IDCODE

Chapter 1 APPROPRIATION OF WATER — GENERAL PROVISIONS

Sec.

§ 42-101. Nature of property in water.

Water being essential to the industrial prosperity of the state, and all agricultural development throughout the greater portion of the state depending upon its just apportionment to, and economical use by, those making a beneficial application of the same, its control shall be in the state, which, in providing for its use, shall equally guard all the various interests involved. All the waters of the state, when flowing in their natural channels, including the waters of all natural springs and lakes within the boundaries of the state are declared to be the property of the state, whose duty it shall be to supervise their appropriation and allotment to those diverting the same therefrom for any beneficial purpose, and the right to the use of any of the waters of the state for useful or beneficial purposes is recognized and confirmed; and the right to the use of any of the public waters which have heretofore been or may hereafter be allotted or beneficially applied, shall not be considered as being a property right in itself, but such right shall become the complement of, or one of the appurtenances of, the land or other thing to which, through necessity, said water is being applied; and the right to continue the use of any such water shall never be denied or prevented from any other cause than the failure on the part of the user thereof to pay the ordinary charges or assessments which may be made to cover the expenses for the delivery of such water.

History.

1901, p. 191, § 9b; reen. R.C. & C.L., § 3240; C.S., § 5556; I.C.A.,§ 41-101.

STATUTORY NOTES

Cross References.

Canals, reservoirs and ditches, power of eminent domain,§ 7-701.

City irrigation systems,§ 50-1801 et seq.

Constitutional provisions relating to water rights, Idaho Const., Art. XV.

Dams restricting the free and uninterrupted passage of fish, building or maintaining unlawful,§ 36-906.

Drainage districts,§ 42-2901 et seq.

Interference with ditches, canals or reservoirs,§ 18-4301 et seq.

Irrigation districts, Title 43, Idaho Code.

Preservation of Big Payette lake by appropriation by state of unappropriated waters thereof,§ 67-4301.

Preservation of Box Canyon waters by appropriation by state of unappropriated waters thereof,§ 67-4310. Preservation of Malad Canyon waters by appropriation by state of unappropriated waters thereof,§ 67-4307.

Preservation of Priest, Pend d’Oreille, and Coeur d’Alene lakes by appropriation by state of unappropriated waters thereof,§ 67-4304.

Preservation of waters of Big Springs area by appropriation by state of unappropriated waters thereof,§ 67-4309.

Preservation of waters of Niagara Springs by appropriation by state of unappropriated waters thereof,§ 67-4308.

Preservation of waters of Thousand Springs area by appropriation by state of unappropriated waters thereof,§ 67-4311.

Water companies for municipal water supply,§§ 30-801, 30-802.

Water power mills to have screens to prevent fish from entering,§ 36-906.

Water users’ associations: Exemption from taxes,§ 30-804.

Water users’ associations for maintenance of community lateral ditches,§ 42-1301 et seq.

Compiler’s Notes.

History of Irrigation Law.

History of Irrigation Law. Two acts passed in 1881 were the basis of the irrigation law of the state for a number of years. The act of Feb. 10, 1881 (Laws 1881, p. 267) regulated the appropriation of water, requiring the posting of notices at the point of diversion and the recording of the same as in the case of mining claims, and prescribing the manner of procuring rights of way by proceedings before the county commissioners. The act of Feb. 7 (Laws 1881, p. 273) regulated the distribution of water through watermasters whose election and duties were therein provided for. The provisions of these two acts were substantially perpetuated in R.S.,§§ 3155-3205.

A new act covering the appropriation of water and providing for fixing water rates by the district court was enacted in 1895 (Laws 1895, p. 174). This act was in part reenacted and in part repealed by the act of Feb. 25, 1899 (Laws 1899, p. 380) which added several new provisions to the law and gave to the county commissioners jurisdiction to fix water rates. The appropriation provisions of the 1899 law were repealed by Laws 1903, p. 223, which, for the first time, departed from the old system of posting and recording notices of appropriation, placing the matter in the hands of the state engineer. The act of 1903, with such sections of the 1899 and earlier laws as are still in force, comprise the basis of this title, which has been frequently amended since the enactment of the R.C.

Compiler’s notes.

Compiler’s notes. S.L. 1919, ch. 8, § 38, p. 65 (§ 67-3401 herein) abolished the office of state engineer, and § 37 of the same act (§ 67-3301 herein) vested his powers and duties in the department of reclamation. The substitutions of offices and officials authorized by that act have been made accordingly, the text of the preexisting law not being changed except insofar as necessary in making substitutions.

S.L. 1970, ch. 12, § 2, p. 21 (§ 42-1801a herein) substituted the department of water administration for the department of reclamation. In 1974 such act was amended by 1974, ch. 20, § 28, p. 533 wherein the department of water resources was substituted for the department of water administration.

CASE NOTES

Adverse user. Appropriation of water.

Adverse User.

Where owners of irrigation ditch continued to use ditch after owner of land where point of diversion was located revoked license, dissolution of the injunction against interference with the use of the ditch was sufficient notice to owner of land of adverse use by owners of ditch to start the prescriptive period. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Appropriation of Water.

To perfect an adverse claim for water ripening into title, claimant must show that his use of the water deprived the prior appropriators of water at times when such prior appropriators actually needed the water; the use does not become adverse until it interferes with the use thereof by the prior appropriators, and therefore proof merely that claimant used water and claimed the right to use it is no proof whatever of adverse use. Head v. Merrick, 69 Idaho 106, 203 P.2d 608 (1949). Appropriation of Water.

If one appropriates water for beneficial use, and then sells, rents, or distributes it to others who apply it to such beneficial use, he has a valuable right which is entitled to protection as property right. Murray v. Public Utils. Comm’n, 27 Idaho 603, 150 P. 47 (1915).

This section indicates that water is subject to appropriation only when flowing in its natural channel. Rabido v. Furey, 33 Idaho 56, 190 P. 73 (1920).

Spring situated wholly on government homestead entry is source from which valid water appropriation may be made, with entryman’s consent. Short v. Praisewater, 35 Idaho 691, 208 P. 844 (1922); Keiler v. McDonald, 37 Idaho 573, 218 P. 365 (1923).

Where an appropriator diverted and applied water on his own land to a beneficial use without the initiation of the right in trespass, and diverted the water, continuously and uninterruptedly, for such beneficial use, his right by virtue of appropriation was complete. Jones v. McIntire, 60 Idaho 338, 91 P.2d 373 (1939).

Where village duly appropriated to its beneficial use all water, which was public, from certain springs, and no other persons had ever appropriated this water to beneficial use, village acquired right to use all the water from these springs. Village of Peck v. Denison, 92 Idaho 747, 450 P.2d 310 (1969).

Where an owner of land diverted water from a spring on the land and applied it to a beneficial use, the appropriation was valid when made, and the water right thus perfected was appurtenant to the land which received the benefit of the water and thus passed on to the person who acquired title to the benefited land. Parke v. Bell, 97 Idaho 67, 539 P.2d 995 (1975).

Diversion is a prerequisite to appropriation of water, along with the application of such water to a beneficial use. Hidden Springs Trout Ranch, Inc. v. Hagerman Water Users, Inc., 101 Idaho 677, 619 P.2d 1130 (1980).

While the prior appropriation doctrine gives pre-eminent rights to those who put water to beneficial use first in time, this is not an absolute rule without exception. The Idaho Constitution and statutes do not permit waste and require water to be put to beneficial use or be lost. Rangen, Inc. v. Idaho Dep’t of Water Res. (In re Distrib. of Water to Water Right Nos. 36-02551 & 36-07694), 160 Idaho 119, 369 P.3d 897 (2016).

Channel of Creek.

Substitution of an artificial drainage channel for the natural channel of creek did not affect rights of users of waters of creek to use of its water course to drain away waste waters arising from use of the waters of the creek. Poole v. Olaveson, 82 Idaho 496, 356 P.2d 61 (1960).

Compliance with Statutes.

The statutes, with respect to proof of application for beneficial use of public water and allotment of rights appurtenant to land, have application only where there is a full compliance with such statutes; otherwise the right to assert the doctrine of relation is cut off. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Constitutionality.

Contracts for Water Rights.

This section is in harmony with Idaho Const., Art. XV, § 1. Adams v. Twin Falls-Oakley Land & Water Co., 29 Idaho 357, 161 P. 322 (1916); Short v. Praisewater, 35 Idaho 691, 208 P. 844 (1922); Poole v. Olaveson, 82 Idaho 496, 356 P.2d 61 (1960). Contracts for Water Rights.

Contractual provision empowering company to refuse delivery of water during default by user in payment other than for maintenance was contrary to public policy and void. Adams v. Twin Falls-Oakley Land & Water Co., 29 Idaho 357, 161 P. 322 (1916).

Contract between irrigation company and purchaser of water rights to the effect that no water should be delivered to the latter until maintenance assessments for current year have been paid to company was valid. Parrott v. Twin Falls Salmon River Land & Water Co., 32 Idaho 759, 188 P. 451 (1920).

Irrigation company was without authority to withhold water delivery on account of nonpayment of past due assessments. Reynolds v. North Side Canal Co., 36 Idaho 622, 213 P. 344 (1923).

Provision in contract between a Carey Act company and settler upon school land empowering company, upon failure by settler to make required payments for the purchase of water rights, to declare a forfeiture of contract and all payments made theretofore is void. Rogers v. Thomas, 38 Idaho 802, 226 P. 165 (1924).

Where state contracts provided for storage dams, permittee was authorized to take all waters up to amount specified in contract, whether or not it included flood or winter flow of granted streams. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Entity that applies the water to beneficial use has a right that is more than a contractual right. United States v. Pioneer Irrigation Dist. (In re SRBA Case No. 3957), 144 Idaho 106, 157 P.3d 600 (2007).

Damages for Loss of Use.

Plaintiff, who had prior decreed rights to water, was entitled to recover damages from the defendants for loss or damage to plaintiff’s crops proximately caused by acts of defendants, which deprived plaintiff of the water decreed to his land, and of the use of which he was entitled. Follett v. Taylor Bros., 77 Idaho 416, 294 P.2d 1088 (1956).

Delivery to Outsider.

State may forbid appropriation and diversion of its public waters for application and use beyond confines of state. Walbridge v. Robinson, 22 Idaho 236, 125 P. 812 (1912).

Delivery of water to outsider where same is not needed by user in district is not dedication. Yaden v. Gem Irrigation Dist., 37 Idaho 300, 216 P. 250 (1923).

Diversion.

It is sufficient, for establishing diversion, that the water flows in a different channel than it would have done absent intervention by the appropriator; where, instead of running downhill directly into the creek, water entered a pipe and traveled approximately one-half mile before the water in dispute was lost as seepage and reemerged would be considered diverted for purposes of appropriation. Hidden Springs Trout Ranch, Inc. v. Hagerman Water Users, Inc., 101 Idaho 677, 619 P.2d 1130 (1980).

Evidence of Compliance With Statute.

Evidence Showing Diversion and Use.

Where an irrigation district has not proven the issuance of a permit by the department of water resources, nor made a showing of a compliance with the law with respect to appropriation, it is not entitled to prove a beneficial using of an additional amount of water from a natural stream. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936). Evidence Showing Diversion and Use.

Evidence supported a finding that the owners of an irrigation ditch, who had diverted water from a certain creek for many years, had established a right thereto by actual diversion and use. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Exceptions to Section.

This section does not apply to waste water from irrigation system, although such water may be flowing in natural channel of stream. United States v. Haga, 276 F. 41 (D. Idaho 1921).

This section does not include percolating waters. Public Utils. Comm’n v. Natatorium Co., 36 Idaho 287, 211 P. 533 (1922).

Interstate Streams.

Under the doctrine of appropriation, one state may acquire priority over another state in the use of water of an interstate stream. Weiland v. Pioneer Irrigation Co., 259 U.S. 498, 42 S. Ct. 568, 66 L. Ed. 1027 (1922).

Laches Applied to Purchaser of Land.

The equitable principle of laches and negligence barred the correction of water right decree which had been entered 16 years prior and 7 years had elapsed after petitioner had purchased the land, during which time the rights of other owners of water rights had intervened. Albion-Idaho Land Co. v. Adams, 58 F. Supp. 579 (D. Idaho 1945).

Local Regulation.

Where a dairymen’s association and a cattle association filed a complaint challenging the constitutionality of Gooding County, Idaho, Ordinance No. 90, which regulated water quality at confined animal feeding operations (CAFOs), the supreme court held that Ordinance 90 did not violate Idaho Const., Art. XII, § 2. While this section provided that control over the appropriation of water was vested in the state, regulation of water quality by local government was not preempted; because of Idaho’s diverse geographical setting, water regulation at CAFOs does not call for a uniform regulatory scheme. Idaho Dairymen’s Ass’n v. Gooding County, 148 Idaho 653, 227 P.3d 907 (2010).

Mandamus to Compel Delivery.

Upon proper demand and tender of payment of assessment for current year, stockholder may compel delivery of water by writ of mandamus. Reynolds v. North Side Canal Co., 36 Idaho 622, 213 P. 344 (1923).

Nature of Water Right.

Clause of this section which provides that right of water user shall not be considered as being a property right in itself but shall become a complement, or one of the appurtenances, of the land on which water is applied, does not deprive or divest right to use of water of any of the qualities or elements of property it otherwise might have. Hard v. Boise City Irrigation & Land Co., 9 Idaho 589, 76 P. 331 (1904). Where the United States bureau of reclamation (BOR) filed water right claims against irrigation entities regarding projects developed pursuant to the Reclamation Act of 1902, any rights held by BOR were subject to rights of the beneficial users that were served by the irrigation districts because, inter alia, (1) federal law deferred to state law in determining the rights to water in the reclamation projects, (2) the beneficial users had an interest that was stronger than mere contractual expectancy, and (3) title to the use of the water was held by the consumers or users of the water. United States v. Pioneer Irrigation Dist. (In re SRBA Case No. 3957), 144 Idaho 106, 157 P.3d 600 (2007).

Policy of State.

The policy of the law of the state is to secure the maximum use and benefit and least wasteful use of its water resources. Poole v. Olaveson, 82 Idaho 496, 356 P.2d 61 (1960).

Prescriptive Right in Ditch Unaffected by Foreclosure.

A foreclosure decree against a land owner did not destroy the prescriptive right of ditch owners to maintain a point of diversion on the landowner’s property, where the owners of such ditch continued as prescriptive users for more than the statutory period prior to the institution of a suit seeking a decree of adjudication of water rights, and the fact that the ditch owners were joined in the foreclosure suit does not militate against their prescriptive right in such ditch. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Remedies for Nonpayment of Maintenance.

For user’s default in payment of maintenance, water company may proceed either under this section or under§ 42-806 (presently§ 43-806). Adams v. Twin Falls-Oakley Land & Water Co., 29 Idaho 357, 161 P. 322 (1916).

Right of Purchaser After Decree Adjudicating Water Rights.

Where purchaser acquired land after the rendition of water right decree, he received only that which the vendor had for sale, and if the right to correct the decree had been lost by laches or otherwise, the purchaser was in no better position than the vendor. Albion-Idaho Land Co. v. Adams, 58 F. Supp. 579 (D. Idaho 1945).

Rights Between Water Users.

Priority of appropriation gives the better right between those using the water. Beecher v. Cassia Creek Irrigation Co., 66 Idaho 1, 154 P.2d 507 (1944).

It was error for trial court to require users to restrict use to amount of water represented by shares in company, if use was not rotated, since it is policy of the law to restrict use to a percentage, either above or below amount of shares depending upon availability of water and demand. Simonson v. Moon, 72 Idaho 39, 237 P.2d 93 (1951).

Rights of Senior Appropriator.

Rights to Ditches and Water Separate.

A senior appropriator of water retains his right to surface waste and seepage water and may reclaim it, even though such water has been used by a junior appropriator, even for as long as 40 years. Hidden Springs Trout Ranch, Inc. v. Hagerman Water Users, Inc., 101 Idaho 677, 619 P.2d 1130 (1980). Rights to Ditches and Water Separate.

As possessory rights to ditches and to use of water may each have an existence independent of the other, a ditch may be conveyed, reserving water right, or water may be conveyed, reserving ditch. Ada County Farmers Irrigation Co. v. Farmers Canal Co., 5 Idaho 793, 51 P. 990 (1898).

Riparian Rights.

Riparian water rights are not recognized in Idaho. Jones v. McIntire, 60 Idaho 338, 91 P.2d 373 (1939). However, see Drake v. Earhart, 2 Idaho 750, 23 P. 541 (1890); Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 101 P. 1059 (1909).

Slough As Water Course.

Where a creek was a continuous water course, the fact that it flowed through sloughs did not change its character or prevent appropriation of waters therefrom. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936). See also, Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 101 P. 1059 (1909).

Suit for Exclusive Use and Possession.

Suit by federally recognized Indian tribe brought in federal court against the state and various state agencies, and numerous state officials in their individual capacities seeking title to the banks and submerged lands of lake and various rivers and streams that were within their reservation and a declaratory judgment to establish its entitlement to the exclusive use, occupancy and right to quiet enjoyment of the submerged lands as well as a declaration of the invalidity of all Idaho statutes, ordinances, regulations, customs or usages which purport to regulate, authorize, use or affect in any way the submerged land and a permanent injunction prohibiting the state from permitting or taking any action in violation of the tribe’s rights of exclusive use, was barred by Idaho’s Eleventh Amendment immunity since the exception of Ex Parte Young , 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), did not apply, and a state forum was available to hear such claims. Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997).

Tiling of Ditch.

Where, in suit by irrigation district to quiet title to ditch on land owned by defendant, defendant complained that a portion of the ditch had been tiled by the plaintiff so as to deprive the defendant of the use of the ditch, the court will assume that ditch was tiled for the purpose of preventing waste, since it is the policy of the law to increase effective use of water and to prevent its waste. Reynolds Irrigation Dist. v. Sproat, 69 Idaho 315, 206 P.2d 774 (1948).

Title of State.

Title to public waters is held by the state in its sovereign capacity as representative of all the people. Walbridge v. Robinson, 22 Idaho 236, 125 P. 812 (1912).

Waste Water.

The interest or title of the state to all waters of the state as provided by this section is not in the proprietary sense, but rather in the sovereign capacity as representative of all the people for the purpose of guaranteeing that the common rights of all shall be equally protected and that no one shall be denied his proper use and benefit of this common necessity. Poole v. Olaveson, 82 Idaho 496, 356 P.2d 61 (1960). Waste Water.

— Appropriation of.

No distinction is to be drawn between waste water appropriated after it has been put to irrigation use and waste water seeping from irrigation canals, and no appropriator of waste water should be able to compel any other appropriator to continue the waste of water which benefits the former. Hidden Springs Trout Ranch, Inc. v. Hagerman Water Users, Inc., 101 Idaho 677, 619 P.2d 1130 (1980).

— Drainage.

Where springs arose in area of respondent’s land and those springs were tributary of the watercourse of a creek, waste water in that area constituted a by-product of the irrigation waters likewise arising in the area and reclaiming of such waste water by drainage into the natural channel of a stream, if without detriment or damage to others is in keeping with the expressed policy of the state to secure the maximum beneficial and least wasteful use of its water resources. Poole v. Olaveson, 82 Idaho 496, 356 P.2d 61 (1960).

Water Right Appurtenant to Land.

Appellants’ decreed water right constitutes real property and such right is appurtenant to appellants’ land to which the water represented thereby has been beneficially applied. Anderson v. Cummings, 81 Idaho 327, 340 P.2d 1111 (1959).

