TITLE 42

IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION

CHAPTER 2

APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY

42-251.  APPROPRIATION OF UNAPPROPRIATED FLOWS FOR LEMHI BASIN STREAM FLOW MAINTENANCE — LEGISLATIVE FINDINGS OF FACT CONCERNING HISTORIC USE OF HIGH FLOWS IN THE LEMHI RIVER BASIN AND NEED FOR PROTECTION AND EFFECTIVE MANAGEMENT OF SUCH USE. (1) Legislative Findings.

(a)  In the absence of storage reservoirs in the Lemhi Basin, the diversion of "high water or flood water" onto irrigated land in the spring developed as a way of holding water underground within the basin, which would later contribute to the flows in the Lemhi River and its tributaries.

(b)  The 1982 Lemhi Basin Decree recognized the practice of diverting "high water or flood water" onto irrigated lands. It defined "high water or flood water" as "natural flow of water over and above the amount required to fulfill (1) existing quantified rights as shown in the decree of water rights and (2) any future rights that may be established pursuant to statutory procedures of the state of Idaho." Proposed Findings of Water Rights, In the Matter of the General Determination of the Rights to the Use of the Surface Waters and Tributaries from Whatever Source of the Lemhi River Drainage Basin, Civil No. 4948, Feb. 16, 1982, at 3, paragraph n. The Lemhi Decree included a conclusion of law stating the practice "of diverting so called ‘high waters or flood waters’ in addition to the quantified rights as described in the recommended decree of water rights (and future rights that may be established pursuant to statutory procedures) [is] allowed provided: (a) the waters so diverted are applied to beneficial use. (b) the existing quantified rights (including future appropriations of water) are first satisfied."

(c)  Based on the conclusions of law in the Lemhi Basin Decree, many Lemhi Basin irrigators filed claims in the Snake River Basin Adjudication (SRBA) seeking water rights for their historic "high water or flood water" practice.

(d)  On January 3, 2012, the SRBA Court affirmed the Special Master’s Report and Recommendation finding that "Idaho case law precludes the high flow claimants from seeking to establish high flow water rights in the SRBA as a matter of law." Memorandum Decision and Order on Challenge at 11, Subcase Nos. 74-15051, In re SRBA Case No. 39576. Although the SRBA Court disallowed the high flow claims, it reaffirmed the Lemhi Basin Decree conclusion of law regarding "high water or flood water" use through its Partial Decree pursuant to I.R.C.P. 54(b) of the Basin 74 High Flow General Provision (Basin 74 General Provision). Basin 74 General Provision provides: "The following general provision shall govern the use of ‘High Flow’ surface water for irrigation use within the Lemhi Basin: The practice of diverting high flows in the Lemhi Basin, in addition to diverting decreed and future water rights that may be established pursuant to statutory procedures of the State of Idaho, is allowed provided (a) the waters so diverted are applied to beneficial use. (b) existing decreed rights and future appropriations of water are first satisfied."

(e)  Since the early 1990s Lemhi irrigators, with the assistance of state agencies, have led an effort to protect and enhance salmon runs in the Lemhi River Basin, including but not limited to providing passage flows for salmon, screening diversion works and implementing habitat improvement projects.

(f)  The long-term goal of the Lemhi irrigators is to conserve, restore, and enhance sufficient habitat to sustain viable fish populations in the Lemhi River Basin while protecting private property rights and preserving and enhancing the farming and ranching lifestyle and economy of the Lemhi River Basin.

(g)  In 2001, the Idaho Legislature enacted section 42-1506, Idaho Code, at the request of the Lemhi Basin irrigators. This statute authorized the Idaho Water Resource Board to appropriate a minimum stream flow in the lower reach of the Lemhi River for the purpose of providing fish passage and for protection of Lemhi water users from enforcement actions under the Endangered Species Act.

