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S1348..........................................by RESOURCES AND ENVIRONMENT
WATER RIGHTS - Amends existing law relating to water rights to provide
that, under certain conditions, water rights relating to mining, mineral
processing or milling shall not be lost or forfeited for nonuse.
01/28 Senate intro - 1st rdg - to printing
01/29 Rpt prt - to Res/Env
02/18 Rpt out - rec d/p - to 2nd rdg
02/19 2nd rdg - to 3rd rdg
02/22 3rd rdg - PASSED - 26-7-2
AYES -- Andreason, Bair, Bastian, Broadsword, Cameron, Coiner,
Corder, Darrington, Davis, Fulcher, Geddes, Goedde, Hammond,
Heinrich, Hill, Jorgenson, Keough, Lodge, McGee, McKague, McKenzie,
Pearce, Richardson, Schroeder, Siddoway, Stegner
NAYS -- Bilyeu, Burkett, Kelly, Langhorst, Malepeai(Sagness),
Stennett, Werk
Absent and excused -- Gannon, Little
Floor Sponsor - Coiner
Title apvd - to House
02/25 House intro - 1st rdg - to Res/Con
03/12 Rpt out - rec d/p - to 2nd rdg
03/13 2nd rdg - to 3rd rdg
03/14 3rd rdg - PASSED - 56-11-3
AYES -- Anderson, Andrus, Barrett, Bayer, Bedke, Bell, Bilbao, Block,
Boe, Bolz, Bowers, Brackett, Bradford, Chadderdon, Collins, Crane,
Eskridge, Hagedorn, Hart, Harwood, Henderson, Jaquet, Kren, Labrador,
Lake, Loertscher, Luker, Marriott, Mathews, McGeachin, Mortimer,
Moyle, Nielsen, Nonini, Patrick, Pence, Raybould, Roberts, Ruchti,
Rusche, Sayler, Schaefer, Shepherd(02), Shepherd(08), Shirley,
Shively, Smith(30), Snodgrass, Stevenson, Thayn, Thomas, Trail,
Vander Woude, Wood(27), Wood(35), Mr. Speaker
NAYS -- Bock, Chavez, Chew, Durst, Henbest, Killen, King, LeFavour,
Pasley-Stuart, Ringo, Smith(24)
Absent and excused -- Black, Clark, Wills
Floor Sponsor - Stevenson
Title apvd - to Senate
03/17 To enrol
03/18 Rpt enrol - Pres signed
03/19 Sp signed
03/20 To Governor
03/25 Governor signed
Session Law Chapter 239
Effective: 03/25/08 for all existing
water rights but not reinstatement of
forfeited water rights
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature Second Regular Session - 2008IN THE SENATE SENATE BILL NO. 1348 BY RESOURCES AND ENVIRONMENT COMMITTEE 1 AN ACT 2 RELATING TO WATER RIGHTS; AMENDING SECTION 42-223, IDAHO CODE, TO PROVIDE THAT 3 UNDER CERTAIN CONDITIONS WATER RIGHTS RELATED TO MINING, MINERAL PROCESS- 4 ING OR MILLING SHALL NOT BE LOST OR FORFEITED FOR NONUSE; DECLARING AN 5 EMERGENCY AND PROVIDING FOR APPLICABILITY. 6 Be It Enacted by the Legislature of the State of Idaho: 7 SECTION 1. That Section 42-223, Idaho Code, be, and the same is hereby 8 amended to read as follows: 9 42-223. EXCEPTIONS OR DEFENSES TO FORFEITURE. A right to the use of water 10 shall not be lost by forfeiture pursuant to the provisions of section 42-222, 11 Idaho Code, for a failure to apply the water to beneficial use under the con- 12 ditions specified in any subsection of this section. The legislature does not 13 intend through enactment of this section to diminish or impair any statutory 14 or common law exception or defense to forfeiture existing on the date of 15 enactment or amendment of this section, or to preclude judicial or administra- 16 tive recognition of other exceptions or defenses to forfeiture recognized in 17 Idaho case law or other provisions of the Idaho Code. No provision of this 18 section shall be construed to imply that the legislature does not recognize 19 the existence or validity of any common law exception or defense to forfeiture 20 existing on the date of enactment or amendment of this section. 21 (1) A water right appurtenant to land contracted in a federal cropland 22 set-aside program shall not be lost or forfeited for nonuse during the con- 23 tracted period. The running of any five (5) year period of nonuse for forfei- 24 ture of a water right shall be tolled during the time that the land remains in 25 the cropland set-aside program. 26 (2) A water right held by a municipal provider to meet reasonably antici- 27 pated future needs shall be deemed to constitute beneficial use, and such 28 rights shall not be lost or forfeited for nonuse unless the planning horizon 29 specified in the license has expired and the quantity of water authorized for 30 use under the license is no longer needed to meet reasonably anticipated 31 future needs. 32 (3) A water right shall not be lost or forfeited by a failure to divert 33 and apply the water to beneficial use if the water is not needed to maintain 34 full beneficial use under the right because of land application of waste for 35 disposal purposes including, but not limited to, discharge from dairy lagoons 36 used in combination with or substituted for water diverted under the water 37 right. 