The owners of the old lands, through and by means of the irrigation district, acquired, and for many years applied to the irrigation of their lands, valuable water rights which had become appurtenant and dedicated to their lands, and which were held in trust by the district for their use; they could not thereafter, without their consent, be deprived of the use of that water when needed to irrigate their lands. Bradshaw v. Milner Low Lift Irrigation Dist., 85 Idaho 528, 381 P.2d 440 (1963).

Plaintiffs obtained a ditch right and a portion of the Joe Creek water right as appurtenances to the property when they were conveyed a parcel of land. The district court properly determined that plaintiffs could tap defendant’s pipeline as it crossed plaintiffs’ property to receive water from Joe Creek pursuant to plaintiffs’ water right. Mullinix v. Killgore’s Salmon River Fruit Co., 158 Idaho 269, 346 P.3d 286 (2015).

Water Right As Real Property.

Water rights are included within the definition of real property by§ 55-101. Ireton v. Idaho Irrigation Co., 30 Idaho 310, 164 P. 687 (1917).

Waters from Natural Spring.

It was held that waters from a creek, which was formed by natural springs on privately owned property, still constituted public waters within this section and cognate legislation, and were therefore subject to appropriation. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936). See also Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 101 P. 1059 (1909).

Insofar as the rights of appropriation are concerned, waters of a natural spring or stream, flowing from the lands of another where they arise, are subject to diversion and application to beneficial use if there is not a prior right in existence. Jones v. McIntire, 60 Idaho 338, 91 P.2d 373 (1939); Maher v. Gentry, 67 Idaho 559, 186 P.2d 870 (1947). Plaintiffs, who established beneficial use of spring waters for a period in excess of 40 years, which beneficial use had been known to the defendants, were entitled to have title quieted in the springs, regardless of whether the springs were public or private. Whittaker v. Kauer, 78 Idaho 94, 298 P.2d 745 (1956).

It is only when the waters of natural springs flow on privately owned lands into a natural channel that such waters when flowing in the natural channel become public waters subject to appropriation, diversion and application to a beneficial use. Nordick v. Sorensen, 81 Idaho 117, 338 P.2d 766 (1959).

Cited

Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 125 P. 208 (1912); Ramseyer v. Jamerson, 78 Idaho 504, 305 P.2d 1088 (1957); Bradshaw v. Milner Low Lift Irrigation Dist., 85 Idaho 528, 381 P.2d 440 (1963); Stevenson v. Steele, 93 Idaho 4, 453 P.2d 819 (1969); Baker v. Ore-Ida Foods, Inc., 95 Idaho 575, 513 P.2d 627 (1973); Southern Idaho Fish & Game Ass’n v. Picabo Livestock, Inc., 96 Idaho 360, 528 P.2d 1295 (1974); Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977); Joyce Livestock Co. v. United States (In re SRBA Case No. 39576), 144 Idaho 1, 156 P.3d 502 (2007); First Sec. Corp. v. Belle Ranch, LLC, — Idaho —, 451 P.3d 446 (2019).

OPINIONS OF ATTORNEY GENERAL

Lava Hot Springs.

The rights to the use of all hot waters that rise and flow at Lava Hot Springs are water rights that have been appropriated under state law and are subject to regulation by the Idaho department of water resources under the provisions of title 42 of the Idaho Code (§§ 42-101, 42-103, 42-104 and 42-106).OAG 97-1.

The Lava Springs foundation has the authority under title 67, chapter 44, Idaho Code, to enter into agreements involving easements with private parties to discharge the foundation’s waste water. However, the foundation may not authorize the use of any portion of its water in a manner that is inconsistent with its state water right. Other parties seeking to use the foundation’s waste water for new uses or on lands other than the authorized place of use must file for a permit from the Idaho department of water resources.OAG 97-1.

Since Idaho law, Idaho Const., Art. XV, § 3 and§§ 42-101, 42-103, 42-104 and 42-106, specifies the law of prior appropriation as the method to establish the right to use water in Idaho, absent a clear statutory expression by the legislature to create an exception to the appropriation statutes, all rights to the use of water in Idaho must be acquired by appropriation and the language in§§ 67-4401 and 67-4403 is not a clear expression that the legislature intended to create an exception from the appropriation process for the waters at Lava Hot Springs as the most reasonable interpretation of this language is that the foundation’s jurisdiction and control over waters at Lava Hot Springs refers to those waters that have already been appropriated or that will be appropriated in the future.OAG 97-1.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

A Primer on Groundwater Law, Joseph W. Dellapenna. 49 Idaho L. Rev. 265 (2013).

Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

Federal Reserved Water Rights as a Rule of Law, Michael C. Blumm. 52 Idaho L. Rev. 369 (2016).

Am. Jur. 2d.

C.J.S.

§ 42-102. Measurement of water.

A cubic foot of water per second of time shall be the legal standard for the measurement of water in this state, and it shall be the duty of the department of water resources to devise a simple, uniform system for the measurement and distribution of water.

History.

1899, p. 380, §§ 1, 21; reen. R.C. & C.L., § 3241; C.S., § 5557; I.C.A.,§ 41-102.

STATUTORY NOTES

Cross References.

Acre foot recognized as standard for stored water,§ 42-202.

Department of water resources,§ 42-1701 et seq.

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

CASE NOTES

Courts Must Recognize Standard.

This section is the measurement of water which should be recognized by court in entering decree of distribution of water. Lee v. Hanford, 21 Idaho 327, 121 P. 558 (1912).

Requirements of Decree.

The requirement that a decree of water rights set out a specific water measurement is not imposed by this section as this section simply provides the basic unit of measurement of water for whatever purpose may be relevant. Village of Peck v. Denison, 92 Idaho 747, 450 P.2d 310 (1969).

§ 42-103. Right acquired by appropriation.

The right to the use of the unappropriated waters of rivers, streams, lakes, springs, and of subterranean waters or other sources within this state shall hereafter be acquired only by appropriation under the application, permit and license procedure as provided for in this title, unless hereinafter in this title excepted.

History.

R.S., § 3155; 1899, p. 380, § 2; reen. R.C. & C.L., § 3242; C.S., § 5558; I.C.A.,§ 41-103; am. 1971, ch. 177, § 1, p. 843.

STATUTORY NOTES

Cross References.

Adjudication of water rights,§§ 42-1401 to 42-1414.

CASE NOTES

Adverse User.

Compliance with Statutes.

The statutes, with respect to proof of application for beneficial use of public water and allotment of rights appurtenant to land, have application only where there is a full compliance with such statutes, otherwise, the right to assert the doctrine of relation is cut off. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Constitutional Use Water Right.

A constitutional use water right is created simply by diverting unappropriated waters and putting those waters to beneficial use. Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977).

Where the water right of the upstream appropriator with a valid permit was junior to that of the downstream appropriator with constitutional water rights, and the former’s impoundment of water interfered with the latter’s senior entitlement, the upstream appropriator was liable for any damages caused by the wrongful interference. R.T. Nahas Co. v. Hulet, 114 Idaho 23, 752 P.2d 625 (Ct. App. 1988).

An appropriator, whose right is based upon a valid, although unadjudicated, constitutional method of appropriation, retains a senior claim in relation to a person holding a later issued permit. R.T. Nahas Co. v. Hulet, 114 Idaho 23, 752 P.2d 625 (Ct. App. 1988).

Trial court properly determined that United States had not asserted its water rights under the constitutional method of appropriation because, under that method the United States, as the claimant, was required to put the water to beneficial use, which it had failed to do. On the other hand, a livestock company had established its rights to the instream water because the company’s predecessors, by watering their stock, had put the water to beneficial use. Joyce Livestock Co. v. United States (In re SRBA Case No. 39576), 144 Idaho 1, 156 P.3d 502, cert. denied, 552 U.S. 990, 128 S. Ct. 487, 169 L. Ed. 2d 339 (2007).

Continued Use a Valid Appropriation.

Continued and uninterrupted use of water for period of more than five years constituted valid appropriation. Short v. Praisewater, 35 Idaho 691, 208 P. 844 (1922).

Evidence in the cited case supported a finding that the owners of an irrigation ditch, who had diverted water from a certain creek for many years, had established a right thereto by actual diversion and use. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Where an appropriator diverted and applied water on his own land to a beneficial use without the initiation of the right in trespass, and diverted the water continuously and uninterruptedly for such beneficial use, his right by virtue of appropriation was complete. Jones v. McIntire, 60 Idaho 338, 91 P.2d 373 (1939).

Dependence on Supply.

The right of appropriation does not carry with it an unconditional guarantee of water regardless of supply of water available. Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977).

Ditch Owners’ Rights After Foreclosure.

A foreclosure decree against a landowner did not destroy the prescriptive right of ditch owners to maintain a point of diversion on the landowner’s property, where the owners of such ditch continued as prescriptive users for more than the statutory period prior to the institution of a suit seeking a decree of adjudication of water rights, and the fact that the ditch owners were joined in the foreclosure suit does not militate against their prescriptive right in such ditch. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Ditch Users Not Trespassers.

Where a landowner attempted to revoke the license of ditch owners, which ditch was situated upon the property of the landowner, but, notwithstanding such attempted revocation, the ditch owners continued to use the ditch for the prescriptive period, which use was continuous, notorious, and under claim of right, the landowner or his successors in estate cannot contend that the ditch owners, after such revocation, were mere trespassers. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Downstream Landowner.

Where, under his license and certificate of water right plaintiff, downstream landowner, was entitled to year round unobstructed flow of creek for irrigation and domestic purposes up to 1.44 cubic feet per second, and other plaintiffs owned right to have the water proceed through their field by diversion ditch, plaintiff was entitled to have the water flow uninterrupted any time it would reach his land. Ward v. Kidd, 87 Idaho 216, 392 P.2d 183 (1964).

Evidence of Compliance With Statutes.

Where an irrigation district had not proven the issuance of a permit by the department of water resources, nor made a showing of a compliance with the law with respect to appropriation, it was not entitled to prove a beneficial using of an additional amount of water from a natural stream. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Natural Springs.

Water of natural springs is public water and subject to valid appropriation to beneficial use. Rabido v. Furey, 33 Idaho 56, 190 P. 73 (1920); Short v. Praisewater, 35 Idaho 691, 208 P. 844 (1922).

Waters from a creek, which was formed by natural springs on privately owned property, constituted public waters within this section and cognate legislation, and were therefor subject to appropriation. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936). See also, Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 101 P. 1059 (1909).

Waters of a natural spring or stream, flowing from the lands of another where they arose were subject to diversion and application to beneficial use if there was not a prior right in existence. Jones v. McIntire, 60 Idaho 338, 91 P.2d 373 (1939); Maher v. Gentry, 67 Idaho 559, 186 P.2d 870 (1947).

It is only when the waters of natural springs flow on privately owned lands into a natural channel that such waters become public waters subject to appropriation, diversion and application to a beneficial use. Nordick v. Sorensen, 81 Idaho 117, 338 P.2d 766 (1959).

Ownership of Land.

Water may be appropriated for beneficial use on land not owned by appropriator, and such water rights become appropriator’s property. First Sec. Bank v. State, 49 Idaho 740, 291 P. 1064 (1930).

Percolating Waters.

Percolating subterranean waters may be appropriated either by the statutory permit method, or by actual diversion and application to a beneficial use. Silkey v. Tiegs, 51 Idaho 344, 5 P.2d 1049 (1931).

Quiet Title Action.

Plaintiffs, who established beneficial use of spring waters for a period in excess of 40 years, which beneficial use had been known to the defendants, were entitled to have title quieted in the springs, regardless of whether the springs were public or private. Whittaker v. Kauer, 78 Idaho 94, 298 P.2d 745 (1956).

Relation to Other Laws.

The right defined by this section is not abrogated by§ 42-229, but the latter section regulates the method and means by which one may perfect a right to the use of water. State ex rel. Tappan v. Smith, 92 Idaho 451, 444 P.2d 412 (1968).

Riparian Rights.

Seepage Water.

This section does not apply to waste water from irrigation system, although such water may be flowing in the natural channel of stream. United States v. Haga, 276 F. 41 (D. Idaho 1921).

Slough As Watercourse.

Where a creek was a continuous watercourse, the fact that it flowed through sloughs did not change its character or prevent appropriation of waters therefrom. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936). See also, Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 101 P. 1059 (1909).

Subterranean Waters.

Rule of first in time, first in right applied to subterranean waters confined horizontally between impervious strata in such a manner that when artificial openings were made in the upper stratum water was forced to, or above, surface of ground. Hinton v. Little, 50 Idaho 371, 296 P. 582 (1931).

Vesting of Rights.

A water right does not vest until the statutory procedures for obtaining a license are completed, including the issuance of the license. Idaho Power Co. v. Idaho Dep’t of Water Res. (In re Licensed Water Right No. 03-7018), 151 Idaho 266, 255 P.3d 1152 (2011).

Cited

Speer v. Stephenson, 16 Idaho 707, 102 P. 365 (1909); Nielson v. Parker, 19 Idaho 727, 115 P. 488 (1911); Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 125 P. 208 (1912); Bower v. Moorman, 27 Idaho 162, 147 P. 496 (1915); Stevenson v. Steele, 93 Idaho 4, 453 P.2d 819 (1969); State, Dep’t of Parks v. Idaho Dep’t of Water Admin., 96 Idaho 440, 530 P.2d 924 (1974); Crow v. Carlson, 107 Idaho 461, 690 P.2d 916 (1984); Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996); United States v. Black Canyon Irrigation Dist. (In re SRBA Case No. 39576), 163 Idaho 54, 408 P.3d 52 (2017).

OPINIONS OF ATTORNEY GENERAL

Lava Hot Springs.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

Am. Jur. 2d.

C.J.S.

§ 42-104. Appropriation must be for beneficial purpose.

The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest ceases to use it for such purpose, the right ceases.

History.

R.S., § 3156; 1899, p. 380, § 3; reen. R.C. & C.L., § 3243; C.S., § 5559; I.C.A.,§ 41-104.

CASE NOTES

Beneficial Use.

Where the United States bureau of reclamation (BOR) filed water right claims against irrigation entities regarding projects developed pursuant to the Reclamation Act of 1902, any rights held by BOR were subject to rights of the beneficial users that were served by the irrigation districts because, inter alia, (1) federal law deferred to state law in determining the rights to water in the reclamation projects, (2) the beneficial users had an interest that was stronger than mere contractual expectancy, and (3) title to the use of the water was held by the consumers or users of the water. United States v. Pioneer Irrigation Dist. (In re SRBA Case No. 3957), 144 Idaho 106, 157 P.3d 600 (2007).

Time Allowed Appropriator to Use Water.

Appropriator of water for irrigation purposes, after conducting water to point of intended use, had a reasonable length of time to apply it to such intended use. Hall v. Blackman, 8 Idaho 272, 68 P. 19 (1902); Bennett v. Nourse, 22 Idaho 249, 125 P. 1038 (1912).

Use by Junior Appropriators.

To allow a junior, or other appropriator, to establish an adverse right to such water during times when it is not required and not being used by the original appropriator, on the theory that such adverse use was inconsistent with the right of the prior appropriator, would subvert the purpose of the law and encourage wasteful diversion and use of water in violation thereof. Mountain Home Irrigation Dist. v. Duffy, 79 Idaho 435, 319 P.2d 965 (1957).

Under§ 18-4302 and the constitutional policy of securing the maximum use and benefit from water resources, it is the duty of the prior appropriator to allow the water, which he has a right to use, to flow down the channel for the benefit of junior appropriators when he has no immediate need for the use thereof. Mountain Home Irrigation Dist. v. Duffy, 79 Idaho 435, 319 P.2d 965 (1957).

Waste Irrigation Water.

Cited

Where springs arise in area of respondent’s land and those springs were tributary of the watercourse of a creek, waste water in the area constituted a by-product of the irrigation waters likewise arising in the area and reclaiming of such waste water by drainage into the natural channel of a stream, if without detriment or damage to others, is in keeping with the expressed policy of the state to secure the maximum beneficial and least wasteful use of its water resources. Poole v. Olaveson, 82 Idaho 496, 356 P.2d 61 (1960). Cited Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 125 P. 208 (1912); Village of Peck v. Denison, 92 Idaho 747, 450 P.2d 310 (1969); Stevenson v. Steele, 93 Idaho 4, 453 P.2d 819 (1969).

OPINIONS OF ATTORNEY GENERAL

Lava Hot Springs.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

Am. Jur. 2d.

C.J.S.

§ 42-105. Use of natural waterways — Measurement of commingled water — Approval of right to exchange water.

The water that a person is entitled to divert by reason of a valid water right may be turned into the channel of a natural waterway and mingled with its water, and then reclaimed, but in reclaiming the water so mingled, the amount of water to which prior appropriators may be entitled shall not be diminished, and due allowance shall be made for loss by evaporation and seepage. The use of natural waterways to commingle and reclaim water shall be subject at all times to the supervision and control of the director of the department of water resources and shall be subject to the regulation of the watermaster within an established water district. The amounts of water turned into or diverted from all natural waterways are subject to the requirement of measurement and reporting.
The water that a person is entitled to divert by reason of a valid water right, or water that a person is seeking to appropriate, may be exchanged for water under another water right, or for other water from the same or another source, as hereinafter provided:
1. If the applicant intends to exchange water the applicant is entitled to divert under an existing valid water right for any other water, approval of the exchange shall be obtained by filing an application under the provisions of section 42-240, Idaho Code;
2. If the applicant proposes to exchange water that the applicant is seeking to appropriate, approval of the exchange shall be obtained by filing an application to appropriate water under section 42-202, Idaho Code. The proposed exchange shall be described in the application and the application shall be processed in accordance with the provisions of section 42-203A, Idaho Code. If the application seeks to exchange the water to be appropriated with water available under another water right, the application shall be accompanied by an agreement to exchange signed by the owner of the existing water right. An exchange with water under an existing water right cannot result in an enlargement in use of the existing right.
An exchange of water hereafter made without the approval of the department of water resources as provided in this section shall be invalid. Nothing in this section shall affect the right a person may have or may obtain to turn water into a ditch or other artificial conveyance and reclaim the water.

History.

R.S., § 3158; reen. R.C., § 3244; am. 1911, ch. 149, § 1, p. 454; C.L., § 3244; C.S., § 5560; I.C.A.,§ 41-105; am. 1969, ch. 300, § 1, p. 900; am. 1998, ch. 424, § 1, p. 1339.

STATUTORY NOTES

Cross References.

Watermasters,§ 42-605.

Compiler’s Notes.

CASE NOTES

Contracts for Supplemental Water.

Wilder irrigation district has power to enter into contract with federal government to obtain supplemental water supply for irrigation, to be replaced later with water from another source. Board of Dirs. v. Jorgensen, 64 Idaho 538, 136 P.2d 461 (1943).

Cotenants of Canal System.

The cotenant of a canal system must necessarily be able to commingle the waters with other cotenants, if not, condemnation of concurrent ownership in a canal system would never be possible. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Decreed and Undecreed Waters.

Watermaster upon a stream, waters of which have been decreed, cannot be compelled by mandatory injunction to distribute decreed waters of one stream in exchange for undecreed waters of another. Daniels v. Adair, 38 Idaho 130, 220 P. 107 (1923).

Exchange Distinguished.

An exchange differs from commingling, although the two concepts are closely related and may in some circumstances overlap; essentially, commingling occurs when waters are mixed and later separated, and exchange takes place when different waters are traded without being mixed. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Fluctuating Flow.

An easement which granted a power company the right to fluctuate the flow of a river would be construed as granting something in addition to the right of the power company to fill completely the natural channel of the river, since the power company had the latter right without the aid of an easement. Griffeth v. Utah Power & Light Co., 226 F.2d 661 (9th Cir. 1955).

In General.

Party can condemn right to use portion of system of another, if necessary to convey water appropriated by him to land upon which it is to be used and he can also mix waters appropriated by him with those of others in natural watercourse. Berg v. Twin Falls Canal Co., 36 Idaho 62, 213 P. 694 (1922).