(h)  Use of high flows under the Basin 74 General Provision is not a protected property interest under Idaho law. Because the SRBA Court disallowed all "high water or flood water" claims, a conflict developed between irrigators who rely on the use of high flows under the Basin 74 General Provision and persons desiring to appropriate high flow for new uses.

(i)  The legislature finds (1) that the use of Lemhi River Basin high flow for holding water underground to augment the natural flow of the Lemhi River later in the irrigation season is a beneficial use of water; and (2) that it is in the public interest to protect through the appropriation process the entitlements to divert and use high flows under the Basin 74 General Provision for efficient administration of such uses and to aid in the proper planning for future development of the water resources of the Lemhi River Basin.

(j)  The Lemhi Basin stream flow maintenance applications provided for in this section are based upon the historic practice recognized by the Basin 74 High Flow General Provision, and therefore, are not intended to nor shall be construed as establishing a precedent for issuance of any future water rights in the State of Idaho.

(2)  Stream Flow Maintenance Applications. Lemhi irrigators who hold irrigation water rights decreed in the SRBA, and claim authority to divert and use Lemhi Basin high flows for stream flow maintenance pursuant to the Basin 74 General Provision may file an application for permit with the department of water resources to convert such use into a protectable water right on or before July 1, 2024. The application shall be upon forms provided by the department. The department shall process the application as provided in section 42-203A, Idaho Code.

(3)  Quantity of Right. The quantity of a stream flow maintenance water right shall be limited to the historic high flow use under the Basin 74 General Provision ancillary to irrigation water rights decreed in the SRBA, but not to exceed the ditch capacity of the decreed irrigation water rights on August 25, 2014.

(4)  Proof of Beneficial Use. The department may consider as part of its beneficial use examination for licensing of a permit under this section a permit holder’s past historic diversions of high flow under the Basin 74 General Provision.

(5)  Comprehensive Settlement. All applications filed under this section shall be subject to the terms and conditions of the Lemhi Basin Comprehensive Settlement Agreement Between the Idaho Water Resource Board, Idaho Department of Fish and Game, Idaho Office of Species Conservation and Various Lemhi Water Users, including but not limited to the following conditions:

(a)  Regardless of their priority dates, stream flow maintenance water rights shall include a condition requiring them to cease diversion while the McFarland Campground minimum stream flow water right established pursuant to section 42-1506A, Idaho Code, is being exercised.

(b)  Regardless of priority date, the water supply legally available to stream flow maintenance water rights created under this section that divert from a common source shall be distributed proportionately among the stream flow maintenance water rights diverting from the common source, except as otherwise provided for in the Lemhi Basin Comprehensive Settlement Agreement Between the Idaho Water Resource Board, Idaho Department of Fish and Game, Idaho Office of Species Conservation and Various Lemhi Water Users. For purposes of this section each tributary administered as a separate source pursuant to the SRBA Basin 74 Separate Streams General Provision is a common source. The mainstem Lemhi River and all tributaries in Basin 74 not listed in the SRBA Basin 74 Separate Streams General Provision are a common source.

(6)  Notice – How Given – Requirements. To ensure all persons claiming authority to divert or withdraw and use water under the Basin 74 General Provision are notified of the provisions of this section, the department of water resources is directed to give notice of the provisions of this section as follows:

(a)  By regular mail upon all persons within Idaho department of water resources Administrative Basin 74 who currently own an irrigation water right decreed in the SRBA a notice in writing of the existence of this section;

(b)  By publishing a notice in writing in a prominent and conspicuous place in at least one (1) newspaper of general circulation in Lemhi County, for at least one (1) day a month for three (3) consecutive months;

(c)  By posting a written notice, with the cooperation of the Lemhi County commission, in a prominent and conspicuous location in the Lemhi County courthouse;

(d)  By providing sufficient number of copies of the notice and declaration to the Lemhi County treasurer for enclosure with each mailing of one (1) or more statements of taxes due issued in 2023; and

(e)  By such other means the director of the department in his discretion determines will carry out the purposes of this section.

History:

[42-251, added 2022, ch. 290, sec. 1, p. 921.]