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H0528.........................................by RESOURCES AND CONSERVATION
ENCROACHMENTS - Amends existing law to clarify criteria relating to those
types of noncommercial navigational encroachments subject to certain
application procedural requirements; to provide for community navigational
encroachments; to provide for application process and procedure relating to
community navigational encroachments; to provide that applications for
community navigational encroachments must be submitted or approved by the
riparian or littoral owner; to provide that certain factors shall be
considered in granting or denying an application for a community
navigational encroachment; and to provide that a permit shall not be
required for repair of an existing community navigational encroachment.
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 - 61-0-9
AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bell,
Bilbao, Black, Block, Boe, Bolz, Brackett, Bradford, Cannon,
Chadderdon, Clark, Collins, Crow, Deal, Edmunson, Ellsworth,
Field(18), Field(23), Garrett, Hart, Harwood, Henderson, Jaquet,
Kemp, Lake, LeFavour, Loertscher, Martinez, Mathews, McKague, Miller,
Mitchell, Nielsen, Pasley-Stuart, Pence, Raybould, Ring, Ringo,
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 -- Bayer, Bedke, Denney, Eskridge, Henbest,
McGeachin, Moyle, Nonini, Roberts
Floor Sponsor - Mitchell
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 - Brandt
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 131
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. 528
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 PROCESSING OF APPLICATIONS RELAT-
4 ING TO CERTAIN NAVIGATIONAL ENCROACHMENTS NOT INTENDED PRIMARILY FOR COM-
5 MUNITY USE AND TO MAKE TECHNICAL CORRECTIONS; AND AMENDING SECTION
6 58-1306, IDAHO CODE, TO PROVIDE FOR COMMUNITY NAVIGATIONAL ENCROACHMENTS,
7 TO CLARIFY TERMINOLOGY, TO PROVIDE FOR APPLICATION PROCESS AND PROCEDURES
8 RELATING TO COMMUNITY NAVIGATIONAL ENCROACHMENTS, TO PROVIDE THAT APPLICA-
9 TIONS FOR COMMUNITY NAVIGATIONAL ENCROACHMENTS MUST BE SUBMITTED OR
10 APPROVED BY THE RIPARIAN OR LITTORAL OWNER, TO PROVIDE THAT CERTAIN FAC-
11 TORS SHALL BE CONSIDERED IN GRANTING OR DENYING AN APPLICATION FOR A COM-
12 MUNITY NAVIGATIONAL ENCROACHMENT, TO CLARIFY TERMINOLOGY, TO PROVIDE THAT
13 A PERMIT SHALL NOT BE REQUIRED FOR REPAIR OF AN EXISTING COMMUNITY
14 NAVIGATIONAL ENCROACHMENT AND TO MAKE TECHNICAL CORRECTIONS.
15 Be It Enacted by the Legislature of the State of Idaho:
16 SECTION 1. That Section 58-1305, Idaho Code, be, and the same is hereby
17 amended to read as follows:
18 58-1305. NONCOMMERCIAL NAVIGATIONAL ENCROACHMENTS -- PROCEDURES --
19 REPAIRS -- FORMS. (a) Applications for construction, enlargement or replace-
20 ment of navigational encroachments not extending beyond the line of navigabil-
21 ity nor intended primarily for commercial or community use shall be processed
22 by the board with a minimum of procedural requirements and shall not be denied
23 nor appearance required except in the most unusual of circumstances or if the
24 proposed encroachment infringes upon or it appears it may infringe upon the
25 riparian or littoral rights of an adjacent property owner.
26 (b) If the plans of the proposed encroachment indicate such infringement
27 will or may occur, the board shall require that the applicant secure the con-
28 sent of such adjacent owner or that he be given notice of the application by
29 personal service or by certified or registered mail, return receipt requested,
30 directed to him at his usual place of address, which, if not otherwise known,
31 shall be the address shown on the records of the county treasurer or assessor,
32 and such adjacent owner shall have ten (10) days from the date of personal
33 service or receipt of certified or registered mail to file objection with the
34 board. The application itself shall be deemed sufficient notice if the adja-
35 cent owner is the state of Idaho.