Water exchanges are invalid only if they clearly infringe on the rights of other water users. Almo Water Co. v. Darrington, 95 Idaho 16, 501 P.2d 700 (1972).

Injury to Channel.

Water appropriator using natural channel for conveyance of water was responsible for any injury resulting from negligent or unlawful use of such channel. Blaine County Inv. Co. v. Mays, 49 Idaho 766, 291 P. 1055 (1930).

Interruption of Flow.

By virtue of prior appropriation of waters of nonnavigable stream, claimants had right to quantity of water originally appropriated, and, if such flow was interrupted by dam, they had right to cut such dam to extent of obtaining their ordinary flow. Carey Lake Reservoir Co. v. Strunk, 39 Idaho 332, 227 P. 591 (1924).

Where defendant built a series of dams that increased the flow of a river to such extent that plaintiff’s access to his farm land, which was across the river from his place of residence making it necessary for plaintiff to ford the river in order to reach his farm land, was obstructed and plaintiff sought to recover damages on the theory that the dams constituted a nuisance, court held that, by statute, defendant and other appropriators of water for lawful purposes had right to use channel of natural streams for carrying stored water or water diverted from other streams. Johnson v. Utah Power & Light Co., 215 F.2d 814 (9th Cir. 1954).

Use of Natural Channel.

The current of a river cannot be appropriated by a riparian proprietor in Idaho, even assuming the possible persistence in that state of the doctrine of riparian rights, in view of statutes declaring the right of appropriators of water for irrigation or other lawful purpose to use the channel of natural streams for carrying stored water or water diverted from other streams. Johnson v. Utah Power & Light Co., 215 F.2d 814 (9th Cir. 1954).

The use of the natural channel of a stream to carry water not discharged by one pumping unit to another pumping unit did not constitute appropriation of the water at two points of diversion. Keller v. Magic Water Co., 92 Idaho 276, 441 P.2d 725 (1968).

Cited

Schodde v. Twin Falls Land & Water Co., 161 F. 43 (9th Cir. 1908); Rabido v. Furey, 33 Idaho 56, 190 P. 73 (1920).

RESEARCH REFERENCES

Am. Jur. 2d.

§ 42-106. Priority.

As between appropriators, the first in time is first in right.

History.

R.S., § 3159; 1899, p. 380, § 4; reen. R.C. & C.L., § 3245; C.S., § 5561; I.C.A.,§ 41-106.

STATUTORY NOTES

Cross References.

Priority between persons who have settled on land receiving water for agricultural purposes under a sale, rental or distribution, is subject to reasonable limitations as to the quantity of water used and the time of use, Idaho Const., Art. XV, § 5.

Right of priority and preferences as between domestic, irrigation, and mining uses, Idaho Const., Art. XV, § 3.

CASE NOTES

Appropriation by Drainage District.

Drainage district, by constructing drain which destroyed drain of prior appropriator of waste and seepage waters, did not thereby destroy his right to such waters. Sebern v. Moore, 44 Idaho 410, 258 P. 176 (1927).

Completion of Appropriation.

Contravention of Constitutional Provisions.

One who initiates right on state property, subsequent to existing right, does so subject to such existing right, and legislation, substituting procedure or time for perfection of original right, does not necessarily contravene any constitutional provisions. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Date of Priority.

When two persons as partners appropriated water sufficient to irrigate 480 acres of land, owned by them as tenants in common, in 1872, and actually irrigated 200 acres of land until 1886, when they severed their interests, right of each to his respective share of water appropriated by them jointly dates from 1872. Hall v. Blackman, 8 Idaho 272, 68 P. 19 (1902).

Water right acquired dated from time when water was actually delivered upon the ground for the use of which it was diverted, and the priority thereby acquired was not broken by a subsequent sale of the claim, ditch and water right, and transfer of possession to vendee. Brown v. Newell, 12 Idaho 166, 85 P. 385 (1906).

Date of application of water to beneficial use, and not date of commencement of construction of diversion works, determined priority where right was dependent upon appropriation and not upon application for permit. Rabido v. Furey, 33 Idaho 56, 190 P. 73 (1920).

Decree Establishing Priority.

Where priority of appropriation, amount of water appropriated and beneficial use thereof have been established, court, in its decree establishing such facts, cannot go further and dictate manner in which appropriator shall use the water, so long as it is adapted to a beneficial purpose. McGinness v. Stanfield, 6 Idaho 372, 55 P. 1020 (1898).

Diversion by Subsequent Appropriator.

The first appropriator of water has the first right thereto, and clear and convincing proof must be given to show that such prior appropriator will not be injured or affected by the diversion made by a subsequent appropriator. Silkey v. Tiegs, 54 Idaho 126, 28 P.2d 1037 (1934).

Finding of Priority.

In action to quiet title to water appropriated from public stream, where issue joined was one of priority, court needed to find actual appropriation made by each appropriator, giving time appropriation was made and quantity of water appropriated to beneficial use by each appropriator. Lee v. Hanford, 21 Idaho 327, 121 P. 558 (1912).

Grant of Vested Rights or Appropriation Permit.

State engineer (director of department of water resources) had no right, power or authority to interfere with vested rights or to grant a permit for appropriation and diversion of water of stream, which had already been diverted and applied to a beneficial use. Lockwood v. Freeman, 15 Idaho 395, 98 P. 295 (1908); Nielson v. Parker, 19 Idaho 727, 115 P. 488 (1911). An appropriator, whose right is based upon a valid, although unadjudicated, constitutional method of appropriation, retains a senior claim in relation to a person holding a later issued permit. R.T. Nahas Co. v. Hulet, 114 Idaho 23, 752 P.2d 625 (Ct. App. 1988).

Interstate Streams.

Right obtained by appropriation of water from stream in one state for use on lands in another state is superior to later appropriation in former state for use in former state. Weiland v. Pioneer Irrigation Co., 259 U.S. 498, 42 S. Ct. 568, 66 L. Ed. 1027 (1922).

Manner of Appropriation.

Whether party obtains any right to water by his attempted appropriation depends upon whether water was subject to appropriation at that place, and on manner in which he attempted to appropriate it. Rabido v. Furey, 33 Idaho 56, 190 P. 73 (1920).

Nature of Right.

One who first appropriated all the waters of creek, and since appropriation continually used same for purpose of irrigating his lands, was entitled to all of said waters, to the extent of the capacity of his ditches, necessary to the proper irrigation of his lands, as against subsequent locators. Hillman v. Hardwick, 3 Idaho 255, 28 P. 438 (1891) (see also, Nordick v. Sorensen, 81 Idaho 117, 338 P.2d 776 (1959)); Village of Peck v. Denison, 92 Idaho 747, 450 P.2d 310 (1969).

The basic law of water rights in Idaho, that first in time is first in right, creates a vested right, protected by the constitution and by this section. Board of Dirs. v. Jorgensen, 64 Idaho 538, 136 P.2d 461 (1943).

It is the unquestioned rule in Idaho that priority of appropriation gives the better right between those using water; and as between appropriators, the first in time is the first in right. Beecher v. Cassia Creek Irrigation Co., 66 Idaho 1, 154 P.2d 507 (1944).

Priorities.

First appropriation of water for useful or beneficial purposes gives prior right thereto, and right once vested will be protected and upheld unless abandoned. Malad Valley Irrigation Co. v. Campbell, 2 Idaho 411, 18 P. 52 (1888); Geertson v. Barrack, 3 Idaho 344, 29 P. 42 (1892); Dunniway v. Lawson, 6 Idaho 28, 51 P. 1032 (1898).

Doctrine of priority must be applied although its application may be harsh and unjust in the particular case. Kirk v. Bartholomew, 3 Idaho 367, 29 P. 40 (1892).

Right of prior appropriator of water to use of same to extent of his appropriation is not defeated by his having, through mistake, used a portion of water on land belonging to another. Mahoney v. Neiswanger, 6 Idaho 750, 59 P. 561 (1899).

Each junior appropriator is entitled to divert water only when the rights of previous appropriators have been satisfied. R.T. Nahas Co. v. Hulet, 114 Idaho 23, 752 P.2d 625 (Ct. App. 1988).

Protection of Right.

Where prior appropriation and right to use of water was established, appropriator was entitled to have sufficient unappropriated waters flow down to his point of diversion to supply his right, and injunction against interference therewith was proper protective relief. Moe v. Harger, 10 Idaho 302, 77 P. 645 (1904). Plaintiff, who had prior decreed rights to water was entitled to recover damages from the defendants for loss or damage to plaintiff’s crops proximately caused by acts of defendants, which deprived plaintiff of the water decreed to his land, and to the use of which he was entitled. Follett v. Taylor Bros., 77 Idaho 416, 294 P.2d 1088 (1956).

Where, under his license and certificate of water right, plaintiff was entitled to year round unobstructed flow of creek for irrigation and domestic purposes up to 1.44 cubic feet per second, and other plaintiffs owned right to have the water proceed through their field by diversion ditch, plaintiffs were entitled to have the water flow uninterrupted any time it would reach their land. Ward v. Kidd, 87 Idaho 216, 392 P.2d 183 (1964).

Riparian Rights Repudiated.

Prior appropriator of water has right to use thereof which is superior to claim of riparian proprietor not based upon appropriation but on doctrine of riparian rights. Drake v. Earhart, 2 Idaho 750, 23 P. 541 (1890).

Springs As Public Waters.

It is well settled that the waters of natural springs, which form a natural stream or streams flowing off the premises on which they arise, are public waters subject to appropriation, diversion and application to a beneficial use. Maher v. Gentry, 67 Idaho 559, 186 P.2d 870 (1947).

Subterranean Waters.

First appropriator of subterranean waters is first in right. Bower v. Moorman, 27 Idaho 162, 147 P. 496 (1915).

Cited

Brose v. Board of Dirs., 24 Idaho 116, 132 P. 799 (1913); Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945); Stevenson v. Steele, 93 Idaho 4, 453 P.2d 819 (1969); Crow v. Carlson, 107 Idaho 461, 690 P.2d 916 (1984).

OPINIONS OF ATTORNEY GENERAL

Lava Hot Springs.

Since Idaho Const., Art. XV, § 3 and §§ 42-101, 42-103, 42-104 and 42-106, specifies the law of prior appropriation as the method to establish the right to use water in Idaho, absent a clear statutory expression by the legislature to create an exception to the appropriation statutes, all rights to the use of water in Idaho must be acquired by appropriation and the language in §§ 67-4401 and 67-4403 is not a clear expression that the legislature intended to create an exception from the appropriation process for the waters at Lava Hot Springs as the most reasonable interpretation of this language is that the foundation’s jurisdiction and control over waters at Lava Hot Springs refers to those waters that have already been appropriated or that will be appropriated in the future. OAG 97-1. RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — The Elusive Implied Water Right for Fish: Do Off-Reservation Instream Water Rights Exist to Support Indian Treaty Fishing Rights, Comment. 48 Idaho L. Rev. 515 (2012).

Adaptive Resource Management: Using Idaho as an Example of How States Can Implement Effective Policies, Comment. 50 Idaho L. Rev. 293 (2014).

C.J.S.

§ 42-107. Priority — Waste, seepage, and spring waters.

All ditches now constructed or which may hereafter be constructed for the purpose of utilizing seepage, waste or spring water of the state, shall be governed by the same laws relating to priority of right as those ditches, canals and conduits constructed for the purpose of utilizing the waters of running streams.

History.

1899, p. 380, § 23; reen. R.C. & C.L., § 3246; C.S., § 5562; I.C.A.,§ 41-107.

CASE NOTES

Abandonment of Beneficial Use.

It is only where there is an abandonment of five years of beneficial use by the appropriator that water may be considered as unappropriated water of the state. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Appropriation of Waste or Seepage Water.

Seepage water from canal having its source in watershed other than that in which seepage occurs was subject to appropriation under this section. Breyer v. Baker, 31 Idaho 387, 171 P. 1135 (1918); Sebern v. Moore, 44 Idaho 410, 258 P. 176 (1927).

Water right may not be initiated by diverting water from ditch of another against his will and without his consent. Rabido v. Furey, 33 Idaho 56, 190 P. 73 (1920).

Waste or seepage water of which there had been no appropriation prior to construction of drain in which such water collected was in the possession of owner of drain and was therefore not subject to appropriation. Sebern v. Moore, 44 Idaho 410, 258 P. 176 (1927).

Cessation of Waste.

Rights of appropriator of waste or seepage water were subject to the right of owner to cease wasting it, or in good faith to change place or manner of wasting it, or to recapture it, so long as he applied it to a beneficial use. Sebern v. Moore, 44 Idaho 410, 258 P. 176 (1927); Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Dedication of Waste Water.

If waste water is furnished by canal company to applicant, under a sale or a rental, user thereof can maintain action against canal company only to compel it to furnish him with such waste water, if any, and he cannot compel canal company to furnish perpetual supply of water, such as is required to be furnished to an original appropriator. Gerber v. Nampa & Meridian Irrigation Dist., 16 Idaho 22, 100 P. 80 (1908).

Grounds for Injunction Against Diversion.

To enjoin diversion and change in the place of use of water, the injury, if any, must be confined to a water right. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Riparian Owners.

Fact that there had been a conversion by lower riparian owner of seepage water of upper riparian owner would not of itself entitle former to injunctive relief restraining latter from cessation of waste or to beneficial use of it. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Suit for Diversion.

A suit for damages for diversion of return flow of water after 40 years, such water being decreed to defendant’s land, the seepage of which had been used by plaintiff and his predecessors, without alleging an abandonment, failed to state a cause of action. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Utilization of Seepage.

Construction of ditches to utilize seepage or waste water rightfully under control of another was not authorized by this section. United States v. Haga, 276 F. 41 (D. Idaho 1921).

Water in Canals.

There is a priority among consumers from canal analogous to that which exists among appropriators from a natural stream, and rights of later applicants for water are subordinate to those of prior consumers, which, when exercised in full, exhaust the carrying capacity of the canal. Gerber v. Nampa & Meridian Irrigation Dist., 19 Idaho 765, 116 P. 104 (1911).

RESEARCH REFERENCES

Am. Jur. 2d.

§ 42-108. Change in point of diversion, place of use, period of use, or nature of use — Application of act.

The person entitled to the use of water or owning any land to which water has been made appurtenant either by a decree of the court or under the provisions of the constitution and statutes of this state, may change the point of diversion, period of use, or nature of use, and/or may voluntarily abandon the use of such water in whole or in part on the land which is receiving the benefit of the same and transfer the same to other lands, if the water rights of others are not injured by such change in point of diversion, place of use, period of use, or nature of use, provided; if the right to the use of such water, or the use of the diversion works or irrigation system is represented by shares of stock in a corporation or if such works or system is owned and/or managed by an irrigation district, no change in the point of diversion, place of use, period of use, or nature of use of such water shall be made or allowed without the consent of such corporation or irrigation district. Any permanent or temporary change in period or nature of use in or out-of-state for a quantity greater than fifty (50) cfs or for a storage volume greater than five thousand (5,000) acre-feet shall require the approval of the legislature, except that any temporary change within the state of Idaho for a period of less than three (3) years may be approved by the director without legislative approval.

Any person desiring to make such change of point of diversion, place of use, period of use, or nature of use of water shall make application for change with the department of water resources under the provisions of section 42-222, Idaho Code. After the effective date of this act, no person shall be authorized to change the period of use or nature of use, point of diversion or place of use of water unless he has first applied for and received approval of the department of water resources under the provisions of section 42-222, Idaho Code.

History.

R.S., § 3157; 1899, p. 380, § 11; reen. R.C. & C.L., § 3247; C.S., § 5563; I.C.A.,§ 41-108; am. 1943, ch. 53, § 1, p. 101; am. 1947, ch. 80, § 1, p. 130; am. 1969, ch. 303, § 1, p. 905; am. 1981, ch. 147, § 1, p. 253; am. 1986, ch. 313, § 1, p. 763.

STATUTORY NOTES

Compiler’s Notes.

The phrase “the effective date of this act” refers to the effective date of S.L. 1969, chapter 303, which was effective May 26, 1969.

Effective Dates.

Section 2 of S.L. 1947, ch. 80 declared an emergency. Approved February 25, 1947.

Section 4 of S.L. 1981, ch. 147 declared an emergency. Approved March 27, 1981.

CASE NOTES

Abandonment.

Such change does not work a forfeiture or is not abandonment of such right. Joyce v. Rubin, 23 Idaho 296, 130 P. 793 (1913) (See also, Joyce v. Murphy Land & Irrigation Co., 35 Idaho 549, 208 P. 241 (1922)).

Water right was not forfeited though abandoned for over five years, where applicant for transfer resumed use of water prior to filing petition for transfer. In re Boyer, 73 Idaho 152, 248 P.2d 540 (1952).

Application of 1947 Amendment.

1947 amendment to this section requiring consent of irrigation district to transfer of water right, which did not take effect until February 25, 1947, did not apply to application for transfer filed on October 7, 1946. In re Boyer, 73 Idaho 152, 248 P.2d 540 (1952).

Approval of Department.

Change made without approval of state engineer (department of water resources) did not forfeit the water right. Joyce v. Rubin, 23 Idaho 296, 130 P. 793 (1913).

An appropriator who relies upon statutory appropriation through state engineer’s (department of water resources) permit, must apply to state engineer (department) to change place of use. Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073 (1915).

Change Causing Injury.

Change cannot be made if others are injured thereby. Walker v. McGinness, 8 Idaho 540, 69 P. 1003 (1902); Hard v. Boise City Irrigation & Land Co., 9 Idaho 589, 76 P. 331 (1904); Hill v. Standard Mining Co., 12 Idaho 223, 85 P. 907 (1906); Montpelier Milling Co. v. Montpelier, 19 Idaho 212, 113 P. 741 (1911); Bennett v. Nourse, 22 Idaho 249, 125 P. 1038 (1912); Hall v. Blackman, 22 Idaho 539, 126 P. 1045 (1912); Hall v. Blackman, 22 Idaho 556, 126 P. 1047 (1912); Basinger v. Taylor, 30 Idaho 289, 164 P. 522 (1917). Prior appropriator of waters of stream will not be permitted to change his point of diversion, if such change will injuriously affect rights of subsequent appropriators as they existed at time such subsequent appropriations were made. Crockett v. Jones, 42 Idaho 652, 249 P. 483 (1926).

No change in point of use of water will be permitted without limitation, if enlarged use in time or amount burdens the stream or decreases volume to injury of others. Beecher v. Cassia Creek Irrigation Co., 66 Idaho 1, 154 P.2d 507 (1944).

Change in Nature of Use.

The director of the department of water resources has not been granted the authority to approve an application for a requested change in the nature of the use of water. Beker Indus., Inc. v. Georgetown Irrigation Dist., 101 Idaho 187, 610 P.2d 546 (1980).

City could not change to municipal purposes a water right licensed for irrigation purposes without an administrative transfer proceeding under this section. City of Pocatello v. State (In re SRBA Case No. 39576), 152 Idaho 830, 275 P.3d 845 (2012).

Constitutionality.

This section affords the water user due process of law. In re Johnston, 69 Idaho 139, 204 P.2d 434 (1949).

This section does not constitute a delegation of legislative power to a mutual water users’ association and does not make an arbitrary discrimination between ordinary water corporations and Carey Act corporations, and the reason for Carey Act corporations not being included in§ 42-108 was that the transfer of Carey Act water rights was already covered by chapter 25, title 42 of the Idaho Code. In re Johnston, 69 Idaho 139, 204 P.2d 434 (1949).

Dedication.

