHMENTS -- COM-
23 MUNITY NAVIGATIONAL ENCROACHMENTS -- NAVIGATIONAL ENCROACHMENTS BEYOND LINE OF
24 NAVIGABILITY -- APPLICATION -- PROCEDURES -- PUBLICATION OF NOTICE -- HEARING
25 -- APPEALS -- RECONSIDERATION -- CRITERIA PRIORITY. (a) Applications for con-
26 struction, enlargement or replacement of a nonnavigational or encroachment, a
27 commercial navigational encroachment, a community navigational encroachment,
28 or for a navigational encroachment extending beyond the line of navigability
29 shall be submitted upon forms to be furnished by the board and accompanied by
30 plans of the proposed encroachment containing information required by section
31 58-143 58-1302(k), Idaho Code, and such other information as the board may by
32 rule or regulation require in conformance with the intent and purpose of this
33 chapter. Applications for nonnavigational or commercial navigational encroach-
34 ments must be submitted or approved by the riparian or littoral owner.
35 (b) Within ten (10) days of receipt of an application submitted under
36 subsection (a) above of this section, the board shall cause to be published in
37 a newspaper having general circulation in the county in which the encroachment
38 is proposed, once a week for two (2) consecutive weeks, a notice advising of
39 the application and describing the proposed encroachment and general location
40 thereof. Applications for installation of buried or submerged water intake
41 lines and utility lines shall be exempt from the newspaper publication proc-
42 ess. The board may also furnish copies of the application and accompanying
43 plans to other state agencies having an interest in the lake to determine the
44 opinion of such state agencies as to the likely effect of the proposed
45 encroachment upon adjacent property and lake value factors of navigation, fish
46 and wildlife habitat, aquatic life, recreation, aesthetic beauty or water
47 quality. Within thirty (30) days following receipt of such copy of the appli-
48 cation and plans from the board, such other state agency shall notify the
49 board of its opinion and recommendations, if any, for alternate plans deter-
50 mined by such agency to be economically feasible to accomplish the purpose of
51 the proposed encroachment without adversely affecting unreasonably adjacent
52 property or other lake value factors.
53 (c) Any resident of the state of Idaho, or a nonresident owner or lessee
3
1 of real property adjacent to the lake, or any state or federal agency may,
2 within thirty (30) days of the first date of publication, file with the board
3 an objection to the proposed encroachment and a request for a hearing on the
4 application. If a hearing is requested, the same shall be held no later than
5 ninety (90) days from the date of filing the application and notice of such
6 hearing shall be given in the manner prescribed for publishing notice of
7 application. The board may, in its discretion, within ten (10) days of filing
8 the application, order a hearing in the first instance in which case, publica-
9 tion of notice of the application shall be dispensed with. All such hearings
10 shall be public and held under rules and regulations promulgated by the board
11 under the provisions of chapter 52, title 67 of the Idaho Code. The board
12 shall render a decision within thirty (30) days following conclusion of the
13 hearing and a copy of the board's decision shall be mailed to the applicant
14 and to each person or agency appearing at the hearing and giving testimony in
15 support of or in opposition to the proposed encroachment. Any applicant or
16 other aggrieved party so appearing at a hearing shall have the right to have
17 the proceedings and decision of the board reviewed by the district court in
18 the county where the encroachment is proposed by filing notice of appeal
19 within thirty (30) days from the date of the board's decision. If the decision
20 of the board be approval of a permit, the party or parties appealing shall
21 file a bond on such appeal in an amount to be fixed by the court but not less
22 than five hundred dollars ($500) insuring payment to the applicant of damages
23 caused by delay and costs and expenses, including reasonable attorney's fees,
24 incurred on the appeal in the event the district court sustains the action of
25 the board.
26 (d) In the event no objection to the proposed encroachment is filed with
27 the board and no hearing is requested or ordered by the board, based upon its
28 investigation and considering the economics of navigational necessity, justi-
29 fication or benefit, public or private, of such proposed encroachment as well
30 as its detrimental effects, if any, upon adjacent real property and lake value
31 factors, the board shall prepare and forward to the applicant by certified
32 mail its decision and the applicant, if dissatisfied therewith, shall have
33 twenty (20) days from the date of mailing of such decision to notify the board
34 if he requests a reconsideration thereof and if such request is made, the
35 board shall set a time and place for reconsideration, not to exceed thirty
36 (30) days from receipt of such request, at which time and place the applicant
37 may appear in person or by authorized representative. If aggrieved by the
38 board's decision following reconsideration, the applicant may appeal to the
39 district court in the same manner as that provided for following a hearing.
40 (e) In recognition of continuing private property ownership of lands
41 lying between the natural or ordinary high water mark and the artificial high
42 water mark, the board shall consider unreasonable adverse effect upon adjacent
43 property and undue interference with navigation the most important factors to
44 be considered in granting or denying an application for either a
45 nonnavigational encroachment or a commercial navigational encroachment not
46 extending below the natural or ordinary high water mark. If no objections have
47 been filed to the application and no hearing has been requested or ordered by
48 the board, or, if upon reconsideration of a decision disallowing a permit, or
49 following a hearing, the board determines that the benefits, whether public or
50 private, to be derived from allowing such encroachment exceed its detrimental
51 effects, it shall grant the permit. As a condition of the permit, the board
52 may require a lease or easement for use of any part of the state owned bed of
53 the lake.
54 (f) Recordation of an issued permit All permits issued for
55 nonnavigational encroachments, commercial navigational encroachments, and com-
4
1 munity navigational encroachments shall be recorded in the records of the
2 county in which an the encroachment is located and shall be a condition of
3 issuance of a permit. and pProof of recordation shall be furnished to the
4 department by the permittee before a permit becomes valid. Such recordation
5 shall be at the expense of the permittee. Recordation of an issued permit
6 serves only to provide constructive notice of the permit to the public and
7 subsequent purchasers and mortgagees, but conveys no other right, title or
8 interest on the permittee other than validation of said permit.
9 (fg) A permit shall not be required for repair of an existing
10 nonnavigational or commercial navigational encroachment.
STATEMENT OF PURPOSE
RS 15340
Idaho Code Section 58-1306 currently requires county recordation
of nonnavigational and commercial navigational encroachments.
Recordation is a condition for issuance of an encroachment
permit. There is currently no requirement to record single-
family, two-family, and community docks. This legislation
amends Section 58-1305 to require recordation of single-family
and two-family docks in the county where the encroachment is
located, and amends Section 58-1306 to require recordation of
community docks in the county where the encroachment is located.
These amendments will identify existing permits in title
records.
FISCAL NOTE
No fiscal impact on state funds. Minimal filing fee impact on
applicants.
CONTACT
Name: Denise Mills
Agency: Lands, Dept of
Phone: 208-334-0200
STATEMENT OF PURPOSE/FISCAL NOTE H 527