36 (c) In the event objection to the application is filed by an adjacent
37 owner or if the board deems it advisable because of the existence of unusual
38 circumstances, the board shall fix a time, no later than sixty (60) days from
39 the date of filing application, and a place, for affording the applicant and
40 the adjacent owner filing objection to appear and present evidence in support
41 of or in opposition to the application and within forty-five (45) days (45)
42 thereafter shall render a decision and give notice thereof to the parties con-
43 cerned who may thereafter resort to appellate procedures prescribed in section
2
1 58-147 58-1306, Idaho Code.
2 (d) A permit shall not be required for repair of an existing navigational
3 encroachment.
4 (e) Applications submitted under this section shall be upon forms to be
5 furnished by the board and shall be accompanied by plans of the proposed
6 navigational encroachment containing information required by section 58-143
7 58-1302(k), Idaho Code, and such other information as the board may by rule or
8 regulation require in conformance with the intent and purpose of this chapter.
9 (f) If notice to an adjacent owner is not required or if the adjacent
10 owner has consented to the proposed encroachment or has failed to file objec-
11 tion to the proposed encroachment within the time allowed following service of
12 notice, the board shall act upon the application as expeditiously as possible
13 but no later than sixty (60) days from receipt of the application and failure
14 to act within such time shall constitute approval of the application.
15 SECTION 2. That Section 58-1306, Idaho Code, be, and the same is hereby
16 amended to read as follows:
17 58-1306. NONNAVIGATIONAL OR COMMERCIAL NAVIGATIONAL ENCROACHMENTS -- COM-
18 MUNITY NAVIGATIONAL ENCROACHMENTS -- NAVIGATIONAL ENCROACHMENTS BEYOND LINE OF
19 NAVIGABILITY -- APPLICATION -- PROCEDURES -- PUBLICATION OF NOTICE -- HEARING
20 -- APPEALS -- RECONSIDERATION -- CRITERIA PRIORITY. (a) Applications for con-
21 struction, enlargement or replacement of a nonnavigational or encroachment, a
22 commercial navigational encroachment, a community navigational encroachment,
23 or for a navigational encroachment extending beyond the line of navigability
24 shall be submitted upon forms to be furnished by the board and accompanied by
25 plans of the proposed encroachment containing information required by section
26 58-143 58-1302(k), Idaho Code, and such other information as the board may by
27 rule or regulation require in conformance with the intent and purpose of this
28 chapter. Applications for nonnavigational, community navigational, or commer-
29 cial navigational encroachments must be submitted or approved by the riparian
30 or littoral owner.
31 (b) Within ten (10) days of receipt of an application submitted under
32 subsection (a) above of this section, the board shall cause to be published in
33 a newspaper having general circulation in the county in which the encroachment
34 is proposed, once a week for two (2) consecutive weeks, a notice advising of
35 the application and describing the proposed encroachment and general location
36 thereof. Applications for installation of buried or submerged water intake
37 lines and utility lines shall be exempt from the newspaper publication proc-
38 ess. The board may also furnish copies of the application and accompanying
39 plans to other state agencies having an interest in the lake to determine the
40 opinion of such state agencies as to the likely effect of the proposed
41 encroachment upon adjacent property and lake value factors of navigation, fish
42 and wildlife habitat, aquatic life, recreation, aesthetic beauty or water
43 quality. Within thirty (30) days following receipt of such copy of the appli-
44 cation and plans from the board, such other state agency shall notify the
45 board of its opinion and recommendations, if any, for alternate plans deter-
46 mined by such agency to be economically feasible to accomplish the purpose of
47 the proposed encroachment without adversely affecting unreasonably adjacent
48 property or other lake value factors.