The wrongful diversion and use of water by appellant without the knowledge and consent of respondent, a mutual irrigation corporation, could not be made the basis of the dedication provided for in Idaho Const., Art. XV, § 4. In re Johnston, 69 Idaho 139, 204 P.2d 434 (1949).

Extent of Right.

Right to change place of diversion includes cases in which use of water amounts to its absorption, or is such as to imply notice to subsequent appropriators that such change may reasonably be expected, but excludes appropriations to be used at a specific place for purpose of operating machinery and other works, where water is used and then returned to stream practically undiminished in quantity, when such change will damage a subsequent appropriator. Last Chance Mining Co. v. Bunker Hill & S. Mining & Concentrating Co., 49 F. 430 (C.C.D. Idaho 1892).

A water right cannot be resumed when the facts clearly establish that water was not applied to the land of which it was appurtenant. McCray v. Rosenkrance, 135 Idaho 509, 20 P.3d 693 (2001).

Federal Decree Fixing Priorities.

Jurisdiction of District Court.

The court should have followed the federal decree adjudicating interrelated water rights and fixing the priorities as of the same date as in the federal decree to avoid confusion in administering the water rights where a change in points of diversion was sought. Beecher v. Cassia Creek Irrigation Co., 66 Idaho 1, 154 P.2d 507 (1944). Jurisdiction of District Court.

District court acquired full equitable jurisdiction on appeal from reclamation commission order and had full authority to impose reasonable conditions to avoid injury. Beecher v. Cassia Creek Irrigation Co., 66 Idaho 1, 154 P.2d 507 (1944).

Proof.

Challenge by shareholders in water company to change of diversion point effected by two holders of water rights pursuant to valid water exchange was without basis absent a showing of actual harm to the shareholders. Almo Water Co. v. Darrington, 95 Idaho 16, 501 P.2d 700 (1972).

Right of Diversion.

Person claiming priority of right under judicial decrees had the statutory right to change his point of diversion provided that the rights of others were not injured, and such change did not work a forfeiture or an abandonment of such right. Graham v. Leek, 65 Idaho 279, 144 P.2d 475 (1944).

Rights of Subsequent Appropriator.

Subsequent appropriator had vested right to continuation of conditions as they existed when his appropriation was made. Crockett v. Jones, 42 Idaho 652, 249 P. 483 (1926).

Subterranean Waters.

Where a subsequent appropriator of subterranean water operated pumps at a lower level than prior appropriators, and thereby caused a shortage, the expense of lowering the prior appropriators’ pumps so they received the same amount of water as before must be borne by the subsequent appropriators. Noh v. Stoner, 53 Idaho 651, 26 P.2d 1112 (1933).

Transfer of Rights.

Users of water from ditch or canal acquire property right therein which they may transfer to other lands under such ditch or canal, or may sell and transfer to purchaser who may also transfer the same to other lands under the ditch and canal, so long as the change does not interfere with the rights of others. Hard v. Boise City Irrigation & Land Co., 9 Idaho 589, 76 P. 331 (1904).

Nonconsent of ditch company and irrigation district did not bar transfer of water appropriation right where ditch company and irrigation district was unable to prove that the water appropriation right was represented by stock. In re Boyer, 73 Idaho 152, 248 P.2d 540 (1952).

Cited

Schodde v. Twin Falls Land & Water Co., 161 F. 43 (9th Cir. 1908); Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977); Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

Am. Jur. 2d.

C.J.S.

§ 42-108A. Leasing of water for hydroelectric generation — Exception to requirement of application to change nature of use.

Any person having the right to the beneficial use of a water right may lease the water to a private or public utility doing business in the state of Idaho for hydroelectric generation purposes within the state of Idaho for a period not to exceed one (1) year on application to the department of water resources indicating the name of the owner of the right, the lessor, the lessee, the amount of water leased, the duration of the lease, and the proposed place of use and point of diversion. Such a lease or leases shall not constitute a change in the nature of use of such water nor shall the same constitute an abandonment or forfeiture or any other diminution of such water right.

History.

I.C.,§ 42-108A, as added by 1981, ch. 267, § 1, p. 566.

§ 42-108B. Leasing of water under established rights — Notice — Appeal.

Any person, entitled to the use of water whether represented by a license issued by the department of water resources, or by decree of the court, who shall desire to lease the water pursuant to section 42-108A, Idaho Code, shall make application to the department of water resources. Such application shall be upon forms furnished by the department and shall describe the right licensed, claimed or decreed which is to be leased. Upon receipt of said application, an application filing fee of thirty dollars ($30.00) and a publication fee of fifty dollars ($50.00), it shall be the duty of the director of the department of water resources to examine same and if otherwise proper, to cause notice of the proposed leasing of water and setting forth the hearing date at which protests will be heard, to be published once a week for two (2) consecutive weeks in a newspaper published and of general circulation within the county where the water is diverted, if there is such a paper, otherwise in a newspaper of general circulation within the county. Such notice shall advise that anyone who desires to protest the proposed leasing of water and who has a superior right to use the water and who may suffer pecuniary loss shall file notice of protest with the department within five (5) days of the last date of publication. The hearing date set by the director of the department of water resources shall be held not sooner than ten (10) nor later than fifteen (15) days after the last date of publication. Upon receipt of any protest, it shall be the duty of the director of the department of water resources to investigate the same and to conduct a hearing thereon. He shall also advise the watermaster of the district in which such water is used of the proposed lease.

The director of the department of water resources shall examine all of the evidence and available information and, provided no other water rights senior or junior to the water to be leased are injured thereby, may reject and refuse approval for, or may partially approve for less quantity of water, or may approve upon conditions any proposed lease of water where the proposed use is such that it will reduce the quantity of water available under other existing water rights, the water supply involved is insufficient for the purpose for which it is sought, the lease would cause the use of water to be enlarged beyond that authorized under the water right to be leased, the lease would be contrary to any local rental pool procedure as authorized under section 42-1765, Idaho Code, the lease will conflict with the local public interest as defined in section 42-202B, Idaho Code, or the lease will adversely affect the local economy of the watershed or local area within which the source of water for the proposed use originates, in the case where the place of use is outside of the watershed or local area where the source of water originates. A copy of the approved application for leasing of water shall be returned to the applicant, and he shall be authorized upon receipt thereof to lease the water pursuant to section 42-108A, Idaho Code. In the event the director of the department of water resources determines that a proposed change shall not be approved as provided in this section, he shall deny same and forward a notice of such action to the applicant by certified mail, which decision shall be subject to review pursuant to section 42-1701A, Idaho Code. All fees received by the department of water resources under the provisions of this section shall be submitted to the state treasurer for deposit in the water administration fund [account].

History.

I.C.,§ 42-108B, as added by 1981, ch. 267, § 2, p. 566; am. 2011, ch. 243, § 1, p. 655.

STATUTORY NOTES

Cross References.

Department of water resources,§ 42-1701 et seq.

State treasurer,§ 67-1201 et seq.

Amendments.

The 2011 amendment, by ch. 243, in the first sentence in the second paragraph, deleted “shall approve, in whole or in part, or upon conditions” following “available information and” and added the language beginning “may reject and refuse approval for, or may partially approve for less quantity of water” through to the end of the sentence.

Compiler’s Notes.

The bracketed insertion at the end of the section was added by the compiler to correct the name of the referenced account. See§ 42-238a.

Effective Dates.

Section 2 of S.L. 2011, ch. 243 declared an emergency. Approved April 7, 2011.

§ 42-109. Change in course of ditch — When prohibited.

Whenever any ditch or canal has been constructed for the purpose of conveying water and selling the same for irrigating purposes, it is unlawful for the owner or owners of said ditch or canal to change the line of said ditch or canal so as to prevent or interfere with the use of water from said ditch or canal, by any one who, prior to the proposed change, had used water for irrigating purposes from said ditch or canal.

History.

R.S., part of § 3189; reen. R.C. & C.L., § 3248; C.S., § 5564; I.C.A.,§ 41-109.

§ 42-110. Right to divert water.

The proprietors of any ditch, canal or conduit, or other works for the diversion and carriage of water, whose right relative to the quantity of water they shall be entitled to divert by means of such works shall have been established by any valid claim, permit, license or decree of court, shall be entitled to such quantity measured at the point of diversion, subject, however, to all prior rights. Water diverted from its source pursuant to a water right is the property of the appropriator while it is lawfully diverted, captured, conveyed, used, or otherwise physically controlled by the appropriator.

History.

1899, p. 380, § 32; reen. R.C. & C.L., § 3249; C.S., § 5565; I.C.A.,§ 41-110; am. 2004, ch. 191, § 1, p. 601.

STATUTORY NOTES

Effective Dates.

Section 4 of S.L. 2004, ch. 191 declared an emergency. Approved March 23, 2004.

CASE NOTES

Cited

State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039 (1911).

§ 42-111. Domestic purposes defined.

For purposes of sections 42-221, 42-227, 42-230, 42-235, 42-237a, 42-242, 42-243 and 42-1401A, Idaho Code, the phrase “domestic purposes” or “domestic uses” means:
1. The use of water for homes, organization camps, public campgrounds, livestock and for any other purpose in connection therewith, including irrigation of up to one-half (½) acre of land, if the total use is not in excess of thirteen thousand (13,000) gallons per day, or
2. Any other uses, if the total use does not exceed a diversion rate of four one-hundredths (0.04) cubic feet per second and a diversion volume of twenty-five hundred (2,500) gallons per day.
For purposes of the sections listed in subsection (1) of this section, domestic purposes or domestic uses shall not include water for multiple ownership subdivisions, mobile home parks, or commercial or business establishments, unless the use meets the diversion rate and volume limitations set forth in subsection (1)(b) of this section.
Multiple water rights for domestic uses or domestic purposes, as defined in this section, shall not be established or exercised in a manner to satisfy a single combined water use or purpose that would not itself come within the definition of a domestic use or purpose under this section. The purpose of this limitation is to prohibit the diversion and use of water, under a combination of domestic purposes or domestic uses as defined in this section, to provide a supply of water for a use that does not meet the exemption of section 42-227, Idaho Code, and is required to comply with the mandatory application and permit process for developing a right to the use of water pursuant to chapter 2, title 42, Idaho Code.

History.

1899, p. 380, part of § 12; reen. R.C. & C.L., § 3250; C.S., § 5566; I.C.A.,§ 41-111; am. 1990, ch. 319, § 1, p. 870; am. 1995, ch. 233, § 1, p. 790.

STATUTORY NOTES

Cross References.

Definition in underground water law,§ 42-230.

Domestic purposes not to include land irrigation,§ 42-914.

Effective Dates.

Section 2 of S.L. 1995, ch. 233 declared an emergency. Approved March 20, 1995.

CASE NOTES

Heating of Dwelling-houses.

Heating of dwelling-houses comes within the meaning of “domestic purposes.” Public Utils. Comm’n v. Natatorium Co., 36 Idaho 287, 211 P. 533 (1922).

Cited Village of Peck v. Denison, 92 Idaho 747, 450 P.2d 310 (1969); Stevenson v. Steele, 93 Idaho 4, 453 P.2d 819 (1969). RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

§ 42-112. Completion defined.

By completion is meant conducting the waters to the place of intended use.

History.

R.S., § 3162; 1899, p. 380, § 7; reen. R.C. & C.L., § 3251; C.S., § 5567; I.C.A.,§ 41-112.

CASE NOTES

Cited

Schodde v. Twin Falls Land & Water Co., 161 F. 43 (9th Cir. 1908).

§ 42-113. In-stream and other water use for livestock.

A permit may be issued, but shall not be required for appropriation of water for the in-stream watering of livestock. In the consideration of applications for permits to appropriate water for other purposes, the director of the department of water resources shall impose such reasonable conditions as are necessary to protect prior downstream water rights for in-stream livestock use, and in the administration of the water rights on any stream, the director, and the district court where applicable, shall recognize and protect water rights for in-stream livestock use, according to priority, as they do water rights for other purposes. As used in this section, the phrase “in-stream watering of livestock” means the drinking of water by livestock directly from a natural stream, without the use of any constructed physical diversion works.
For rights to the use of water for in-stream or out-of-stream livestock purposes, associated with grazing on federally owned or managed land, established under the diversion and application to beneficial use method of appropriation:
1. The priority date shall be the first date that water historically was used for livestock watering associated with grazing on the land, subject to the provisions of section 42-222(2), Idaho Code; and
2. The water right shall be an appurtenance to the base property. When a federal grazing permit is transferred or otherwise conveyed to a new owner, the associated stockwater rights may also be conveyed and, upon approval of an application for transfer, shall become appurtenant to the new owner’s base property.
This subsection is established to promote the watering of livestock away from streams and riparian areas, but not to require fencing of livestock away from streams and riparian areas.
1. Any person having an established water right or appropriating water for in-stream watering of livestock pursuant to subsection (1) of this section may, in addition to the in-stream use, divert the water for livestock use away from the stream or riparian area. The diversion may occur only if the following conditions are met:
  1. The water is diverted from a surface water source to a trough or tank through an enclosed water delivery system;
  2. The water delivery system is equipped with an automatic shutoff or flow control mechanism or includes a means for returning unused water to the surface water source through an enclosed delivery system, and the system is designed and constructed to allow the rate of diversion to be measured;
  3. The diversion is from a surface water source to which the livestock would otherwise have access and the watering tank or trough is located on land from which the livestock would have access to the surface water source from which the diversion is made;
  4. The diversion of water out of the stream in this manner does not injure other water rights;
  5. The use of the water diverted is for watering livestock; and
  6. The bed and banks of the source shall not be altered as that term is defined in section 42-3802, Idaho Code, except that an inlet conduit may be placed into the source in a manner that does not require excavation or obstruction of the stream channel, unless additional work is approved by the director of the department of water resources.
2. The amount of water diverted for watering of livestock in accordance with this subsection shall not exceed thirteen thousand (13,000) gallons per day per diversion.
3. Before construction and use of a water diversion and delivery system as provided in this subsection, the person or other entity proposing to construct and use the system shall give notice to the director of the department of water resources. Separate notice for each diversion shall be provided on a form approved by the director and shall be accompanied by a twenty-five dollar ($25.00) fee for each notice filed. Filing of the notice as herein provided shall serve as a substitute for filing a notice of claim to a water right pursuant to section 42-243, Idaho Code. The director may provide notice to holders of water rights and others as the director deems appropriate.
4. Compliance with the provisions of this subsection is a substitute for the requirements for transfer proceedings in section 42-222, Idaho Code. In the administration of water diverted for livestock watering pursuant to this subsection, the director, and the district court where applicable, shall recognize and protect water rights for out-of-stream livestock watering use pursuant to this subsection as they would in-stream livestock watering use. The priority date for out-of-stream watering of livestock pursuant to this subsection shall be the first date that water historically was used for livestock watering and shall not be altered due to the diversion out-of-stream.
5. Any water right holder who determines that diversion or use of water under the provisions of this subsection is depriving the water right holder of water to which the water right holder is entitled may petition the director of the department of water resources to curtail the diversion or use of water for livestock purposes. Upon such petition, the director shall cause an investigation to be made and may hold hearings or gather information in other ways. If the director finds that an interference is occurring, the director may order curtailment of diversion or use of the water or may require the water diversion and delivery system to be modified to prevent injury to other water rights. Any person feeling aggrieved by an order of the director in response to a petition filed as herein provided shall be entitled to review as provided in section 42-1701A, Idaho Code.
No change in use of any water right used for watering of livestock, whether proposed under this section or section 42-222, Idaho Code, shall be made or allowed without the consent of the permittee in the federal grazing allotment, if any, in which the water right is used for the watering of livestock.

History.

I.C.,§ 42-113, as added by 1984, ch. 124, § 1, p. 299; am. 1998, ch. 344, § 1, p. 1095; am. 2000, ch. 255, § 1, p. 721; am. 2018, ch. 146, § 1, p. 303.

STATUTORY NOTES

Amendments.

Compiler’s Notes.

The 2018 amendment, by ch. 146, redesignated former subsection (2) as the introductory paragraph of subsection (2) and paragraph (2)(a) and added paragraph (2)(b). Compiler’s Notes.

Section 2 of S.L. 1984, ch. 124 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 3 of S.L. 1984, ch. 124 declared an emergency. Approved March 31, 1984.

Section 2 of S.L. 1998, ch. 344 declared an emergency. Approved March 25, 1998.

§ 42-114. Stock watering permit.

Any permit issued for the watering of domestic livestock shall be issued to the person or association of persons making application therefor and the watering of domestic livestock by the person or association of persons to whom the permit was issued shall be deemed a beneficial use of the water.

As used in this section, the “watering of domestic livestock” means the drinking of water by domestic livestock from a natural stream, ground water source or other source.

History.

I.C.,§ 42-114, as added by 1986, ch. 199, § 1, p. 498.

OPINIONS OF ATTORNEY GENERAL

Stock Watering.

This section does not prohibit the Idaho department of water resources from issuing a water right permit to a landowner for stock watering purposes, even though the landowner leases his land to another person for the grazing of stock; this section merely affirms that stock watering is a beneficial use of water and that any person may file an application for that use.OAG 88-6.

§ 42-115. Storage.

To ensure that new or proposed projects to store more than one thousand (1,000) acre feet of surface water do not interfere with the storage of water in existing on-stream storage reservoirs operated for storage and flood control purposes, the director of the department of water resources shall subordinate permits and licenses for projects to store more than one thousand (1,000) acre feet of surface water issued after the effective date of this section to the capture and retention of water in existing on-stream storage reservoirs during and following flood control operations until the date of allocation.

History.

I.C.,§ 42-115, as added by 2019, ch. 16, § 1, p. 18.

STATUTORY NOTES

Effective Dates.

Section 2 of S.L. 2019, ch. 16 declared an emergency. Approved February 13, 2019.

Chapter 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY

Sec.

§ 42-201. Water rights acquired under chapter — Illegal diversion and application of water — Uses for which water right not required — Exclusive authority of department.

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.
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.
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:
1. 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;
2. 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
3. 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.
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.
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.

1903, p. 223, § 41; am. R.C. & C.L., § 3252; C.S., § 5568; I.C.A.,§ 41-201; am. 1971, ch. 177, § 2, p. 843; am. 1986, ch. 313, § 2, p. 763; am. 2000, ch. 291, § 1, p. 1007; am. 2006, ch. 256, § 1, p. 793; am. 2008, ch. 320, § 1, p. 887; am. 2012, ch. 218, § 1, p. 596; am. 2016, ch. 139, § 1, p. 405; am. 2019, ch. 211, § 1, p. 641; am. 2020, ch. 6, § 1, p. 6.

STATUTORY NOTES

Cross References.

Director of department of water resources,§ 42-1801 et seq.

Amendments.

The 2006 amendment, by ch. 256, added subsection (4).

The 2008 amendment, by ch. 320, rewrote the section catchline, which formerly read: “Water rights acquired under chapter-Illegal application of water”; subdivided subsection (3) into an introductory paragraph and paragraph (a), and in the introductory paragraph, inserted “diverted from a natural watercourse and”; added paragraph (3)(b) and subsections (4) through (6), and redesignated former subsection (4) as subsection (7).

The 2012 amendment by ch. 218, added subsection (8).

The 2016 amendment, by ch. 139, added subsection (9).

The 2019 amendment, by ch. 211, substituted “or section 42-229, Idaho Code, water may be diverted” for “water may be diverted from a natural watercourse” in the introductory paragraph of subsection (3).

The 2020 amendment, by ch. 6, added paragraph (3)(c).

Compiler’s Notes.

The phrase “the effective date of this act” near the end of subsection (1) refers to the effective date of S.L. 1971, chapter 177, which was effective May 18, 1971.

CASE NOTES

Construction.

It was never intended that this statute should authorize the taking and diversion by one man of the property of another. King v. Chamberlin, 20 Idaho 504, 118 P. 1099 (1911).

