TITLE 42

IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION

CHAPTER 12

MAINTENANCE AND REPAIR OF DITCHES

42-1207.   relocation and piping of irrigation conveyance facilities and drainage facilities. (1) Where any ditch, canal, lateral, drain, or buried irrigation conduit has heretofore been, or may hereafter be, constructed across or beneath the lands of another:

(a)  The servient estate owner may, at his own expense, relocate or pipe the ditch, canal, lateral, drain, or buried irrigation conduit to any other part of his land, but such change must be made in such a manner as not to impede the flow of the water therein, or to otherwise injure any person or entity using or interested in such ditch, canal, lateral, drain, or buried irrigation conduit.; or

(b)  The servient estate owner may, at his own expense, place the ditch, canal, lateral, or drain in a pipe, culvert, or other conduit on his land, provided that the pipe, culvert, or other conduit installation and backfill reasonably meet standard specifications for such materials and construction, as set forth in the Idaho standards for public works construction or other standards recognized by the city or county in which the burying is to be done.

(2)  The right and responsibility for operation and maintenance of a ditch, canal, lateral, drain, or buried irrigation conduit that is relocated or placed in conduit by the servient estate owner shall remain with the owner of the ditch, canal, lateral, or drain, but the servient estate owner, his heirs, executors, administrators, successors, and assigns shall be responsible for any increased operation and maintenance costs, including rehabilitation and replacement, unless otherwise agreed in writing with the owner of the ditch, canal, lateral, drain, or buried irrigation conduit.

(3)(a)  The written permission of the owner or operator of a ditch, canal, lateral, drain, or buried irrigation conduit must first be obtained before it is relocated or placed in a pipe, culvert, or other conduit by the owner of the servient estate, in order to ensure that:

(i)   Such change will not impede the flow of water therein, unreasonably or materially interfere with access, use, operation, maintenance, cleaning, or repair, or otherwise injure any person or entity using such ditch, canal, lateral, drain, or buried irrigation conduit;

(ii)  Adequate provision is made for the payment of any increased operation and maintenance costs, including rehabilitation and replacement, unless otherwise agreed in writing with the owner or operator of the ditch, canal, lateral, drain, or buried irrigation conduit; and

(iii) Adequate provision is made documenting, protecting, and perpetuating the ditch, canal, lateral, drain, or buried irrigation conduit right-of-way pursuant to section 42-1102, Idaho Code.

(b)  Such written permission shall not be unreasonably withheld.

(4)  A ditch, canal, lateral, drain, or buried irrigation conduit that is relocated or placed in a pipe, culvert, or other conduit without such express written permission shall be removed, modified, repaired, or restored to its prior location or condition, as directed by the owner thereof, at the expense of the person or entity that caused or permitted such relocation or placement in pipe, culvert, or other conduit, in the event it unreasonably or materially interferes with the use and enjoyment of the easement or right-of-way.

(a)   The person or entity that caused or permitted the relocation or the placement in pipe, culvert, or other conduit shall perform such removal, modification, repair, or restoration within a reasonable time after request from the owner or operator of the easement or right-of-way, or immediately upon such request in the event of reduced delivery or drainage of water, property damage, safety risk, or other emergency. What constitutes a reasonable time to respond to the request depends on circumstances affecting the use, operation, maintenance, and repair of the ditch, canal, lateral drain, or buried irrigation conduit and associated easement or right-of-way.

(b)  If the person or entity that caused or permitted the relocation or the placement in pipe, culvert, or other conduit fails to timely perform the requested actions, or in the event of reduced delivery or drainage of water, property damage, safety risk, or other emergency, the owner or operator of the easement or right-of-way may proceed to perform such actions at the expense of the person or entity that caused or permitted the relocation or piping.

(5)  The owner or operator of a ditch, canal, lateral, drain, or buried irrigation conduit that has been constructed across or beneath the lands of another may relocate or pipe the facility.

(a)  Prior to relocating a ditch, canal, lateral, drain, or buried irrigation conduit, the written permission of the owner of the servient estate shall be obtained.

(b)  The owner or operator of the ditch, canal, lateral, drain, or buried irrigation conduit shall have the right to place it in a buried conduit within the easement or right-of-way, without the permission of the servient estate owner, in accordance with standard specifications for pipe, materials, installation, and backfill, as set forth in the Idaho standards for public works construction or other standards recognized by the city or county in which the burying is to be done, and as long as the construction is accomplished in a manner that the surface of the servient estate outside the easement or right-of-way and the owner’s use thereof is not disrupted and is restored to its prior condition as expeditiously as possible, but no longer than thirty (30) days after the completion of construction.

(c)  The owner of the servient estate may request that the conduit be installed along a different route than the existing route of the ditch, canal, lateral, or drain, provided that:

(i)   The conditions of subsection (3) of this section are satisfied; and

(ii)  The servient estate owner, his heirs, executors, administrators, successors, and assigns shall be responsible for any increased construction or future maintenance costs necessitated by said relocation. Maintenance of the buried conduit shall be the responsibility of the conduit owner or operator.

(6)  This section shall apply to ditches, canals, laterals, drains, and buried irrigation conduits existing on or established after July 1, 2024.

History:

[(42-1207) 1907, p. 237, sec. 4; reen. R.C. & C.L., sec. 3311a; C.S., sec. 5660; I.C.A., sec. 41-1107; am. 1994, ch. 151, sec. 1, p. 345; am. 2002, ch. 115, sec. 4, p. 329; am. 2005, ch. 331, sec. 1, p. 1038; am. 2011, ch. 177, sec. 1, p. 504; am. 2019, ch. 158, sec. 4, p. 513; am. 2024, ch. 93, sec. 14, p. 436.]