49 (c) Any resident of the state of Idaho, or a nonresident owner or lessee
50 of real property adjacent to the lake, or any state or federal agency may,
51 within thirty (30) days of the first date of publication, file with the board
52 an objection to the proposed encroachment and a request for a hearing on the
53 application. If a hearing is requested, the same shall be held no later than
3
1 ninety (90) days from the date of filing the application and notice of such
2 hearing shall be given in the manner prescribed for publishing notice of
3 application. The board may, in its discretion, within ten (10) days of filing
4 the application, order a hearing in the first instance in which case, publica-
5 tion of notice of the application shall be dispensed with. All such hearings
6 shall be public and held under rules and regulations promulgated by the board
7 under the provisions of chapter 52, title 67 of the Idaho Code. The board
8 shall render a decision within thirty (30) days following conclusion of the
9 hearing and a copy of the board's decision shall be mailed to the applicant
10 and to each person or agency appearing at the hearing and giving testimony in
11 support of or in opposition to the proposed encroachment. Any applicant or
12 other aggrieved party so appearing at a hearing shall have the right to have
13 the proceedings and decision of the board reviewed by the district court in
14 the county where the encroachment is proposed by filing notice of appeal
15 within thirty (30) days from the date of the board's decision. If the decision
16 of the board be approval of a permit, the party or parties appealing shall
17 file a bond on such appeal in an amount to be fixed by the court but not less
18 than five hundred dollars ($500) insuring payment to the applicant of damages
19 caused by delay and costs and expenses, including reasonable attorney's fees,
20 incurred on the appeal in the event the district court sustains the action of
21 the board.
22 (d) In the event no objection to the proposed encroachment is filed with
23 the board and no hearing is requested or ordered by the board, based upon its
24 investigation and considering the economics of navigational necessity, justi-
25 fication or benefit, public or private, of such proposed encroachment as well
26 as its detrimental effects, if any, upon adjacent real property and lake value
27 factors, the board shall prepare and forward to the applicant by certified
28 mail its decision and the applicant, if dissatisfied therewith, shall have
29 twenty (20) days from the date of mailing of such decision to notify the board
30 if he requests a reconsideration thereof and if such request is made, the
31 board shall set a time and place for reconsideration, not to exceed thirty
32 (30) days from receipt of such request, at which time and place the applicant
33 may appear in person or by authorized representative. If aggrieved by the
34 board's decision following reconsideration, the applicant may appeal to the
35 district court in the same manner as that provided for following a hearing.
36 (e) In recognition of continuing private property ownership of lands
37 lying between the natural or ordinary high water mark and the artificial high
38 water mark, the board shall consider unreasonable adverse effect upon adjacent
39 property and undue interference with navigation the most important factors to
40 be considered in granting or denying an application for either a
41 nonnavigational encroachment, or a commercial navigational encroachment, or a
42 community navigational encroachment not extending below the natural or ordi-
43 nary high water mark. If no objections have been filed to the application and
44 no hearing has been requested or ordered by the board, or, if upon reconsider-
45 ation of a decision disallowing a permit, or following a hearing, the board
46 determines that the benefits, whether public or private, to be derived from
47 allowing such encroachment exceed its detrimental effects, it shall grant the
48 permit. As a condition of the permit, the board may require a lease or ease-
49 ment for use of any part of the state owned bed of the lake. Recordation of an
50 issued permit in the records of the county in which an encroachment is located
51 shall be a condition of issuance of a permit and proof of recordation shall be
52 furnished to the department by the permittee before a permit becomes valid.
53 Such recordation shall be at the expense of the permittee. Recordation of an
54 issued permit serves only to provide constructive notice of the permit to the
55 public and subsequent purchasers and mortgagees, but conveys no other right,
4
1 title or interest on the permittee other than validation of said permit.
2 (f) A permit shall not be required for repair of an existing
3 nonnavigational or encroachment, commercial navigational encroachment, or com-
4 munity navigational encroachment.
STATEMENT OF PURPOSE
RS 15341
When the Lake Protection Act was enacted there was no provision
for community docks. As community docks became more popular,
the Department of Lands began processing them under Idaho Code
Section 58-1306 because the impact was closer to that of a
commercial encroachment than a single-family dock. This
legislation would amend Idaho Code, Sections 58-1305 and 58-1306
to clarify application and processing requirements for community
docks.
FISCAL NOTE
No fiscal impact.
CONTACT
Name: Denise Mills
Agency: Lands, Dept of
Phone: 208-334-0200
STATEMENT OF PURPOSE/FISCAL NOTE H 528