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H0545.........................................by RESOURCES AND CONSERVATION
WATER RIGHTS ADJUDICATION - NORTHERN IDAHO - Adds to and amends existing
law relating to water to provide for Northern Idaho water rights
adjudication; to revise fee provisions for filing notice of claims with the
Director of the Department of Water Resources; to provide legislative
findings relating to accomplished transfers and the public interest
regarding Northern Idaho adjudications; to provide that certain changes of
place of use, points of diversion, nature or purpose of use, or period of
use of a water right may be claimed in the Northern Idaho adjudications;
and to provide for objections to recommendations for specified accomplished
changes.
02/02 House intro - 1st rdg - to printing
02/03 Rpt prt - to Res/Con
02/24 Rpt out - rec d/p - to 2nd rdg
02/27 2nd rdg - to 3rd rdg
03/02 3rd rdg - PASSED - 64-1-5
AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer,
Bedke, Bell, Bilbao, Black, Boe, Bolz, Brackett, Bradford, Cannon,
Chadderdon, Clark, Collins, Deal, Denney, Edmunson, Ellsworth,
Eskridge, Field(23), Garrett, Hart, Henbest, Henderson, Jaquet, Kemp,
Lake, LeFavour, Loertscher, Martinez, Mathews, Miller, Mitchell,
Moyle, Nielsen, Nonini, Pasley-Stuart, Pence, Raybould, Ring, Ringo,
Roberts, Rusche, Rydalch, Sali, Sayler, Schaefer, Shepherd(2),
Shepherd(8), Shirley, Skippen, Smith(30), Smith(24), Smylie,
Snodgrass, Stevenson, Trail, Wills, Wood, Mr. Speaker
NAYS -- Harwood
Absent and excused -- Block, Crow, Field(18), McGeachin, McKague
Floor Sponsors - Clark & Sayler
Title apvd - to Senate
03/03 Senate intro - 1st rdg - to Res/Env
03/16 Rpt out - rec d/p - to 2nd rdg
03/17 2nd rdg - to 3rd rdg
03/22 3rd rdg - PASSED - 30-5-0
AYES -- Andreason, Bunderson, Burkett(Clark), Burtenshaw, Cameron,
Coiner, Compton, Corder, Darrington, Davis, Fulcher, Gannon, Geddes,
Hill, Jorgenson, Kelly, Keough, Langhorst, Little, Lodge, Malepeai,
Marley, McGee, McKenzie, Richardson, Stegner, Stennett, Sweet, Werk,
Williams
NAYS -- Brandt, Broadsword, Goedde, Pearce, Schroeder
Absent and excused -- None
Floor Sponsor - Jorgenson
Title apvd - to House
03/23 To enrol
03/24 Rpt enrol - Sp signed
03/27 Pres signed
03/28 To Governor
03/30 Governor signed
Session Law Chapter 222
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. 545
BY RESOURCES AND CONSERVATION COMMITTEE
1 AN ACT
2 RELATING TO WATER; AMENDING CHAPTER 14, TITLE 42, IDAHO CODE, BY THE ADDITION
3 OF A NEW SECTION 42-1406B, IDAHO CODE, TO PROVIDE FOR SPECIFIED NORTHERN
4 IDAHO WATER RIGHTS ADJUDICATIONS; AMENDING SECTION 42-1414, IDAHO CODE, TO
5 REVISE FEE PROVISIONS FOR FILING NOTICE OF CLAIMS WITH THE DIRECTOR OF THE
6 DEPARTMENT OF WATER RESOURCES; AND AMENDING SECTION 42-1425, IDAHO CODE,
7 TO PROVIDE LEGISLATIVE FINDINGS RELATING TO ACCOMPLISHED TRANSFERS AND THE
8 PUBLIC INTEREST REGARDING NORTHERN IDAHO ADJUDICATIONS, TO PROVIDE THAT
9 CERTAIN CHANGES OF PLACE OF USE, POINTS OF DIVERSION, NATURE OR PURPOSE OF
10 USE, OR PERIOD OF USE OF A WATER RIGHT MAY BE CLAIMED IN THE NORTHERN
11 IDAHO ADJUDICATIONS AND TO PROVIDE FOR OBJECTIONS TO RECOMMENDATIONS FOR
12 SPECIFIED ACCOMPLISHED CHANGES.
13 Be It Enacted by the Legislature of the State of Idaho:
14 SECTION 1. That Chapter 14, Title 42, Idaho Code, be, and the same is
15 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
16 ignated as Section 42-1406B, Idaho Code, and to read as follows:
17 42-1406B. NORTHERN IDAHO WATER RIGHTS ADJUDICATIONS -- COMMENCEMENT. (1)
18 Effective management of the waters of northern Idaho requires that a compre-
19 hensive determination of the nature, extent and priority of the rights of all
20 users of surface and ground water be determined. Therefore, the director of
21 the department of water resources shall petition the district court to com-
22 mence adjudications within the terms of the McCarran amendment, 43 U.S.C. sec-
23 tion 666, of the water rights from surface water and ground water sources in
24 northern Idaho through initiation of three (3) proceedings. Separate petitions
25 shall be filed for water rights adjudications for each of the following river
26 basins, and related ground water sources whether or not hydraulically con-
27 nected to a surface water source, within Idaho: the Coeur d'Alene-Spokane
28 river basin, the Palouse river basin, and the Kootenai and Clark Fork-Pend
29 Oreille river basins. The filing of each petition shall be contingent on leg-
30 islative funding approval. Each petition shall describe the boundaries of the
31 water source or water sources to be adjudicated.
32 (2) The adjudication shall be brought in any district court in which any
33 part of the water source is located or before a court of special jurisdiction
34 for water right adjudications. Unless otherwise ordered by the supreme court,
35 special jurisdiction for the water rights general adjudications authorized by
36 this section shall reside in the Snake River Basin Adjudication district court
37 of the fifth judicial district of the state of Idaho, in and for the county of
38 Twin Falls. The clerk of the district court in which the petition is filed
39 shall send to the supreme court a true and certified copy of the petition. The
40 supreme court, by order, shall assign the judge to preside over the general
41 adjudication. Venue of the general adjudication shall be determined by order
42 or rule of the supreme court and venue of hearings under the general adjudica-
43 tion shall be determined by order of the presiding judge.
2
1 (3) Upon issuance of an order by the district court which authorizes the
2 director to commence an investigation and determination of the various water
3 rights to be adjudicated from the water source or water sources, and which
4 defines the boundaries of the source or sources within the state to be adjudi-
5 cated, the director of the department of water resources shall proceed in the
6 manner provided under the provisions of chapter 14, title 42, Idaho Code, to
7 the extent not inconsistent with the provisions of this section.
8 SECTION 2. That Section 42-1414, Idaho Code, be, and the same is hereby
9 amended to read as follows:
10 42-1414. FEES FOR FILING NOTICE OF CLAIMS WITH THE DIRECTOR. (1) In order
11 to provide an adequate and equitable cost-sharing formula for financing the
12 costs of adjudicating water rights the department of water resources shall
13 accept no notice of claim required under the provisions of section 42-1409,
14 Idaho Code, unless such notice of claim is submitted with a filing fee based
15 upon the fee schedule set forth below. Failure to pay the variable water use
16 fee in accordance with the timetable provided shall be cause for the depart-
17 ment to reject and return the notice of claim to the claimant. The fee sched-
18 ule set forth below applies to adjudication proceedings commenced or enlarged
19 on or after January 1, 1985.