Evidence of Amount Diverted.

Claimant seeking decree to confirm his right to the use of water by appropriation must present to court sufficient evidence to enable it to make definite and certain findings as to amount of water actually diverted and applied, as well as amount necessary for beneficial use claimed. Reno v. Richards, 32 Idaho 1, 178 P. 81 (1918).

Federal Law.

The federal power act does preempt some state laws relating to the building of dams on navigable streams and it particularly preempts those state laws which require a state license as a predicate for building a dam; however, state law regarding proprietary rights in water is expressly saved. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

There is nothing in the law of Idaho which precludes a person from voluntarily obtaining less than the full panoply of rights associated with the ownership of real property and a voluntary subordination agreement is not in violation of Idaho’s water law. Therefore there was no conflict between state water law and the language of the subordination clause inserted in the licenses issued by federal power commission to power company in connection with the Hells Canyon hydroelectric project. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

Methods of Appropriation.

One may obtain prior right to use of water of stream where he actually diverts and applies the same to a beneficial use, although he may never have applied to state engineer for permit to do so. Neilson v. Parker, 19 Idaho 727, 115 P. 488 (1911); Youngs v. Regan, 20 Idaho 275, 118 P. 499 (1911); Furey v. Taylor, 22 Idaho 605, 127 P. 676 (1912); Crane Falls Power & Irrigation Co. v. Snake River Irrigation Co., 24 Idaho 63, 133 P. 655 (1913); Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073 (1915); Basinger v. Taylor, 30 Idaho 289, 164 P. 522 (1917); Silkey v. Tiegs, 51 Idaho 344, 5 P.2d 1049 (1931).

Water may be appropriated without compliance with the steps provided by the statute; but in such case it requires actual application to a beneficial use to complete the appropriation and the right is limited to the amount so applied, with date of priority determined by such application to beneficial use. Reno v. Richards, 32 Idaho 1, 178 P. 81 (1918).

Protection of Right.

Trial court properly determined that United States had not asserted its water rights under the constitutional method of appropriation because, under that method, the United States, as the claimant, was required to put the water to beneficial use, which it had failed to do. On the other hand, a livestock company had established its water rights because the company’s predecessors had put the water to beneficial use by watering their stock. Joyce Livestock Co. v. United States (In re SRBA Case No. 39576), 144 Idaho 1, 156 P.3d 502, cert. denied, 552 U.S. 990, 128 S. Ct. 487, 169 L. Ed. 2d 339 (2007). Protection of Right.

Public Use.

Use of land for development of power from streams for aid of farming was a public use for which condemnation would lie. Bassett v. Swenson, 51 Idaho 256, 5 P.2d 722 (1931).

Relation to Other Law.

Section 42-1426 provides for a waiver of the mandatory permit requirements of this section and/or§ 42-229 and a decree of a new water right for an enlarged use of the original water right. Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996).

Riparian Owners Subject to Law.

Riparian owners who desire to appropriate public waters for beneficial use must comply with provisions of the law same as those who are not riparian owners. Idaho Power & Transp. Co. v. Stephenson, 16 Idaho 418, 101 P. 821 (1909).

Tenant-held License.

District court properly issued a partial decree listing the tenants as the owner of a water-right license, because the record established that the original and current tenants diverted and beneficially used water under the subject water right and the license was clear and unambiguous, recognizing a bifurcation between the ownership of the land and ownership of the water right used on that land. McInturff v. Shippy (In re CSRBA Case No. 49576), 165 Idaho 489, 447 P.3d 937 (2019).

Validity.

The 1903 act is not a local and special law. Boise City Irrigation & Land Co. v. Stewart, 10 Idaho 38, 77 P. 25 (1904).

The subject matter of the 1903 act is within its title. Boise City Irrigation & Land Co. v. Stewart, 10 Idaho 38, 77 P. 25 (1904).

Enactment of this section was proper exercise of legislative power. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Water From Mine Portal.

Wrongful Appropriation.

Water emanating from mine portal falls clearly within the definition of public ground water which is subject to appropriation; the water is from an underground source which has been brought to the surface through the excavation of the mine. Branson v. Miracle, 107 Idaho 221, 687 P.2d 1348 (1984). Wrongful Appropriation.

One who diverted water and put it to a beneficial use by aid of a trespass, did not, pursuant to such trespass, acquire a water right. Bassett v. Swenson, 51 Idaho 256, 5 P.2d 722 (1931).

Cited

State, Dep’t of Parks v. Idaho Dep’t of Water Admin., 96 Idaho 440, 530 P.2d 924 (1974); Parke v. Bell, 97 Idaho 67, 539 P.2d 995 (1975); United States v. Black Canyon Irrigation Dist. (In re SRBA Case No. 39576), 163 Idaho 54, 408 P.3d 52 (2017).

OPINIONS OF ATTORNEY GENERAL

Local Regulation.

Because the legislature has authorized both the counties and the state to regulate confined animal feeding operations (CAFOs), and because these authorities overlap, it is unlikely that a court would conclude the state has completely occupied the field of CAFO regulation or that state law provides an exclusive regulatory program that preempts all local regulation.OAG 08-01.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

C.J.S.

§ 42-202. Application to appropriate water — Contents — Filing fees — Disposition of fees — Record of receipts.

For the purpose of regulating the use of the public waters and of establishing by direct means the priority right to such use, any person, association or corporation hereafter intending to acquire the right to the beneficial use of the waters of any natural streams, springs or seepage waters, lakes or ground water, or other public waters in the state of Idaho, shall, before commencing of the construction, enlargement or extension of the ditch, canal, well, or other distributing works, or performing any work in connection with said construction or proposed appropriation or the diversion of any waters into a natural channel, make an application to the department of water resources for a permit to make such appropriation. Provided however, if the use of the diversion works or irrigation system is represented by shares of stock in a corporation or if such works or system is owned or managed by an irrigation district, no such application may be approved by the director of the department of water resources without the consent of such corporation or irrigation district. Such application must set forth:
1. The name and post-office address of the applicant.
2. The source of the water supply.
3. The nature of the proposed use or uses and the period of the year during which water is to be used for such use or uses.
4. The location of the point of diversion and description of the proposed ditch, channel, well or other work and the amount of water to be diverted and used.
5. The time required for the completion of construction of such works and application of the water to the proposed use.
An application proposing an appropriation of water by a municipal provider for reasonably anticipated future needs shall be accompanied by sufficient information and documentation to establish that the applicant qualifies as a municipal provider and that the reasonably anticipated future needs, the service area and the planning horizon are consistent with the definitions and requirements specified in this chapter. The service area need not be described by legal description nor by description of every intended use in detail, but the area must be described with sufficient information to identify the general location where the water under the water right is to be used and the types and quantity of uses that generally will be made.
Whenever it is desired to appropriate and store flood or winterflow waters, the applicant shall specify in acre feet the quantity of such flood or winterflow waters which he intends to store, but for irrigation purposes he shall not claim more than five (5) acre feet of stored water per acre of land to be irrigated, nor, in the event of the filing of an application claiming both normal flow and flood water and winterflow water, shall the total amount of water claimed exceed the equivalent of a continuous flow during the irrigation season of more than one (1) cubic foot per second for each fifty (50) acres of land to be irrigated, or more than five (5) acre feet of stored water for each acre of land to be irrigated. (4) The application shall be accompanied by a plan and map of the proposed works for the diversion and application of the water to a beneficial use, showing the character, location and dimensions of the proposed reservoirs, dams, canals, ditches, pipelines, wells and all other works proposed to be used by them in the diversion of the water, and the area and location of the lands proposed to be irrigated, or location of place of other use.

(5) If the application involves more than twenty-five (25) cubic feet per second of water or the development of more than five hundred (500) theoretical horsepower, or impoundment of water in a reservoir with an active storage capacity in excess of ten thousand (10,000) acre feet, the applicant may be required by the director of the department of water resources to furnish a statement of the financial resources of the corporation, association, firm or person making the application, and the means by which the funds necessary to construct the proposed works are to be provided, and the estimated cost of construction; and if such application is made by a corporation, the amount of its capital stock, how much thereof has been actually paid in, and the names and places of residence of its directors; and if for the generation of power or any other purpose than irrigation or domestic use, the purpose for which it is proposed to be used, the nature, location, character, capacity and estimated cost of the works, and whether the water used is to be and will be returned to the stream, and if so, at what point on the stream.

(6) In case the proposed right of use is for agricultural purposes, the application shall give the legal subdivisions of the land proposed to be irrigated, with the total acreage to be reclaimed as near as may be; provided, that no one shall be authorized to divert for irrigation purposes more than one (1) cubic foot of water per second of the normal flow for each fifty (50) acres of land to be so irrigated, or more than five (5) acre feet of stored water per annum for each acre of land to be so irrigated, unless it can be shown to the satisfaction of the department of water resources that a greater amount is necessary. Provided further, that the plan of irrigation submitted shall provide for the distribution of water to within not more than one (1) mile of each legal subdivision of the land proposed to be reclaimed by the use of such water; provided also, that in the case of all ditches designed to have a capacity of ten (10) cubic feet per second or less, such map showing the location of such ditch, and the place of use of such water, or the location of the lands to be irrigated, may be upon blanks furnished by the department of water resources.

(7) No application shall be accepted and filed by the department of water resources until the applicant shall have deposited with the department a filing fee as in this chapter provided.

(8) All moneys received by the department of water resources under the provisions of this chapter shall be deposited with the state treasurer, and such sums as may be necessary shall be available for the payment of the expenses of the department of water resources incurred in carrying out the provisions of this chapter.

(9) Such expense shall be paid by the state controller in the manner provided by law, upon vouchers duly approved by the state board of examiners, for the work performed under the direction of the department of water resources. The department of water resources shall keep a record of all filing fees received in connection with applications for permits to appropriate public waters.

(10) Provided further, that rights initiated prior to the enactment of this amendment, so far as it pertains to flood and winterflow waters, shall not be affected thereby.

(11) Provided further, that water rights held by municipal providers prior to July 1, 1996, shall not be limited thereby.

History.

1903, p. 223, § 1; am. 1905, p. 357, § 1; reen. R.C., § 3253; am. 1913, ch. 37, § 1, p. 136; reen. C.L., § 3253; C.S., § 5569; am. 1929, ch. 281, § 1, p. 675; I.C.A.,§ 41-202; am. 1935, ch. 145, § 1, p. 353; am. 1967, ch. 374, § 1, p. 1079; am. 1973, ch. 184, § 1, p. 428; am. 1994, ch. 180, § 83, p. 420; am. 1996, ch. 297, § 1, p. 967; am. 2012, ch. 120, § 1, p. 335.

STATUTORY NOTES

Cross References.

Department of water resources,§ 42-1701 et seq.

State bard of examiners,§ 67-2001 et seq.

State controller,§ 67-1001 et seq.

State treasurer,§ 67-1201 et seq.

Amendments.

The 2012 amendment, by ch. 120, added the second sentence in the introductory paragraph of subsection (1).

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) was changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Effective Dates.

Section 241 of S.L. 1994, ch. 180 provided that such act should become effective on and after the first Monday in January, 1995 [January 2, 1995] if the amendment to the Constitution of Idaho changing the names of the state auditor to state controller [1994 S.J.R. No. 109, p. 1493] was adopted at the general election held on November 8, 1994. Since such amendment was adopted, the amendment to this section by § 83 of S.L. 1994, ch. 180 became effective January 2, 1995.

Section 2 of S.L. 1973, ch. 184 declared an emergency. Approved March 16, 1973.

CASE NOTES

Percolating waters. Period of abandonment.

Change of Diversion.

Where person made application under this section and permit was granted, but he subsequently desired to change point of diversion, it was necessary for him to comply substantially with§ 42-222. Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073 (1915).

The denial of irrigation district’s application of order for change of point of diversion did not constitute res judicata. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Constitutionality.

This section is not unconstitutional, as amended, as conferring judicial power on commissioner of reclamation. Twin Falls Canal Co. v. Huff, 58 Idaho 587, 76 P.2d 923 (1938).

Contents of Application.

Application under this section was required to state facts which could be secured only by entrance to place where appropriation was made, and survey of premises and surroundings at point of diversion and place of improvement, and also a survey of the realty to be taken for dams and ditches to be used in appropriating water to a beneficial use. Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 125 P. 208 (1912).

Failure of an applicant to include a statement of its financial condition in its application could not be used for the first time as a basis for an action to quiet title to waters involved eleven years later. Keller v. Magic Water Co., 92 Idaho 276, 441 P.2d 725 (1968).

Contingent Right of Permittee.

By application for permit, permittee secured inchoate and contingent right which would ripen into legal and complete appropriation by compliance with statutory steps. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Enjoining Diversion.

To enjoin diversion and change in the place of use of water, the injury, if any, must be confined to a water right. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Federal Law.

State water licenses not containing subordination clauses did not control and override the federal subordination clause contained in the federal licenses for the Hells Canyon hydroelectric project; however, neither were the state water licenses preempted by the federal license. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

Issuance of License.

Under Idaho law, a water license does not issue until after the diversion works are completed and the water is applied to a beneficial use, albeit an application for license can be made prior to actual construction. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

Natural Springs.

Water of natural spring was subject to a valid appropriation for a beneficial use. Short v. Praisewater, 35 Idaho 691, 208 P. 844 (1922).

Necessity for Proposal.

The legislature in appropriating water under§ 67-4307 without requiring a diversion intended to dispense with the requirement that a proposal for physical diversion of water must be made before there will be an issuance of a permit to appropriate such water. State, Dep’t of Parks v. Idaho Dep’t of Water Admin., 96 Idaho 440, 530 P.2d 924 (1974).

Parties to Suits.

The United States was an indispensable party to a suit by an irrigation district where the United States had a contractual interest for use of the waters involved. American Falls Reservoir Dist. No. 2 v. Crandall, 82 F.2d 973, modified, 85 F.2d 865 (9th Cir. 1936).

Percolating Waters.

It can make no difference, for purpose of appropriation, that waters collected and formed what is known as a spring are seepage and percolating waters, rather than from well-defined subterranean stream, so long as such waters gravitate to and collect at a certain and definite point, and there constitute a volume of water known and designated as a spring. Le Quime v. Chambers, 15 Idaho 405, 98 P. 415 (1908).

Percolating or subterranean waters are subject to appropriation. Bower v. Moorman, 27 Idaho 162, 147 P. 496 (1915).

Period of Abandonment.

It was only where there was an abandonment of five years of beneficial use by the appropriator that water could be considered as unappropriated water of the state. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Private Rights in Waters.

Private rights in waters authorized by law are simply rights to the use of the “public waters” and not an ownership in them, at least while they are flowing in the natural channel. Boise City Irrigation & Land Co. v. Stewart, 10 Idaho 38, 77 P. 25 (1904). So long as water continues to flow in its natural channel, it is not and cannot be made the subject of private ownership, except insofar as it is regarded as a part of the land by or through which the stream flows. Boise City Irrigation & Land Co. v. Stewart, 10 Idaho 38, 77 P. 25 (1904).

Private Waters.

Law does not purport to deal with private waters, such as private ponds, artificial lakes or wells owned by private persons and formed by collecting and impounding surface waters. King v. Chamberlin, 20 Idaho 504, 118 P. 1099 (1911).

Public Waters.

The term “public waters” refers to all waters running in the natural channel of the streams, and the state may, by proper legislation, regulate the appropriation and use thereof. Boise City Irrigation & Land Co. v. Stewart, 10 Idaho 38, 77 P. 25 (1904).

Rights Acquired.

Rights acquired under water license are confined to waters described in application. Rabido v. Furey, 33 Idaho 56, 190 P. 73 (1920).

Riparian Owners.

Riparian owners who desire to appropriate public waters for a beneficial use must comply with the provisions of law the same as those who are not riparian owners. Idaho Power & Transp. Co. v. Stephenson, 16 Idaho 418, 101 P. 821 (1909).

Seepage Water.

Surface waste and seepage water may be appropriated, subject to right of owner to cease wasting it, or in good faith to change place or manner of wasting it, or to recapture it, so long as he applies it to a beneficial use. Sebern v. Moore, 44 Idaho 410, 258 P. 176 (1927).

The appropriation of seepage and waste water was subject to the right of the owner to cessation of waste, or in good faith changing place of wasting, or to recapture so long as it was applied to a beneficial use. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Subterranean Waters.

Unconstitutionality of Part of Amendment.

Subterranean waters may be appropriated by diversion and beneficial use without compliance with this section. Silkey v. Tiegs, 51 Idaho 344, 5 P.2d 1049 (1931). Unconstitutionality of Part of Amendment.

Even if some provisions of an amendment of this section were unconstitutional, the district court should not have dismissed the action, but should have proceeded under the prior valid statute and such portion of the amendment as could be held valid; and such a proceeding would not be an action for a declaratory judgment, and the court would not pass upon the question of unconstitutionality until presented in a cause demanding rulings thereon. Twin Falls Canal Co. v. Huff, 58 Idaho 587, 76 P.2d 923 (1938).

Vesting of Rights.

Waters from Hot Wells.

Waters of hot wells held not public waters and not subject to appropriation except by owners of fee. Public Utils. Comm’n v. Natatorium Co., 36 Idaho 287, 211 P. 533 (1922).

When Right Vests.

When right to use of unappropriated waters had been initiated by application for permit and proper steps taken to perfect such right, such right vested and dated back to issuance of permit. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Cited

Lemmon v. Hardy, 95 Idaho 778, 519 P.2d 1168 (1974); Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977); Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996); Chisholm v. State Dep’t of Water Res. (In re Transfer No. 5639), 142 Idaho 159, 125 P.3d 515 (2005).

RESEARCH REFERENCES

C.J.S.

§ 42-202A. Temporary approval — Application — Criteria — Exceptions.

Any person, association or corporation hereafter intending to use the waters of any natural streams, springs or seepage waters, lakes or ground water, or other public waters in the state of Idaho, for a minor use of short duration may make application to the department of water resources for temporary approval.
Application for temporary approval shall be upon forms provided by the department of water resources and shall be accompanied by a fifty dollar ($50.00) fee.
The director of the department of water resources is not required to publish notice of the application pursuant to the provisions of section 42-203A, Idaho Code, and is not required to make findings as provided in section 42-203A or 42-203C, Idaho Code. The director may, however, give notice of an application as he determines appropriate and may grant a temporary approval upon completion of the application form, payment of the filing fee, a determination by the director that the temporary approval can be properly administered, a determination that other sources of water are not available, a determination that approval is in the public interest and a determination that the temporary approval will not injure public values associated with the water source or any other water right. If the temporary approval is within a water district, the director shall seek and consider the recommendations of the watermaster before granting a temporary approval. The director may issue a temporary approval with the conditions determined by the director to be necessary to protect other water rights and the public interest.
The recipient of any temporary approval issued pursuant to the provisions of this act shall assume all risk that the diversion and use of the water may injure other water rights, or otherwise not comply with the criteria described in section 42-203A(5), Idaho Code. Any applicant for a temporary approval who is aggrieved by a denial of the director of a temporary approval pursuant to this act may file an application to appropriate water as provided in section 42-202, Idaho Code.
A temporary approval shall only be granted for a use not intended to become an established water right:
1. For prevention of flood damage;
2. For ground water recharge;
3. For ground or surface water remediation; or
4. For any other use which will not exceed a total diverted volume of five (5) acre feet for the duration of the approval.

Approval of the uses set forth herein shall not exceed one (1) year. “Remediation” is defined to be the removal of hazardous substances or petroleum, as those terms are defined in section 39-7203, Idaho Code, from water in response to state or federal health and safety requirements. Approvals issued under the provisions of this section constitute a waiver of the mandatory permit requirements of section 42-201(2), Idaho Code, and do not create a continuing right to use water. Temporary approvals shall not be issued as an interim water supply for a use which requires a continuing water supply.