38 (4) A water right shall not be lost or forfeited by a failure to divert 39 and apply the water to beneficial use if the reason for the nonuse of the 40 water is to comply with the provisions of a ground water management plan 41 approved by the director of the department of water resources pursuant to sec- 42 tion 42-233a or 42-233b, Idaho Code. 43 (5) A water right shall not be lost or forfeited by a failure of the 2 1 owner of the right to divert and apply the water to beneficial use while the 2 water right is placed in the water supply bank or is retained in or rented 3 from the water supply bank pursuant to sections 42-1761 through 42-1765A, 4 Idaho Code, or while the water right is leased pursuant to sections 43-335 5 through 43-342, Idaho Code, or sections 42-2501 through 42-2509, Idaho Code, 6 or while use of the water is made under any other provision of law authorizing 7 the rental or lease of water rights. 8 (6) No portion of any water right shall be lost or forfeited for nonuse 9 if the nonuse results from circumstances over which the water right owner has 10 no control. Whether the water right owner has control over nonuse of water 11 shall be determined on a case-by-case basis. 12 (7) No portion of a water right held by an irrigation district, a Carey 13 Act operating company, or any other company, corporation, association, or 14 entity which holds water rights for distribution to its landowners, share- 15 holders or members shall be lost or forfeited due to nonuse by such landown- 16 ers, shareholders or members, unless the nonuse is subject to the control of 17 such entity. 18 (8) No portion of a water right held by an irrigation district shall be 19 lost, forfeited or subject to forfeiture as a result of the exclusion of land 20 from the district pursuant to chapter 11, title 43, Idaho Code, so long as any 21 five (5) year period of nonuse following the exclusion does not result from 22 circumstances over which the district has control. 23 (9) No portion of any water right shall be lost or forfeited for nonuse 24 if the nonuse results from a water conservation practice, which maintains the 25 full beneficial use authorized by the water right, as defined in section 26 42-250, Idaho Code. 27 (10) No portion of any water right shall be lost or forfeited for nonuse 28 if the nonuse results from the water right being used for mitigation purposes 29 approved by the director of the department of water resources including as a 30 condition of approval for a new water right appropriation approved pursuant to 31 section 42-203A, Idaho Code, a water right transfer approved pursuant to sec- 32 tion 42-222, Idaho Code, a water exchange approved pursuant to section 42-240, 33 Idaho Code, or a mitigation plan approved in accordance with rules promulgated 34 pursuant to section 42-603, Idaho Code. 35 (11) No portion of any water right with a beneficial use related to min- 36 ing, mineral processing or milling shall be lost or forfeited for nonuse, so 37 long as the nonuse results from a closure, suspension or reduced production of 38 the mine, processing facility or mill due in whole or in part to mineral 39 prices, if the mining property has a valuable mineral, as defined in section 40 47-1205, Idaho Code, and the water right owner has maintained the property and 41 mineral rights for potential future mineral production. 42 SECTION 2. An emergency existing therefor, which emergency is hereby 43 declared to exist, this act shall be in full force and effect on and after its 44 passage and approval, and shall apply to all existing water rights, but shall 45 not be applied to revive any water right that has been finally determined to 46 be forfeited prior to the date of passage and approval of this act.
STATEMENT OF PURPOSE
RS 17656C2
At times mining operations have not continued to put their water
rights to beneficial use because mining activities have been
reduced or discontinued due to low mineral prices. This bill
exempts such water rights from forfeiture as long as the water
right owner has maintained the property and the mineral rights
for potential future mineral development.
FISCAL NOTE
No fiscal impact.
Contact
Name: Jack Lyman
Phone: 208-342-0031
Idaho Mining Association
ima@idahomining.org
STATEMENT OF PURPOSE/FISCAL NOTE S 1348