20 (a) Flat fee per claim filed:
21 (i) Claims for domestic and/or stock watering rights based on per-
22 mit, license, decree or statutory claim ..................... $250.00
23 (ii) Claims for all other rights .......................... $5100.00
24 (b) Additional variable water use fee for claims filed based upon acre-
25 age, power generating capacity, c.f.s., or equivalent volume of water:
26 (i) Irrigation use (one fee irrespective of number of
27 claims): ........................................... $ 12.00 per acre
28 (ii) Power: .................... $ 3.507.00 per kilowatt of capacity
29 (manufacturer's nameplate rating)
30 (iii) Aquaculture: .............................. $ 120.00 per c.f.s.
31 (iv) Municipal, industrial, commercial, mining, heating, cooling: ..
32 ................................................. $1200.00 per c.f.s.
33 (v) Public instream flow, public lake level maintenance, wildlife: .
34 ........................................................ $1200.00 per
35 c.f.s.
36 (c) Payment of a variable water use fee of more than one thousand dollars
37 ($1,000) may be spread out over as many as five (5) annual equal payments
38 with ten percent (10%) interest accruing on the unpaid balance. All fees
39 collected by the department pursuant to this section shall be placed in
40 the water resources adjudication account established in section 42-1777,
41 Idaho Code.
42 (2) If a claimant increases in an amended notice of claim the amount of
43 water claimed, the amount of land irrigated, or the kilowatt capacity of the
44 generating facility, the claimant shall pay upon filing the amended notice of
45 claim an additional variable fee in accordance with the rates set forth in
46 subsection (1) of this section. Claimants shall be entitled to a return of
47 filing fees or late fees only where the fee was miscalculated at the time the
48 original or amended notice of claim was filed.
49 (3) If a claimant files a notice of claim after the date set by the
50 director in the notice mailed or served in accordance with subsections (2),
51 (3), or (4) of section 42-1408, Idaho Code, or with subsection (7) of section
52 42-1409, Idaho Code;, the claimant shall pay the fee set forth in subsection
53 (1) of this section, and in addition, the amount of fifty one hundred dollars
3
1 ($50.100) or fifteen percent (15%) of the original filing fee, whichever is
2 greater. The director may waive the late processing fee or a portion thereof
3 for good cause.
4 SECTION 3. That Section 42-1425, Idaho Code, be, and the same is hereby
5 amended to read as follows:
6 42-1425. ACCOMPLISHED TRANSFERS. (1) Legislative findings regarding
7 accomplished transfers and the public interest.
8 (a) The legislature finds and declares that prior to the commencement of
9 the Snake River basin adjudication, and the northern Idaho adjudications,
10 many persons entitled to the use of water or owning land to which water
11 has been made appurtenant either by decree of the court or under provi-
12 sions of the constitution and statutes of this state changed the place of
13 use, point of diversion, nature or purpose of use, or period of use of
14 their water rights without compliance with the transfer provisions of sec-
15 tions 42-108 and 42-222, Idaho Code.
16 (b) The legislature finds that many of these changes occurred with the
17 knowledge of other water users and that the water has been distributed to
18 the right as changed. The legislature further finds and declares that the
19 continuation of the historic water use patterns resulting from these
20 changes is in the local public interest provided no other existing water
21 right was injured at the time of the change. Denial of a claim based
22 solely upon a failure to comply with sections 42-108 and 42-222, Idaho
23 Code, where no injury or enlargement exists, would cause significant undue
24 financial impact to a claimant and the local economy. Approval of the
25 accomplished transfer through the procedure set forth in this section
26 avoids the harsh economic impacts that would result from a denial of the
27 claim.
28 (c) The legislature further finds and declares that examination of these
29 changes by the director through the procedures of section 42-222, Idaho
30 Code, would be impractical and unduly burdensome. The more limited exami-
31 nation of these changes provided for in this section, constitutes a rea-
32 sonable procedure for an expeditious review by the director while ensuring
33 that the changes do not injure other existing water rights or constitute
34 an enlargement of use of the original right.