History.

(6) The provisions of this section do not require a temporary approval: (a) before diverting and using water to extinguish or prevent the spread of an existing wildfire on private or public lands, facilities or equipment, including the use of water by personnel engaged in fighting an existing wildfire, or (b) for reservoir flood control authorized by state or federal laws. History.

I.C.,§ 42-202A, as added by 1993, ch. 255, § 1, p. 880; am. 2017, ch. 210, § 1, p. 513.

STATUTORY NOTES

Amendments.

The 2017 amendment, by ch. 210, rewrote the first sentence in subsection (5), which formerly read: “A temporary approval shall only be granted for a use not intended to become an established water right and for a use which will not exceed a total diverted volume of five (5) acre feet for the duration of the approval, which shall not exceed one (1) year”; and, in subsection (6), inserted “(a)” preceding “before diverting” near the beginning and added “or (b) for reservoir flood control authorized by state or federal laws” at the end.

Compiler’s Notes.

The term “this act” in subsection (4) refers to S.L. 1993, Chapter 255, which is codified only as this section.

Effective Dates.

Section 2 of S.L. 1993, ch. 255 declared an emergency. Approved March 29, 1993.

Section 2 of S.L. 2017, ch. 210 declared an emergency. Approved March 30, 2017.

§ 42-202B. Definitions.

Whenever used in this title, the term:

“Consumptive use” means that portion of the annual volume of water diverted under a water right that is transpired by growing vegetation, evaporated from soils, converted to nonrecoverable water vapor, incorporated into products, or otherwise does not return to the waters of the state. Consumptive use is not an element of a water right. Consumptive use does not include any water that falls as precipitation directly on the place of use. Precipitation shall not be considered to reduce the consumptive use of a water right. “Authorized consumptive use” means the maximum consumptive use that may be made of a water right. If the use of a water right is for irrigation, for example, the authorized consumptive use reflects irrigation of the most consumptive vegetation that may be grown at the place of use. Changes in consumptive use do not require a transfer pursuant to section 42-222, Idaho Code.
“Digital boundary” means the boundary encompassing and defining an area consisting of or incorporating the place of use or permissible place of use for a water right prepared and maintained by the department of water resources using a geographic information system in conformance with the national standard for spatial data accuracy or succeeding standard.
“Local public interest” is defined as the interests that the people in the area directly affected by a proposed water use have in the effects of such use on the public water resource.
“Municipality” means a city incorporated under section 50-102, Idaho Code, a county, or the state of Idaho acting through a department or institution.
“Municipal provider” means:
1. A municipality that provides water for municipal purposes to its residents and other users within its service area;
2. Any corporation or association holding a franchise to supply water for municipal purposes, or a political subdivision of the state of Idaho authorized to supply water for municipal purposes, and which does supply water, for municipal purposes to users within its service area; or
3. A corporation or association which supplies water for municipal purposes through a water system regulated by the state of Idaho as a “public water supply” as described in section 39-103(12), Idaho Code.
“Municipal purposes” refers to water for residential, commercial, industrial, irrigation of parks and open space, and related purposes, excluding use of water from geothermal sources for heating, which a municipal provider is entitled or obligated to supply to all those users within a service area, including those located outside the boundaries of a municipality served by a municipal provider.
“Planning horizon” refers to the length of time that the department determines is reasonable for a municipal provider to hold water rights to meet reasonably anticipated future needs. The length of the planning horizon may vary according to the needs of the particular municipal provider.
“Reasonably anticipated future needs” refers to future uses of water by a municipal provider for municipal purposes within a service area which, on the basis of population and other planning data, are reasonably expected to be required within the planning horizon of each municipality within the service area not inconsistent with comprehensive land use plans approved by each municipality. Reasonably anticipated future needs shall not include uses of water within areas overlapped by conflicting comprehensive land use plans. (9) “Service area” means that area within which a municipal provider is or becomes entitled or obligated to provide water for municipal purposes. For a municipality, the service area shall correspond to its corporate limits, or other recognized boundaries, including changes therein after the permit or license is issued. The service area for a municipality may also include areas outside its corporate limits, or other recognized boundaries, that are within the municipality’s established planning area if the constructed delivery system for the area shares a common water distribution system with lands located within the corporate limits. For a municipal provider that is not a municipality, the service area shall correspond to the area that it is authorized or obligated to serve, including changes therein after the permit or license is issued.

History.

I.C.,§ 42-202B, as added by 1996, ch. 297, § 2, p. 967; am. 1997, ch. 373, § 1, p. 1188; am. 2000, ch. 132, § 36, p. 309; am. 2002, ch. 306, § 1, p. 870; am. 2003, ch. 298, § 1, p. 806; am. 2004, ch. 258, § 1, p. 733; am. 2005, ch. 167, § 15, p. 509.

STATUTORY NOTES

Compiler’s Notes.

For more on the national standard for spatial data accuracy, see http://www.fgdc.gov/dataandservices .

Effective Dates.

Section 39 of S.L. 2000, ch. 132 provided: “This act shall be in full force and effect on and after July 1, 2000, except that the Division of Environmental Quality shall have one (1) year thereafter to accomplish necessary changes to complete the physical transition to the new department.”

CASE NOTES

Cited

Barron v. Idaho Dep’t of Water Resources, 135 Idaho 414, 18 P.3d 219 (2001); North Snake Ground Water Dist. v. Idaho Dep’t of Water Res. (In re Permit No. 36-16979), 160 Idaho 518, 376 P.3d 722 (2016).

§ 42-203. [Amended and Redesignated.]

STATUTORY NOTES

Compiler’s Notes.

Former§ 42-203 was amended and redesignated as§ 42-203A by § 1 of S.L. 1985, ch. 17.

§ 42-203A. Notice upon receipt of application — Protest — Hearing and findings — Appeals.

Upon receipt of an application to appropriate the waters of this state, the department of water resources shall prepare a notice in such form as the department may prescribe, specifying: (a) the number of the application; (b) the date of filing thereof; (c) the name and post-office address of the applicant; (d) the source of the water supply; (e) the amount of water to be appropriated; (f) in general the nature of the proposed use; (g) the approximate location of the point of diversion; and (h) the point of use. The department shall also state in said notice that any protest against the approval of such application, in form prescribed by the department, shall be filed with the department within ten (10) days from the last date of publication of such notice.
The director of the department of water resources shall cause the notice to be published in a newspaper printed within the county wherein the point of diversion lies or, in the event no newspaper is printed in said county, then in a newspaper of general circulation therein. When the application proposes a diversion in excess of ten (10) c.f.s. or one thousand (1,000) acre feet, the director shall cause the notice to be published in a newspaper or newspapers sufficient to achieve statewide circulation. Any notice shall be published at least once each week for two (2) successive weeks.
The director of the department shall also cause notice of the application to be accessible from the department’s internet homepage beginning on or before the date the application is first published in the newspaper as described in subsection (2) of this section, and ending no sooner than the deadline for protesting the application, consistent with subsection (1) of this section. Notice accessible from the internet homepage may be represented by an abstract, summary, or other such representation that includes all the information required by subsection (1) of this section for notice of an application. The notice published in the newspaper pursuant to subsection (2) of this section shall be the official notice. Errors or omissions in the notices accessible from the internet homepage shall not invalidate the published notice.
Any person, firm, association or corporation concerned in any such application may, within the time allowed in the notice of application, file with said director of the department of water resources a written protest, together with the statutory filing fee as provided in section 42-221, Idaho Code, against the approval of such application, which protest shall state the name and address of protestant and shall be signed by him or by his agent or attorney and shall clearly set forth his objections to the approval of such application. Hearing upon the protest so filed shall be held within sixty (60) days from the date such protest is received. Notice of this hearing shall be given by mailing notice not less than ten (10) days before the date of hearing and shall be forwarded to both the applicant and the protestant, or protestants, by certified mail. Such notice shall state the names of the applicant and protestant, or protestants, the time and place fixed for the hearing and such other information as the director of the department of water resources may deem advisable. In the event that no protest is filed, then the director of the department of water resources may forthwith approve the application, providing the same in all respects conforms with the requirements of this chapter, and with the regulations of the department of water resources.
Such hearing shall be conducted in accordance with the provisions of section 42-1701A(1) and (2), Idaho Code. The director of the department of water resources shall find and determine from the evidence presented to what use or uses the water sought to be appropriated can be and are intended to be applied. In all applications whether protested or not protested, where the proposed use is such: (a) that it will reduce the quantity of water under existing water rights, or (b) that the water supply itself is insufficient for the purpose for which it is sought to be appropriated, or (c) where it appears to the satisfaction of the director that such application is not made in good faith, is made for delay or speculative purposes, or (d) that the applicant has not sufficient financial resources with which to complete the work involved therein, or (e) that it will conflict with the local public interest as defined in section 42-202B, Idaho Code, or (f) that it is contrary to conservation of water resources within the state of Idaho, or (g) that it will adversely affect the local economy of the watershed or local area within which the source of water for the proposed use originates, in the case where the place of use is outside of the watershed or local area where the source of water originates; the director of the department of water resources may reject such application and refuse issuance of a permit therefor, or may partially approve and grant a permit for a smaller quantity of water than applied for, or may grant a permit upon conditions. Provided however, that minimum stream flow water rights may not be established under the local public interest criterion, and may only be established pursuant to chapter 15, title 42, Idaho Code. The provisions of this section shall apply to any boundary stream between this and any other state in all cases where the water sought to be appropriated has its source largely within the state, irrespective of the location of any proposed power generating plant.
Any person or corporation who has formally appeared at the hearing, aggrieved by the judgment of the director of the department of water resources, may seek judicial review thereof in accordance with section 42-1701A(4), Idaho Code.

History.

C.S., § 5569A, as added by 1929, ch. 212, § 1, p. 429; I.C.A.,§ 41-203; am. 1935, ch. 145, § 2, p. 353; am. 1967, ch. 374, § 2, p. 1079; am. 1969, ch. 469, § 1, p. 1346; am. 1978, ch. 306, § 1, p. 767; am. 1980, ch. 238, § 2, p. 526; am and redesig. 1985, ch. 17, § 1, p. 23; am. 1990, ch. 141, § 4, p. 316; am. 1994, ch. 64, § 1, p. 121; am. 2003, ch. 298, § 2, p. 806; am. 2011, ch. 170, § 1, p. 488.

STATUTORY NOTES

Amendments.

The 2011 amendment, by ch. 170, rewrote subsection (3), which formerly read: “The director of the department shall cause a copy of the notice of application to be sent by ordinary mail to any person who requests in writing to receive any class of notices of application and who pays an annual mailing fee as established by departmental regulation.”

Compiler’s Notes.

Effective Dates.

Section 2 of S.L. 1978, ch. 306 declared an emergency. Approved March 29, 1978.

CASE NOTES

Appeals.

Court was bound to take, on an appeal from an order of the commissioner of reclamation, the date on letter to the protestant reciting that the order was “made and entered this day” rather than the date actually appearing on the ruling and order. Idaho Power Co. v. Buhl, 62 Idaho 351, 111 P.2d 1088 (1941).

Constitutionality.

One to whom water permit was granted by the commissioner of reclamation could not urge unconstitutionality of amendment to statutes governing contests of permits in the absence of a showing of injury by reason thereof. Twin Falls Canal Co. v. Huff, 58 Idaho 587, 76 P.2d 923 (1938).

Even if some provisions of the 1935 amendment to this section were unconstitutional, the district court should not have dismissed the action, but should have proceeded under the prior valid statute and such portion of the amendment as could be held valid, and such a proceeding would not be an action for a declaratory judgment, and the court could not pass upon the question of unconstitutionality until presented in a cause demanding rulings thereon. Twin Falls Canal Co. v. Huff, 58 Idaho 587, 76 P.2d 923 (1938).

Design Plan.

Good Faith.

The design plan for a proposed facility depends on the nature of the facility, the complexity of the proposal, and the extent of the proposed appropriation’s impact on the local area; the plans should be sufficient to generally apprise the public of the efficacy of the proposed use in the planned facility, and of its potential impact. Shokal v. Dunn, 109 Idaho 330, 707 P.2d 441 (1985). Good Faith.

An application to appropriate water does not need to be accompanied by new construction or a new project to show that the application is being made in good faith; existing physical structures may be used. North Snake Ground Water Dist. v. Idaho Dep’t of Water Res. (In re Permit No. 36-16979), 160 Idaho 518, 376 P.3d 722 (2016).

Local Public Interest.

An interpretation of “local public interest” is not entitled to deference, where it is inconsistent with the plain language of the statutory definition provided in§ 42-202B. North Snake Ground Water Dist. v. Idaho Dep’t of Water Res. (In re Permit No. 36-16979), 160 Idaho 518, 376 P.3d 722 (2016).

Mitigation.

Mitigation has been recognized as a beneficial use in both agency and judicial proceedings. North Snake Ground Water Dist. v. Idaho Dep’t of Water Res. (In re Permit No. 36-16979), 160 Idaho 518, 376 P.3d 722 (2016).

Public Interest.

The legislature in this section must have intended the public interest on the local scale to include the public interest elements listed in§ 42-1501, as well as assuring minimum stream flows, discouraging waste and encouraging conservation. The relevant elements of public interest and their relative weights will vary with local needs, circumstances and interests. Shokal v. Dunn, 109 Idaho 330, 707 P.2d 441 (1985).

While the burden of production as to which elements of public interest are impacted and to what degree lies with the party that has knowledge peculiar to himself, the burden of proof in all cases as to where the public interest lies rests with the applicant for a permit to appropriate water. Shokal v. Dunn, 109 Idaho 330, 707 P.2d 441 (1985).

The determination of what elements of the public interest are impacted, and what the public interest requires, is committed to the department of water resources’ sound discretion. Shokal v. Dunn, 109 Idaho 330, 707 P.2d 441 (1985).

Attaching nine conditions to the approved water permit was within the authority granted the department of water resources by the legislature. When the legislature enacted subsection (5) of this section, it clearly vested in the director of the department considerable authority and discretion to determine and protect the “local public interest” when issuing or rejecting water permits. Collins Bros. Corp. v. Dunn, 114 Idaho 600, 759 P.2d 891 (1988).

The director correctly found that the transfer of water right to land not previously covered by the right did not conflict with the local public interest, even though a local road had been flooded on several occasions by the water appropriated under the water right. Dovel v. Dobson, 122 Idaho 59, 831 P.2d 527 (1992).

Under this section, any application to appropriate water in Idaho is subject to the local public interest standard. Likewise, any change to a water right under§ 42-222 is also subject to a determination that the change is in the local public interest as stated in this section; as is an amendment to a water permit under§ 42-211. Hardy v. Higginson, 123 Idaho 485, 849 P.2d 946 (1993).

Publication of Notice.

In the absence of a showing to the contrary, it will be presumed that publication of notice was made as required by this section and that, in passing on the application, the reclamation engineer (director of the department of water resources) complied with statutory provisions concerning filing of protests to the granting of the application. Keller v. Magic Water Co., 92 Idaho 276, 441 P.2d 725 (1968).

Rejection of Application Involving Speculation.

Where plaintiffs filed an application for a water permit but had no possessory right in the land designated as the place of use, it amounted to speculation, and a person may not file an application for water right and then seek a place for its use. Lemmon v. Hardy, 95 Idaho 778, 519 P.2d 1168 (1974).

Retroactive Application of Public Interest Standard.

It was not improper to apply the new local public interest standard imposed by the 1978 amendment to an application for a water appropriation permit filed prior to the amendment, since a permit applicant applying to appropriate water has no prior individually vested right to the water at the time of the application in that it does not already own the water and since impermissible retroactive legislation is only that legislation which affects vested or preexisting rights. Hidden Spring Trout Ranch, Inc. v. Allred, 102 Idaho 623, 636 P.2d 745 (1981).

The filing of an application for a water appropriation permit establishes the priority date of the appropriation under the relation back doctrine, but any such priority date right is nonetheless contingent upon future statutory adherence and issuance of a license pursuant to§ 42-219 and is therefore not a vested right which would preclude application of§ 42-203 (now this section), as amended in 1978, to a permit application filed prior to that amendment. Hidden Springs Trout Ranch, Inc. v. Allred, 102 Idaho 623, 636 P.2d 745 (1981).

Standing to Contest Change.

Where the Box Canyon area was designated by the bureau of land management as an Area of Critical Environmental Concern (ACEC), and where the values justifying the ACEC designation included the identification of four candidate threatened and endangered aquatic species and the scenic and unique natural qualities of the area, the protection of this habitat fell within the local public interest as defined in Shokal v. Dunn , 109 Idaho 330, 770 P.2d 441 (1985); therefore, the protestants, although having no water rights within Box Canyon, sought to protect these locally important factors and thus their interests were properly considered by the director of the Idaho department of water resources. Hardy v. Higginson, 123 Idaho 485, 849 P.2d 946 (1993).

Sufficient Financial Resources.

A showing by the applicant that it is “reasonably probable” that financing can be secured to complete the project within five years serves the purpose of screening out undeserving projects without being destructive of growth and development in the state. Shokal v. Dunn, 109 Idaho 330, 707 P.2d 441 (1985).

Unsatisfactory Permit Conditions.

Vesting of Rights.

If a permittee finds the conditions imposed on an amendment to a water permit to be unsatisfactory, the permittee shall be allowed to withdraw the application and be left with what the permittee had before submitting the application to the Idaho department of water resources. Hardy v. Higginson, 123 Idaho 485, 849 P.2d 946 (1993). Vesting of Rights.

When Appeal Taken.

For jurisdictional purposes an appeal from the department of water resources to the district court under this section has been taken when the appellant files his petition setting forth the appellant’s reason for appeal in the appropriate district court, and failure to take the additional steps outlined in this section is only grounds for the court to exercise its discretion in imposing sanctions, including dismissal, if any delay caused thereby can fairly be said to have prejudiced the other party or parties to the appeal. Neal v. Harris, 100 Idaho 348, 597 P.2d 234 (1979).

RESEARCH REFERENCES

C.J.S.

§ 42-203B. Authority to subordinate rights — Nature of subordinated water right and authority to establish a subordination condition — Authority to limit term of permit or license.

