Print Friendly HOUSE BILL NO. 605
– Water rights, forest practices
HOUSE BILL NO. 605
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H0605......................................................by STATE AFFAIRS
WATER RIGHTS - Amends existing law relating to water to provide that water
may be used for specified forest practices and forest dust abatement with
or without a water right; to prohibit the diversion of certain water; to
provide for notices; and to provide for petitions for cessation or
modification of certain uses to prevent injury to water rights.
03/07 House intro - 1st rdg - to printing
03/10 Rpt prt - to Res/Con
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-ninth Legislature Second Regular Session - 2008
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 605
BY STATE AFFAIRS COMMITTEE
1 AN ACT
2 RELATING TO WATER; AMENDING SECTION 42-201, IDAHO CODE, TO PROVIDE FOR CERTAIN
3 DIVERSION OF WATER, TO PROVIDE THAT WATER MAY BE USED FOR SPECIFIED FOREST
4 PRACTICES AND FOREST DUST ABATEMENT WITH OR WITHOUT A WATER RIGHT, TO PRO-
5 HIBIT THE DIVERSION OF CERTAIN WATER, TO PROVIDE FOR NOTICES OF INTENT TO
6 DIVERT AND TO PROVIDE FOR PETITIONS FOR CESSATION OR MODIFICATION OF CER-
7 TAIN USES TO PREVENT INJURY TO WATER RIGHTS.
8 Be It Enacted by the Legislature of the State of Idaho:
9 SECTION 1. That Section 42-201, Idaho Code, be, and the same is hereby
10 amended to read as follows:
11 42-201. WATER RIGHTS ACQUIRED UNDER CHAPTER -- ILLEGAL DIVERSION AND
12 APPLICATION OF WATER -- USES FOR WHICH WATER RIGHT NOT REQUIRED -- EXCLUSIVE
13 AUTHORITY OF DEPARTMENT. (1) All rights to divert and use the waters of this
14 state for beneficial purposes shall hereafter be acquired and confirmed under
15 the provisions of this chapter and not otherwise. And after the passage of
16 this title all the waters of this state shall be controlled and administered
17 in the manner herein provided. Such appropriation shall be perfected only by
18 means of the application, permit and license procedure as provided in this
19 title; provided, however, that in the event an appropriation has been com-
20 menced by diversion and application to beneficial use prior to the effective
21 date of this act it may be perfected under such method of appropriation.
22 (2) No person shall use the public waters of the state of Idaho except in
23 accordance with the laws of the state of Idaho. No person shall divert any
24 water from a natural watercourse or apply water to land without having
25 obtained a valid water right to do so, or apply it to purposes for which no
26 valid water right exists.
27 (3) Notwithstanding the provisions of subsection (2) of this section,
28 water may be diverted from a natural watercourse and used at any time, with or
29 without a water right ,:
30 (a) T to extinguish an existing fire on private or public lands, struc-
31 tures, or equipment, or to prevent an existing fire from spreading to pri-
32 vate or public lands, structures, or equipment endangered by an existing
34 (b) For forest practices as defined in section 38-1303(1), Idaho Code,
35 and forest dust abatement. Such forest practices and forest dust abatement
36 use is limited to two-tenths (0.2) acre-feet per day from a single water-
38 (4) No person shall divert water from a canal or other irrigation facil-
39 ity while the water is lawfully diverted, captured, conveyed, used or other-
40 wise physically controlled by the appropriator.
41 (5) If water is to be diverted from a natural watercourse within a water
42 district, or from a natural watercourse from which an irrigation delivery
43 entity diverts water, a person diverting water pursuant to subsection (3)(b)
1 of this section shall give notice to the watermaster of the intent to divert
2 water for the purposes set forth in said subsection. In the event that the
3 water to be diverted pursuant to subsection (3)(b) of this section is not
4 within a water district, but an irrigation delivery entity diverts water from
5 the same natural watercourse, the required notices shall be given to said
6 irrigation delivery entity. For uses authorized in subsection (3)(a) of this
7 section, notice shall not be required but may be provided when it is reason-
8 able to do so.
9 (6) A water right holder, who determines that a use set forth in subsec-
10 tion (3) of this section is causing a water right to which the holder is enti-
11 tled to be deprived of water to which it may be otherwise entitled, may peti-
12 tion the director of the department of water resources to order cessation of
13 or modification of the use to prevent injury to a water right. Upon such a
14 petition, the director shall cause an investigation to be made and may hold
15 hearings or gather information in some other manner. In the event that the
16 director finds that an injury is occurring to a water right, he may require
17 the use to cease or be modified to ensure that no injury to other water rights
18 occurs. A water right holder feeling aggrieved by a decision or action of the
19 director shall be entitled to contest the action of the director pursuant to
20 section 42-1701A(3), Idaho Code.
21 (7) This title delegates to the department of water resources exclusive
22 authority over the appropriation of the public surface and ground waters of
23 the state. No other agency, department, county, city, municipal corporation or
24 other instrumentality or political subdivision of the state shall enact any
25 rule or ordinance or take any other action to prohibit, restrict or regulate
26 the appropriation of the public surface or ground waters of the state, and any
27 such action shall be null and void.
STATEMENT OF PURPOSE
The purpose of this legislation is to amend Section 42-201, Idaho
Code, to recognize that the diversion of de minimis amounts of
water from a natural water course for use in forest dust abatement
and forest practices defined by the Idaho Forest Practice Act may
occur without a water right. Water traditionally has been diverted
in de minimis amounts to satisfy these purposes without water
rights being obtained because of the continuing and frequent change
in location of both the points of diversion and the places of use.
The state's formal water right permitting procedures are
impractical as a means of regulating these de minimis and
constantly changing water uses. The legislation also creates an
appeals process for water right holders who believe they are
deprived of water by an exempted use.
Enactment of this legislation will not have a negative impact upon
the state's general fund or other state or local funds.
Name: Speaker of the House, Lawerence Denney
Representative Bert Stevenson
Senator Brad Little
Senator Gary Schroeder
STATEMENT OF PURPOSE/FISCAL NOTE H 605