TITLE 42

IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION

CHAPTER 2

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

42-201.  Water rights acquired under chapter — Illegal diversion and application of water — Uses for which water right not required — Exclusive authority of department. (1) All rights to divert and use the waters of this state for beneficial purposes shall hereafter be acquired and confirmed under the provisions of this chapter and not otherwise. And after the passage of this title, all the waters of this state shall be controlled and administered in the manner herein provided. Such appropriation shall be perfected only by means of the application, permit and license procedure as provided in this title; provided, however, that in the event an appropriation has been commenced by diversion and application to beneficial use prior to the effective date of this act, it may be perfected under such method of appropriation.

(2)  No person shall use the public waters of the state of Idaho except in accordance with the laws of the state of Idaho. No person shall divert any water from a natural watercourse or apply water to land without having obtained a valid water right to do so, or apply it to purposes for which no valid water right exists.

(3)  Notwithstanding the provisions of subsection (2) of this section or section 42-229, Idaho Code, water may be diverted and used at any time, with or without a water right:

(a)  To extinguish an existing fire on private or public lands, structures, or equipment, or to prevent an existing fire from spreading to private or public lands, structures, or equipment endangered by an existing fire;

(b)  For forest practices as defined in section 38-1303(1), Idaho Code, and forest dust abatement. Such forest practices and forest dust abatement use is limited to two-tenths (0.2) acre-feet per day from a single watercourse; or

(c)  For the immediate cleanup or removal of hazardous substances or petroleum, as defined in section 39-7203, Idaho Code, that is part of an emergency response by a state emergency response team or local emergency response authority to a release, as defined in section 39-7103, Idaho Code, to protect public health or the environment. The Idaho department of environmental quality, in coordination with the Idaho office of emergency management, shall report to the Idaho department of water resources within seventy-two (72) hours the location, need, and expected duration of the emergency response and shall consult the director of the Idaho department of water resources on maintaining delivery of existing water rights during cleanup or removal operations.

(4)  For purposes of subsection (3)(b) of this section, no person shall divert water from a canal or other irrigation facility while the water is lawfully diverted, captured, conveyed, used or otherwise physically controlled by the appropriator.

(5)  If water is to be diverted from a natural watercourse within a water district, or from a natural watercourse from which an irrigation delivery entity diverts water, a person diverting water pursuant to subsection (3)(b) of this section shall give notice to the watermaster of the intent to divert water for the purposes set forth in said subsection. In the event that the water to be diverted pursuant to subsection (3)(b) of this section is not within a water district, but an irrigation delivery entity diverts water from the same natural watercourse, the required notices shall be given to said irrigation delivery entity. For uses authorized in subsection (3)(a) of this section, notice shall not be required but may be provided when it is reasonable to do so.

(6)  A water right holder who determines that a use set forth in subsection (3) of this section is causing a water right to which the holder is entitled to be deprived of water to which it may be otherwise entitled may petition the director of the department of water resources to order cessation of or modification of the use to prevent injury to a water right. Upon such a petition, the director shall cause an investigation to be made and may hold hearings or gather information in some other manner. In the event that the director finds that an injury is occurring to a water right, he may require the use to cease or be modified to ensure that no injury to other water rights occurs. A water right holder feeling aggrieved by a decision or action of the director shall be entitled to contest the action of the director pursuant to section 42-1701A(3), Idaho Code.

(7)  This title delegates to the department of water resources exclusive authority over the appropriation of the public surface and ground waters of the state. No other agency, department, county, city, municipal corporation or other instrumentality or political subdivision of the state shall enact any rule or ordinance or take any other action to prohibit, restrict or regulate the appropriation of the public surface or ground waters of the state, and any such action shall be null and void.

(8)  Notwithstanding the provisions of subsection (2) of this section, a municipality or municipal provider as defined in section 42-202B, Idaho Code, a sewer district as defined in section 42-3202, Idaho Code, or a regional public entity operating a publicly owned treatment works shall not be required to obtain a water right for the collection, treatment, storage or disposal of effluent from a publicly owned treatment works or other system for the collection of sewage or stormwater where such collection, treatment, storage or disposal, including land application, is employed in response to state or federal regulatory requirements. If land application is to take place on lands not identified as a place of use for an existing irrigation water right, the municipal provider or sewer district shall provide the department of water resources with notice describing the location of the land application, or any change therein, prior to land application taking place. The notice shall be upon forms furnished by the department of water resources and shall provide all required information.

(9)  Notwithstanding the provisions of subsection (2) of this section, a person or entity operating a canal or conduit for irrigation or other beneficial uses authorized by a water right that permits water to be diverted from a natural watercourse for such purposes shall not be required to obtain an additional water right for the incidental use of that same water where the water is diverted for irrigation or other beneficial use and thereafter used to generate hydroelectricity in the canal or conduit, if (a) the use for hydroelectric purposes does not increase the rate of diversion of water from the natural watercourse, and (b) the person or entity has the right to generate electricity under a license or exemption issued under the federal power act, a lease of power privileges or other authorization, agreement or contract with reclamation or other federal, state or local governmental agency. The incidental hydropower use shall be junior to and fully subordinated to all existing and future uses and shall be nonconsumptive. To qualify for this exemption, the person or entity must give written notice to the department of water resources and the watermaster describing the hydropower use, location and capacity of the project upon completion of the project. The notice must include a copy of the order or document authorizing the project. The notice must also certify that the incidental use of water for hydropower purposes under the existing water right meets all the requirements of this subsection.

History:

[(42-201) 1903, p. 223, sec. 41; am. R.C. & C.L., sec. 3252; C.S., sec. 5568; I.C.A., sec. 41-201; am. 1971, ch. 177, sec. 2, p. 843; am. 1986, ch. 313, sec. 2, p. 765; am. 2000, ch. 291, sec. 1, p. 1007; am. 2006, ch. 256, sec. 1, p. 793; am. 2008, ch. 320, sec. 1, p. 887; am. 2012, ch. 218, sec. 1, p. 596; am. 2016, ch. 139, sec. 1, p. 405; am. 2019, ch. 211, sec. 1, p. 641; am. 2020, ch. 6, sec. 1, p. 6.]