The legislature finds and declares that it is in the public interest to specifically implement the state’s power to regulate and limit the use of water for power purposes and to define the relationship between the state and the holder of a water right for power purposes to the extent such right exceeds an established minimum flow. The purposes of the trust established by subsections (2) and (3) of this section are to assure an adequate supply of water for all future beneficial uses and to clarify and protect the right of a user of water for power purposes subordinated by a permit issued after July 1, 1985, or by an agreement, to continue using the water pending approval of depletionary future beneficial uses.
A water right for power purposes which is defined by agreement with the state as unsubordinated to the extent of a minimum flow established by state action shall remain unsubordinated as defined by the agreement. Any portion of the water rights for power purposes in excess of the level so established shall be held in trust by the state of Idaho, by and through the governor, for the use and benefit of the user of the water for power purposes, and of the people of the state of Idaho; provided, however, that application of the provisions of this section to water rights for hydropower purposes on the Snake river or its tributaries downstream from Milner dam shall not place in trust any water from the Snake river or surface or ground water tributary to the Snake river upstream from Milner dam. For the purposes of the determination and administration of rights to the use of the waters of the Snake river or its tributaries downstream from Milner dam, no portion of the waters of the Snake river or surface or ground water tributary to the Snake river upstream from Milner dam shall be considered. The rights held in trust shall be subject to subordination to and depletion by future upstream beneficial users whose rights are acquired pursuant to state law, including compliance with the requirements of section 42-203C, Idaho Code.
Water rights for power purposes not defined by agreement with the state shall not be subject to depletion below any applicable minimum stream flow established by state action. Water rights for power purposes in excess of such minimum stream flow shall be held in trust by the state of Idaho, by and through the governor, for the use and benefit of the users of water for power purposes and of the people of the state of Idaho. The rights held in trust shall be subject to subordination to and depletion by future consumptive upstream beneficial users whose rights are acquired pursuant to state law, excluding compliance with the requirements of section 42-203C, Idaho Code.
The user of water for power purposes as beneficiary of the trust established in subsections (2) and (3) of this section shall be entitled to use water available at its facilities to the extent of the water right, and to protect its rights to the use of the water as provided by state law against depletions or claims not in accordance with state law.
The governor or his designee is hereby authorized and empowered to enter into agreements with holders of water rights for power purposes to define that portion of their water rights at or below the level of the applicable minimum stream flow as being unsubordinated to upstream beneficial uses and depletions, and to define such rights in excess thereof as being held in trust by the state under subsection (2) of this section. Such agreements shall be subject to ratification by law. The contract entered into by the governor and the Idaho power company on October 25, 1984, is hereby found and declared to be such an agreement, and the legislature hereby ratifies the governor’s authority and power to enter into this agreement. (6) The director shall have the authority to subordinate the rights granted in a permit or license for power purposes to subsequent upstream beneficial depletionary uses. A subordinated water right for power use does not give rise to any claim against, or right to interfere with, the holder of subsequent upstream rights established pursuant to state law. The director shall also have the authority to limit a permit or license for power purposes to a term, which may be in the form of a fixed date or by reference to a federal energy regulatory commission (FERC) license or other authorization issued or contract executed, in connection with the power project.
1. The term of any power purchase contract which is, or reasonably may become, applicable to, such permit or license;
2. The policy of the Idaho public utilities commission (IPUC) regarding the term of power purchase contracts as administered by the IPUC under and pursuant to the authority of the public utility regulatory policy act of 1978 (PURPA);
3. The term of any FERC license granted, or which reasonably may be granted, with respect to any particular permit or license for power purpose;
4. Existing downstream water uses established pursuant to state law.

Subsection (6) of this section shall not apply to licenses which have already been issued as of July 1, 1985.

(7) The director, in the exercise of the authority to limit a permit or license for power purposes to a term, shall, for purposes of determining such term, consider any of the following factors, among others:

The term shall be determined at the time of issuance of the permit, or as soon thereafter as practicable if adequate information is not then available. The term shall commence upon application of water to beneficial use. The term, once established, shall not thereafter be modified except in accordance with due process of law prior to expiring.

(8) If a term is established by the director by reference to the hydropower project’s FERC license, the term shall automatically extend to run concurrently with any annual renewals of the project’s FERC license. Prior to the issuance of a subsequent or new FERC license for the project, the director may review the water right license and may issue an order canceling all or any part of the use, establishing a new term, or revising, adding or deleting conditions under which the water right may be exercised. The order shall take effect on the date the current term, as may be extended through annual renewals, expires. If the director does not issue such an order, the term shall automatically extend to a length equal to the project’s subsequent or new FERC license and any original conditions on the water right license shall remain in effect.

History.

(9) If a term is established by the director but the term is not established by reference to a hydropower project’s FERC license, the director may review the water right license prior to the expiration of the term and may issue an order canceling all or any part of the use, establishing a new term of years, or revising, adding or deleting conditions under which the water right may be exercised. The order shall take effect on the date the current term expires. If the director does not issue such an order, the term shall automatically extend to a length equal to the original term and any original conditions on the water right license shall remain in effect. History.

I.C.,§ 42-203B, as added by 1985, ch. 17, § 2, p. 23 and ch. 224, § 1, p. 537; am. 1986, ch. 117, § 1, p. 308; am. 2013, ch. 45, § 1, p. 94.

STATUTORY NOTES

Cross References.

Idaho public utilities commission,§ 61-201 et seq.

Amendments.

The 2013 amendment, by ch. 45, in subsection (6), substituted “term, which may be in the form of a fixed date or by reference to a federal energy regulatory commission (FERC) license or other authorization issued or contract executed, in connection with the power project” for “specific term” at the end of the first paragraph and substituted “July 1, 1985” for “the effective date of this act” at the end of the second paragraph; in subsection (7), rewrote the introductory paragraph, which formerly read: “The director in the exercise of the authority to limit a permit or license for power purposes to a specific term of years shall designate the number of years through which the term of the license shall extend and for purposes of determining such date shall consider among other factors”, substituted “FERC license” for “federal energy regulatory commission (FERC) license” near the beginning of paragraph (c), in the undesignated paragraph following paragraph (d), deleted “of years” following “The term” near the beginning of the first three sentences and added “prior to expiring” at the end; and added subsections (8) and (9).

Federal References.

The public utility regulatory policy act of 1978, referred to in paragraph (7)(b), is compiled as 16 U.S.C.S. § 2601 et seq.

Compiler’s Notes.

Concerning the contract of October 25, 1984, referred to in subsection (5), see S.L. 1985, ch. 14.

As to the federal energy regulatory commission, see http://www.ferc.gov .

The abbreviations enclosed in parentheses so appeared in the law as enacted.

CASE NOTES

Purpose of Agreement Concerning Subordination.

Term Condition.

The purpose of Idaho Power Company’s agreement to have its claim to Snake River water rights for its Swan Falls hydroelectric facility of 8,400 c.f.s. (measured at the Murphy gauging station) subordinated down to a reduced average daily flow, was to make available more water for future appropriators and to assist in the expansion of other beneficial uses of the water in the Snake River. Miles v. Idaho Power Co., 116 Idaho 635, 778 P.2d 757 (1989). Term Condition.

The plain language of this section gives the department of water resources the authority to include a term condition in a license to divert water for power generation, even if such a term was not included in the original permit. Idaho Power Co. v. Idaho Dep’t of Water Res. (In re Licensed Water Right No. 03-7018), 151 Idaho 266, 255 P.3d 1152 (2011).

Vesting of Rights.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

Understanding the 1984 Swan Falls Settlement, Clive J. Strong & Michael C. Orr. 52 Idaho L. Rev. 223 (2016).

§ 42-203C. Hydropower water right — Criteria for reallocation — Weight — Burden of proof.

If an applicant intends to appropriate water which is held in trust by the state of Idaho pursuant to subsection (5) of section 42-203B, Idaho Code, the director shall consider, prior to approving the application, the criteria established in section 42-203A, Idaho Code, and whether the proposed use, individually or cumulatively with other existing uses, or uses reasonably likely to exist within twelve (12) months of the proposed use, would significantly reduce the amount of trust water available to the holder of the water right used for power production that is defined by agreement pursuant to subsection (5) of section 42-203B, Idaho Code, and, if so, whether the proposed reduction is in the public interest.
1. The director in making such public interest determinations for purposes of this section shall consider: (2)(a) The director in making such public interest determinations for purposes of this section shall consider:
  1. The potential benefits, both direct and indirect, that the proposed use would provide to the state and local economy;
  2. The economic impact the proposed use would have upon electric utility rates in the state of Idaho, and the availability, foreseeability and cost of alternative energy sources to ameliorate such impact;
  3. The promotion of the family farming tradition;
  4. The promotion of full economic and multiple use development of the water resources of the state of Idaho;
  5. In the Snake River Basin above the Murphy gauge whether the proposed development conforms to a staged development policy of up to twenty thousand (20,000) acres per year or eighty thousand (80,000) acres in any four (4) year period.
2. The burden of proof under the provisions of this section shall be on the protestant.

No single factor enumerated above shall be entitled to greater weight by the director in arriving at this determination.

History.

I.C.,§ 42-203C, as added by 1985, ch. 17, § 3, p. 23; am. 1986, ch. 117, § 2, p. 308.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the 1984 Swan Falls Settlement, Clive J. Strong & Michael C. Orr. 52 Idaho L. Rev. 223 (2016).

§ 42-203D. Review of permits — Opportunity for hearing.

The director of the department of water resources shall review all permits issued prior to July 1, 1985, which propose to divert water held in trust by the state of Idaho pursuant to subsection (5) of section 42-203B, Idaho Code, except to the extent a permit has been put to beneficial use prior to July 1, 1985, to determine whether they comply with the provisions of section 42-203C, Idaho Code. If the department finds that the proposed use is allowed under section 42-203C, Idaho Code, then the department shall enter an order continuing the permit. If the department finds that the proposed use is not allowed under section 42-203C, Idaho Code, then the department shall either cancel the permit or impose the conditions required to bring the permit into compliance with section 42-203C, Idaho Code.
The department shall provide an opportunity for hearing in accordance with section 42-1701A, Idaho Code, and chapter 52, title 67, Idaho Code, for each holder of a permit that is proposed either to be cancelled or made subject to new conditions.

History.

I.C.,§ 42-203D, as added by 1985, ch. 17, § 4, p. 23; am. 1986, ch. 117, § 3, p. 308; am. 1993, ch. 216, § 32, p. 587.

STATUTORY NOTES

Compiler’s Notes.

Section 5 of S.L. 1985, ch. 17 read: “This act shall not be construed as modifying, amending, or repealing any interstate compact.”

Section 6 of S.L. 1985, ch. 17 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 4 of S.L. 1986, ch. 117 declared an emergency. Approved March 24, 1986.

§ 42-204. Examination — Permit — Commencement of work — Extensions — Appeal.

On receipt of the application, which shall be of a form prescribed by the department of water resources, it shall be the duty of that department to make an endorsement thereon of the date of its receipt and to examine said application and ascertain if it sets forth all the facts necessary to show the location, nature and amount of the proposed use. If upon such examination the application is found defective, it shall be the duty of the department of water resources to return the same for correction or to correspond with the applicant to obtain the needed information or amendments. If the application is returned to the applicant or the department shall request additional information and the applicant fails to return the corrected application or to supply the needed information within thirty (30) days, the department may void the record of said application and notify the applicant of such action. If the corrected application is returned or the information is supplied after thirty (30) days, such corrected application shall be treated in all respects as a new application, and the priority of the right initiated shall be determined by the date of receipt in the office of the department of the corrected application or additional information; provided, that upon request, and good cause appearing therefor, the director of the department of water resources may grant an extension of time within which to return the corrected application or supply needed information. All applications that comply with the provisions of this chapter and with the regulations of the department of water resources shall be numbered in such manner as will aid in their identification, and it shall be the duty of the department to approve all applications made in proper form that contemplate the application of water to a beneficial use: provided, that the department may deny any such application, or may partially approve and grant a permit for a lesser quantity of water than applied for, or may grant a permit upon conditions as provided in this chapter.
The department of water resources shall issue a permit for any approved application, make a record of the approval and provide a copy of the permit to the applicant, who shall be authorized, on receipt thereof, to proceed with the construction of the necessary works for the diversion of such water and to take all steps required to apply the water to a beneficial use and perfect the proposed appropriation.
The provisions of this subsection shall not apply to permits held by municipal providers for reasonably anticipated future needs. For all other permits, the department shall require that actual construction work and application of the water to full beneficial use shall be complete within a period of five (5) years from the date of such approval, but may limit permit development to a shorter period than requested in the application, and the permit shall set forth the date when beneficial application of the water to be diverted by such works shall be made. Sixty (60) days before the date set for the completion of the appropriation of water under any permit, the department shall forward a notice to the permit holder by certified mail at the permit holder’s address of record of the date for such completion, which said notice shall advise the permit holder of the necessity of submitting a statement of completion showing proof of beneficial use or a request for an extension of time on or before said date. The department may approve a timely request for an extension of time in the following circumstances: (a) In cases where the permit holder is prevented from proceeding with construction, work, or application of water to full beneficial use by the permit holder’s failure to obtain necessary consent or final approval or rejection from the federal government because of the pendency of an application for right-of-way or other matter within the jurisdiction of the United States, by state, county, city or other local government permitting or administrative action or process related to the permit holder’s land or water development, or by litigation of any nature which might bring the permit holder’s title to said water in question, the department of water resources, upon proper showing of the existence of any such condition, and being convinced that said permit holder is proceeding diligently and in good faith, shall extend the time so that the amount of time lost by such delays shall be added to the time given in the original permit, or in any subsequent grant of extension pursuant to paragraph (b), (c), (d), or (f) of this subsection, for each and every action required.
For permits held by municipal providers for reasonably anticipated future needs, the permit development period shall correspond to the planning horizon authorized by the permit, which may not be extended. During the permit development period, the municipal provider shall periodically submit to the department incremental statements of completion showing proof of beneficial use consistent with the provisions of section 42-217, Idaho Code. Each such incremental statement shall document the extent of application of water to beneficial use during the most recent reporting interval. Each incremental statement shall be prepared by a certified water rights examiner, unless the permit holder is not asserting any additional increment of beneficial use during that reporting interval. The department shall set and may later adjust the duration of any reporting interval for any permit, which shall be made a condition of the permit, to any duration not shorter than five (5) years. Sixty (60) days before the end of each reporting interval, the department shall forward a notice to the municipal provider by certified mail to its address of record specifying the date the incremental statement is due. Unless an extension of the deadline for the incremental statement is requested by the municipal provider prior to the deadline, and the extension is approved by the director upon a showing of good cause, failure to timely submit an incremental statement shall result in a lapse of that portion of the permit that has not previously been licensed or for which an incremental statement of completion showing proof of beneficial use has not been submitted. Such lapsed permit portion may be reinstated only in accordance with the provisions of section 42-218a, Idaho Code. For reasonably anticipated future needs permits existing on July 1, 2020, the department shall have one (1) year from July 1, 2020, either to issue a license, where proof already has been submitted, or to modify the permit to conform to the provisions of this section by establishing future reporting intervals for periodic proof statements, by establishing the date for the final proof statement corresponding with the end of the planning horizon authorized by the existing permit, and by updating approval conditions to clarify whether information that must be submitted with proof of beneficial use is due at each reporting interval or only with the final proof statement.
Any permit holder aggrieved by the decision of the department of water resources regarding its request for extension may request a hearing before the director in accordance with section 42-1701A(3), Idaho Code, for the purpose of contesting the decision and may seek judicial review pursuant to section 42-1701A(4), Idaho Code, of any final decision of the director following the hearing.

(b) The time for completion of works and application of the water to full beneficial use under any permit involving the diversion of more than twenty-five thousand (25,000) acre-feet in one (1) irrigation season for a project of no less than five thousand (5,000) acres may, upon application to the director of the department of water resources supported by a showing that additional time is needed on account of the time required for organizing, financing and constructing works of such large size, be extended by the director of the department of water resources for up to twelve (12) years beyond the initial development deadline contained in the permit, or beyond a grant of extension pursuant to the provisions of paragraph (a) of this subsection: Provided, that no such extension shall be granted unless the permit holder for such extension shall show that there has been actually expended toward the construction of said diversion, including expenditures for the purchase of rights-of-way and property in connection therewith, at least one hundred thousand dollars ($100,000).

(c) The time for completion of works and application of the water to full beneficial use under any permit involving the construction of a reservoir of more than ten thousand (10,000) acre-feet capacity or for the appropriation of water to be impounded in such reservoir of more than ten thousand (10,000) acre-feet capacity may be extended by the director of the department of water resources upon application to the director if the permit holder establishes that the permit holder has exercised reasonable diligence and that good cause exists for the requested extension.

(d) The time for completion of works and application of the water to full beneficial use under any permit involving the diversion of two (2) or more cubic feet per second or the development or cultivation of one hundred (100) or more acres of land may be extended by the director of the department of water resources upon application by the permit holder for an additional period up to ten (10) years beyond the initial development deadline contained in the permit, or beyond a grant of extension pursuant to the provisions of paragraph (a) of this subsection, provided the permit holder establishes that the permit holder has exercised reasonable diligence and that good cause exists for the requested extension.

(e) In connection with permits held by the United States, or the Idaho water resource board, whether acquired as the original applicant by assignment or otherwise, the director of the department of water resources may extend the time for completion of the works and application of the water to full beneficial use for such additional period or periods of time as the director may deem necessary upon an extension request supported by a showing that such additional time is required by reason of the status of plans, authorization, construction fund appropriations, construction, or any arrangements that are found to be requisite to completion of the construction of such works.

(f) In all other situations not governed by these provisions, the department may grant one (1) extension of time, not exceeding five (5) years beyond the date originally set for completion of works and application of the water to full beneficial use, or beyond any grant of extension pursuant to the provisions of paragraph (a) of this subsection, upon request for extension received on or before the date set for completion, provided good cause appears therefor.

History.

(6) Subject to the provisions for reinstatement as provided in section 42-218a, Idaho Code, a permit holder who fails to comply with the provisions of this section within the time or times specified shall be deemed to have relinquished all rights under its permit or, in the case of a permit held by a municipal provider for reasonably anticipated future needs, the permit holder shall be deemed to have relinquished all rights under any portion of the permit that has not previously been licensed or for which an incremental statement of completion showing proof of beneficial use has not been submitted. History.

1903, p. 223, § 2; am. 1905, p. 357, § 2; reen. R.C., § 3254; am. 1911, ch. 64, § 1, p. 184; am. 1915, ch. 133, § 1, p. 289; reen. C.L., § 3254; C.S., § 5570; am. 1923, ch. 135, § 1, p. 196; I.C.A.,§ 41-204; am. 1935, ch. 145, § 3, p. 353; am. 1941, ch. 161, § 1, p. 320; am. 1949, ch. 127, § 1, p. 222; am. 1963, ch. 214, § 1, p. 618; am. 1967, ch. 374, § 3, p. 1079; am. 1980, ch. 238, § 3, p. 526; am. 1982, ch. 62, § 1, p. 122; am. 1986, ch. 313, § 3, p. 763; am. 1989, ch. 96, § 1, p. 223; am. 2013, ch. 82, § 1, p. 201; am. 2020, ch. 164, § 1, p. 476.

STATUTORY NOTES

Cross References.

Cancellation of permits,§§ 42-208, 42-301 et seq.

Department of water resources,§ 42-1701 et seq.

Amendments.

The 2013 amendment, by ch. 82, in subsection (1), inserted “by state, county, city or other local government permitting or administrative action or process related to the applicant’s land or water development” near the middle and “or in any subsequent grant of extension pursuant to subsection (2), (3), (4) or (6) of this section” near the end; in subsection (2), substituted “for up to twelve (12) years beyond the initial development deadline contained in the permit” for “for an additional period of seven (7) years, but not to exceed twelve (12) years in all from the date of permit” and inserted “or beyond a grant of extension pursuant to the provisions of subsection (1) of this section”; added subsection (4) and redesignated the subsequent subsections accordingly; and inserted “or beyond a grant of extension pursuant to the provisions of subsection (1) of this section.”

The 2020 amendment, by ch. 164, rewrote the section to the extent that a detailed comparison is impracticable.

Effective Dates.

Section 2 of S.L. 1963, ch. 214 declared an emergency. Approved March 25, 1963.

Section 2 of S.L. 1982, ch. 62 declared an emergency. Approved March 15, 1982.

Section 2 of S.L. 2013, ch. 82 provided: “An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval regarding all permits pending before the Idaho department of water resources. Permits pending before the department are entitled to the maximum qualifying extension available pursuant to the provisions of section 42-204, Idaho Code, regardless of whether the permittee received a prior extension under section 42-204(6), Idaho Code.” Approved March 15, 2013.

CASE NOTES

Action at Law.

Holders of subsequent permits, upon a proper showing, are entitled to judgment in action at law canceling prior permits issued without statutory compliance, when state engineer (department of reclamation) refuses to cancel such permits. Clark v. Hansen, 35 Idaho 449, 206 P. 808 (1922).

Applicable to United States.