35 (2) Any change of place of use, point of diversion, nature or purpose of
36 use or period of use of a water right by any person entitled to use of water
37 or owning any land to which water has been made appurtenant either by decree
38 of the court or under the provisions of the constitution and statutes of this
39 state, prior to November 19, 1987, the date of commencement of the Snake River
40 basin adjudication, and prior to January 1, 2006, for the northern Idaho adju-
41 dications authorized by section 42-1406B, Idaho Code, may be claimed in a the
42 applicable general adjudication even though the person has not complied with
43 sections 42-108 and 42-222, Idaho Code, provided no other water rights exist-
44 ing on the date of the change were injured and the change did not result in an
45 enlargement of the original right. Except for the consent requirements of sec-
46 tion 42-108, Idaho Code, all requirements of sections 42-108 and 42-222, Idaho
47 Code, are hereby waived in accordance with the following procedures:
48 (a) If an objection is filed to a claim recommendation for accomplished
49 change of place of use, point of diversion, nature or purpose of use or
50 period of use, the district court shall remand the water right to the
51 director for further hearing to determine whether the change injured a
52 water right existing on the date of the change or constituted an enlarge-
53 ment of the original right. After a hearing, the director shall submit a
4
1 supplemental report to the district court setting forth his findings and
2 conclusions. If the claimant or any person who filed an objection to the
3 accomplished transfer is aggrieved by the director's determination, they
4 may seek review before the district court. If the change is disallowed,
5 the claimant shall be entitled to resume use of the original water right,
6 provided such resumption of use will not cause injury or can be mitigated
7 to prevent injury to existing water rights. The unapproved change shall
8 not be deemed a forfeiture or abandonment of the original water right.
9 (b) This section is not applicable to any claim based upon an enlargement
10 of use.
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STATEMENT OF PURPOSE
RS 15705
This legislation authorizes the initiation of general water
rights adjudication for those portions of northern Idaho not
included within the Snake River Basin. The legislation authorizes
the adjudication of all rights to the use of water from surface
water and ground water sources whether or not hydraulically
connected within the Coeur d'Alene-Spokane River Basin, the
Palouse River Basin and the Kootenai and Clark Fork-Pend Oreille
River Basins.
The Ground Water Management Plan Advisory Committee for the
Rathdrum Prairie-Spokane Aquifer recommended the adjudication of
water rights as an element of the Management Plan for the
aquifer. The Legislature's approval of the Department of
Water Resources' budget for fiscal year 2006 included direction
to the Department to work with the Rathdrum Ground Water
Management Plan Advisory Committee and local elected officials to
determine the feasibility, cost and potential funding mechanisms
to begin the adjudication of water rights in the Coeur d'Alene
Basin. (2005 Idaho Session Laws, Chapter 172, Section 4) This
legislation providing for the adjudication of all water rights in
northern Idaho, subject to funding availability, is the result of
the directed coordination.
FISCAL NOTE
The projected cost for the adjudication of all water rights in the
remaining un-adjudicated basins in northern Idaho is $16.2 million
over a nine year period, plus funding for the negotiation of
federal claims. The legislation proposes to double the existing
adjudication claim fees as established by statute in 1985 for the
Snake River Basin Adjudication. The claim filing fees are
anticipated to provide for about one third of the cost of the
northern Idaho adjudication. This percentage is similar to the
funding provided by fees in the Snake River Basin Adjudication.
The cost for FY 2007 is projected to be $1.335 million, to be
provided from the general fund. It is anticipated that funds from
claim fees will be collected beginning in FY 2008.
Contact
Name: Rep. Jim Clark
Phone: (208) 332-1000
Rep. George Sayler
Co-Sponsors: Reps. Eric Anderson, George Eskridge, Mary Lou
Shepherd, Phil Hart, Marge Chadderdon, Frank Henderson and Bob
Nonini. Senators Shawn Keough, Mike Jorgenson, and Dick Compton
STATEMENT OF PURPOSE/FISCAL NOTE H 545