Restrictive five-year requirement for completion of irrigation appropriations was binding on United States, public waters not being governed, in this respect, by same principle applicable to public lands. Pioneer Irrigation Dist. v. American Ditch Ass’n, 50 Idaho 732, 1 P.2d 196 (1931).

Constitutionality.

Even if some provisions of an amendment of this section were unconstitutional, the district court should not have dismissed the action, but should have proceeded under the prior valid statute and such portion of the amendment as could be held valid. Such a proceeding would not be an action for a declaratory judgment, and the court could not pass upon the question of unconstitutionality until presented in a cause demanding rulings thereon. Twin Falls Canal Co. v. Huff, 58 Idaho 587, 76 P.2d 923 (1938).

The provisions of this section granting to persons or corporations owning irrigation systems covering more than 25,000 acres additional time in which to apply diverted water to beneficial use are not unconstitutional class legislation. Keller v. Magic Water Co., 92 Idaho 276, 441 P.2d 725 (1968).

Conveyance of Water Right.

Effect of Permit.

Water right is real estate and must be conveyed as real estate, and where one had a valid water permit issued to him by state engineer (department of water resources) he could not convey water right secured thereby by simply handing permit to would-be purchaser. Gard v. Thompson, 21 Idaho 485, 123 P. 497 (1912). Effect of Permit.

Permit is not an appropriation of the public waters of state, but is the consent of state given in manner provided by law to construct and acquire real property, and it gives applicant an inchoate right, which will ripen into a legal and complete appropriation only upon completion of works and application of water to a beneficial use. Speer v. Stephenson, 16 Idaho 707, 102 P. 365 (1909); Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 125 P. 208 (1912); Basinger v. Taylor, 30 Idaho 289, 164 P. 522 (1917).

Mere fact that state engineer (department of water resources) grants permit in no way confers any right to enter upon private land for the purpose of making appropriation. Marshall v. Niagara Springs Orchard Co., 22 Idaho 144, 125 P. 208 (1912).

Granting of permit secures no rights to holder, but compliance with conditions of permit initiates right to use water, which right becomes vested and dates back to the issuance of permit. Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073 (1915).

Necessity of Compliance.

Total failure to commence work within time provided in permit, or to complete one fifth of work in limited time, cannot be cured by extending time for making proof of beneficial use of water so attempted to be appropriated. Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073 (1915).

Trespass.

In order to initiate right to appropriate water under this section at a point upon land belonging to state, if it is necessary for applicant to enter upon land owned by state for purpose of making necessary examination, surveys, maps and plans required in order to make a proper application to state engineer (department of water resources) for a permit, by so entering, such party would be a trespasser upon said land, under R. C., § 1578. Tobey v. Bridgewood, 22 Idaho 566, 127 P. 178 (1912), overruled on other grounds, Idaho-Iowa Lateral & Reservoir Co. v. Fisher, 27 Idaho 695, 151 P. 998 (1915).

Where necessary data can be furnished from observation or survey made beyond the premises where the diversion is to take place, there is no trespass, since trespass must be physical, not merely mental. Idaho Power Co. v. Buhl, 62 Idaho 351, 111 P.2d 1088 (1941).

Unsatisfactory Permit Conditions.

If a permittee finds the conditions imposed on an amendment to a water permit to be unsatisfactory, the permittee shall be allowed to withdraw the application and be left with what the permittee had before submitting the application to the Idaho Department of Water Resources (IDWR). Hardy v. Higginson, 123 Idaho 485, 849 P.2d 946 (1993).

Vested Rights.

State engineer (department of water resources), by granting subsequent water permit, cannot interfere in any manner with vested rights of prior appropriators. Lockwood v. Freeman, 15 Idaho 395, 98 P. 295 (1908); Nielson v. Parker, 19 Idaho 727, 115 P. 488 (1911); Gard v. Thompson, 21 Idaho 485, 123 P. 497 (1912).

Vesting of Rights.

Cited

Shokal v. Dunn, 109 Idaho 330, 707 P.2d 441 (1985).

§ 42-205. Issuance of permit — Restrictions — Preference.

No permit shall be issued by the department of water resources of the state of Idaho, for the appropriation of water for power purposes, nor shall any such permit be assigned, transferred, mortgaged, sold or conveyed to any person, firm or corporation except in accordance with the provisions of this act.
Water cannot be appropriated for hydropower development uses within or using existing man-made irrigation facilities without the permission of the owner thereof.
When competing applications for a permit have been filed prior to the effective date of this act for the additional use for hydropower purposes that would utilize facilities that are owned or controlled by the holder of an existing water permit, license, decree, or established constitutional water usage, the director shall give preference to the application of the owner of the existing rights or his agent.

History.

1937, ch. 142, § 1, p. 233; am. 1947, ch. 66, § 1, p. 106; am. 1981, ch. 206, § 1, p. 371.

STATUTORY NOTES

Compiler’s Notes.

The phrase “the effective date of this act” in subsection (3) refers to the effective date of S.L. 1981, chapter 206, which was effective April 1, 1981.

The words “this act” at the end of subsection (1) refer to S.L. 1937, chapter 142, as amended by S.L. 1947, chapter 66, which is compiled herein as§§ 42-205 to 42-210.

Effective Dates.

Section 2 of S.L. 1981, ch. 206 declared an emergency. Approved April 1, 1981.

§ 42-206. Residence a requisite for issuance.

No permit to appropriate water for power purposes in the state of Idaho shall hereafter be granted to any person or association of persons not an actual bona fide resident or residents of the state of Idaho, nor to any corporation or partnership unless organized or qualified to do business in and under the laws of the state of Idaho.

History.

1937, ch. 142, § 2, p. 233; am. 1947, ch. 66, § 2, p. 106; am. 1986, ch. 217, § 1, p. 553.

§ 42-207. Sale, transfer, assignment or mortgage of permit.

Whenever the holder of a permit to appropriate water for power purposes within the state of Idaho, desires to sell, assign, transfer or mortgage such permit so held by him, he shall file with the director of the department of water resources a copy of the deed, bill of sale, assignment, mortgage or other document of transfer, together with such proof as the director of the department of water resources may require that the new owner, holder or assignee of such permit, or the mortgagee, or one or more of the trustees under any mortgage trust indenture, possesses the qualifications set forth in section 42-206[, Idaho Code], and that such transfer is made in good faith, and not for purposes of speculation or delay; and the sale, transfer, assignment or mortgaging of any such permit except as herein provided shall be void, it being the express intention of the legislature to prohibit the transfer of permits to appropriate water for power purposes by mortgaging the same or otherwise, except in accordance with the provisions of this act.

History.

1937, ch. 142, § 3, p. 233; am. 1947, ch. 66, § 3, p. 106.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion near the middle of the section was added by the compiler to conform to the statutory citation style.

1937, ch. 142, § 6, p. 233.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” near the middle of the section refer to S.L. 1937, chapter 142, which is compiled as§§ 42-205 to 42-210.

§ 42-211. Amended application or permit — Appeals.

Whenever a permit has been issued pursuant to the provisions of this act, and the permit holder desires to change the place, period, or nature of the intended use, or make other substantial changes in the method of diversion or proposed use or uses of the water, he shall file an application for amendment upon forms to be furnished by the department of water resources together with the statutory fee for filing and recording same, and upon receipt thereof it shall be the duty of the department of water resources to examine same and if approval thereof would not result in the diversion and use of more water than originally permitted and if the rights of others will not be adversely affected thereby, the director of the department of water resources shall approve said application and return an approved copy to the permit holder. The director of the department of water resources shall give such notice to other affected water users as he deems appropriate and may grant the amendment, in whole or in part or upon conditions, or may deny same. Notice of partial approval or conditions or denial of an amendment shall be forwarded to the applicant by certified mail and shall be subject to judicial review as hereafter provided. The priority of the right established pursuant to a permit which has been amended under these provisions shall date from the date of the original application for permit, provided the permit holder has complied with other provisions of this act.

In connection with any application on which permit has not been issued, amendments may be made by indorsement by the applicant or his agent on the original application, which indorsement shall be initialed and dated. If the amendment will result in the use of more water than originally asked, the priority of the right shall be changed to the date of said amendment. The applicant shall also be required to pay any additional filing fee as a result of an amendment of the rate of diversion or volume of storage requested in such amended application. If amendment is made after publication of notice of the original application, said notice shall be republished following amendment, upon payment by the applicant of the statutory fee for republication as in this act provided.

The notice shall be published in the same manner as provided by section 42-203 [42-203A], Idaho Code, for publication of notice of an application for permit. Protests to the application for amendment may be filed with and heard by the director in the same manner as provided by section 42-203 [42-203A], Idaho Code, for protests to an application for a permit.

If a protest is filed and a hearing on the protest held, any person aggrieved by the final decision of the director following the hearing may seek judicial review thereof pursuant to section 42-1701A(4), Idaho Code.

History.

If no protest is filed and the director grants the amendment in part or on conditions or rejects the amendment without a hearing, the applicant may request a hearing pursuant to section 42-1701A(3), Idaho Code, for the purpose of contesting the action of the director and following the hearing and the issuance of a final decision by the director may seek judicial review thereof pursuant to section 42-1701A(4), Idaho Code. History.

1907, p. 314, § 1; reen. R. C. & C. L., § 3255; C. S., § 5571; I. C. A.,§ 41-205; am. 1967, ch. 374, § 4, p. 1079; am. 1980, ch. 238, § 4, p. 526.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” at the beginning and end of the first paragraph and near the end of the second paragraph refer to S.L. 1967, chapter 374, which is codified as§§ 42-202, 42-203A, 42-204, 42-211, 42-217, 42-218, 42-218a, 42-219, and 42-221. The reference probably should be to “this chapter,” being chapter 2, title 42, Idaho Code.

The bracketed references “42-203A” in the third paragraph of this section were inserted by the compiler since§ 42-203 was amended and redesignated as §42-203A by S.L. 1985, ch. 17, § 1.

CASE NOTES

Changing Point of Diversion.

It was error for the district court to enjoin landowners from changing the point of diversion of water from a well located on one section of land owned by them to another section of their land, where such owners had filed a proper application for such change with the state reclamation engineer (now the director of the department of water resources), who declined to hear or process the application. State ex rel. Tappan v. Smith, 92 Idaho 451, 444 P.2d 412 (1968).

List of Lands.

Amendment of list of lands to be reclaimed is properly allowed where rights of others are not adversely affected and no additional water is claimed. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Public Interest.

Standing to Contest Change.

Under§ 42-203A, any application to appropriate water in Idaho is subject to the local public interest standard. Likewise, any change to a water right under§ 42-222 is also subject to a determination that the change is in the local public interest as stated in§ 42-203A; as is an amendment to a water permit under this section. Hardy v. Higginson, 123 Idaho 485, 849 P.2d 946 (1993). Standing to Contest Change.

Unsatisfactory Permit Conditions.

Cited

Shokal v. Dunn, 109 Idaho 330, 707 P.2d 441 (1985).

§ 42-212. Diversion of private waters.

The department of water resources is hereby prohibited from issuing or granting permits to divert or appropriate the waters of any lake not exceeding five (5) acres in surface area at highwater mark, pond, pool or spring in this state, which is located or situated wholly or entirely upon the lands of a person or corporation, except to the person or corporation owning said land, or with his or its written permission, executed and acknowledged as required for the conveyance of real estate.

History.

1911, ch. 230, § 1, p. 782; reen. C.L., § 3255a; C.S., § 5572; I.C.A.,§ 41-206.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Percolating Waters.

This section is statutory recognition of private ownership in certain waters, and that right to percolating waters cannot be taken from owner of fee without compensation. Public Utils. Comm’n v. Natatorium Co., 36 Idaho 287, 211 P. 533 (1922).

Private Waters.

Where waters of creek consisted primarily of spring runoff which arose in the mountains on U.S. government property, and where but for farmer’s actions of capturing those waters and putting them to use on his farmland the stream would have flowed into a river, the creek was not a private stream within the definition of this section. Olson v. Bedke, 97 Idaho 825, 555 P.2d 156 (1976).

Spring Waters.

Notwithstanding this section, it is well settled that waters of natural springs which form a natural stream or streams flowing off of the premises on which they arise are public waters, subject to acquirement by appropriation, diversion and application to beneficial use. Jones v. McIntire, 60 Idaho 338, 91 P.2d 373 (1939); Maher v. Gentry, 67 Idaho 559, 186 P.2d 870 (1947); Nordick v. Sorensen, 81 Idaho 117, 338 P.2d 766 (1959). The waters of spring on land where they arose and sank were private waters and owner of adjoining land had no right to the use of same in absence of a showing of strict compliance with this section. Maher v. Gentry, 67 Idaho 559, 186 P.2d 870 (1947).

Water from Mine Portal.

An open flow of water emanating from a mine portal which would not exist absent development of the mine was not nonappropriable private water as defined by this section. Branson v. Miracle, 107 Idaho 221, 687 P.2d 1348 (1984).

Issue which had previously been litigated concerning whether or not water which flowed from mine tunnel on parties’ property was private or public water was not subject to further review in subsequent action and owners of land were collaterally estopped from raising it. Branson v. Higginson, 128 Idaho 274, 912 P.2d 642 (1996).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

ALR.

§ 42-213. Diversion of private waters — Applicants must show right of way.

All applications to the department of water resources for permits to divert or appropriate the waters of any lake, pond, pool or spring shall state whether such lake, pond, pool or spring is wholly or entirely upon the land of any person or corporation other than the applicant, and, in the event that it is, such application shall state that the applicant has the written permission from such owner, executed and acknowledged as required by the provisions of the preceding section to divert or appropriate such water.

History.

1911, ch. 230, § 2, p. 783; reen. C.L., § 3255b; C.S., § 5573; I.C.A.,§ 41-207.

STATUTORY NOTES

Compiler’s Notes.

§ 42-214 — 42-216. Proof of completion — Department of reclamation to report on work — Issuance of certificate — Appeal from department’s decision. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

These sections, which comprised 1903, p. 223, §§ 4 to 6; reen. R.C., §§ 3257 to 3259; am. 1913, ch. 144, § 1, p. 509; am. 1913, ch. 83, § 1, p. 340; reen. C.L., §§ 3257 to 3259; C.S., §§ 5574 to 5576; I.C.A.,§§ 41-208 to 41-210, were repealed by S.L. 1967, ch. 374, §§ 5 to 7.

§ 42-217. Proof of application to beneficial use.

On or before the date set for the beneficial use of waters appropriated under the provisions of this chapter, or the date set for submission of an incremental statement of completion showing proof of beneficial use, the permit holder shall submit a statement on a form furnished by the department of water resources that the permit holder has used such water for the beneficial purpose allowed by the permit. The statement shall include:
1. The name and post office address of the permit holder;
2. The permit number;
3. A description of the extent of the use;
4. In the case of a municipal provider, a description of the current service area;
5. The source of the water used; and
6. Such other information as shall be required by the department’s form.
Such written statement shall include fees as provided in subsection K. of section 42-221, Idaho Code, or a field examination report prepared by a certified water right examiner. For permits held by a municipal provider for reasonably anticipated future needs, such statements shall be provided in accordance with section 42-204(4), Idaho Code.
Upon receipt of such written statement and the fee as required in section 42-221, Idaho Code, the department shall examine, or cause to be examined:
1. The place where such water is diverted and used and, if the use is for irrigation, the area and location of the land irrigated and the nature of all the improvements which have been made as a direct result of such use.
2. The capacities of the ditches or canals or other means by which such water is conducted to such place of use and the quantity of water that has been beneficially applied for irrigation or other purposes.
The department or the person making such examination under the direction of the department shall prepare and file a report of the investigation: provided, that whenever an irrigation project is developed in the name of an association, company, corporation, irrigation district or the United States as provided in section 42-219, Idaho Code, proof of beneficial use shall be made by the permit holder. The lands upon which the water has been used need not be described by legal subdivisions, but may be described as provided in section 42-219, Idaho Code, and it shall only be necessary to show in such cases that the quantity of water beneficially applied for irrigation has been applied within the limits of the project.

History.

1903, p. 223, § 7; reen. R.C., § 3260; am. 1913, ch. 36, § 1, p. 134; am. 1915, ch. 94, § 1, p. 216; reen. C.L., § 3260; C.S., § 5577; I.C.A.,§ 41-211; am. 1967, ch. 374, § 8, p. 1079; am. 1979, ch. 138, § 1, p. 434; am. 1986, ch. 242, § 1, p. 657; am. 1996, ch. 297, § 3, p. 967; am. 1998, ch. 332, § 1, p. 1065; am. 2020, ch. 164, § 2, p. 476.

STATUTORY NOTES

Amendments.

The 2020 amendment, by ch. 164, rewrote the section to the extent that a detailed comparison is impracticable.

Effective Dates.

Section 5 of S.L. 1998, ch. 332 declared an emergency. Approved March 25, 1998.

CASE NOTES

Beneficial Use.

Federal Law.

Proof of Use Inadmissible.

Where it appeared that an irrigation district failed to prove the issuance of a permit by the state engineer (department of water resources), or a compliance with the terms of such a permit, as it has alleged in its pleading, it was not permitted to prove the beneficial use of an additional amount of water. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936).

Vesting of Rights.

Cited

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

C.J.S.

§ 42-217a. Certified water right examiner.

The director shall adopt all necessary rules and regulations setting forth the procedures and requirements for qualification of licensed professional engineers or geologists to become certified water right examiners.

An initial application fee of two hundred dollars ($200) shall be paid by those applying for certification with an annual renewal fee of fifty dollars ($50.00). All certificates of appointment shall expire on March 31 of each year and thereafter are void unless renewed. The fees collected shall be transmitted to the state treasurer for deposit in the water administration account.

Employees of the department shall be exempt from the requirements of this section.

History.

I.C.,§ 42-217a, as added by 1987, ch. 97, § 1, p. 192.

STATUTORY NOTES

Cross References.

State treasurer,§ 67-1201 et seq.

Water administration account,§ 42-238a.

§ 42-218. Proof of application to beneficial use — Extension of time.

Whenever a less period of time than the maximum prescribed in section 42-204[, Idaho Code,] has been granted by the department of water resources for making proof of beneficial use, upon a satisfactory showing being made by the permit holder, the department can extend the time for making such proof of beneficial use, but in no case shall such extension or extensions, including the original time granted, exceed the maximum prescribed in section 42-204[, Idaho Code]. The department shall grant no extension unless the application therefor be filed with it prior to the date upon which the proof of beneficial use was required to be made under the original terms of the permit.

History.

1913, ch. 47, § 1, p. 154; am. by implication, 1915, ch. 94, § 1, p. 216; adding a proviso extending the maximum period of ten years in some cases; compiled and reen. C.L., § 3260a; C.S., § 5578; I.C.A.,§ 41-212; am. 1967, ch. 374, § 9, p. 1079.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertions were added by the compiler to conform to the statutory citation style.

§ 42-218a. Lapse of application for failure to request extension or submit proof of application to beneficial use — Notice of lapsing.

A permit upon which the proof of beneficial use, or an incremental statement of completion showing proof of beneficial use, has not been submitted, or a request for extension of time has not been received on or before the date set for such proof or incremental statement, shall lapse and be of no further force nor effect. For a permit held by a municipal provider for reasonably anticipated future needs, such lapse shall not apply to any portion of the permit that has been previously licensed or for which an incremental statement of completion showing proof of beneficial use has been submitted. Notice of said lapsing shall be sent by the department to the permit holder at the address of record by regular mail.
Within sixty (60) days after such notice of lapsing, the department may, upon a showing of reasonable cause, reinstate the permit with the priority date advanced a time equal to the number of days that said showing is subsequent to the date set for proof.
In connection with a proof of beneficial use statement submitted more than sixty (60) days after such notice of lapsing, the director shall require all of the following items to be submitted to the department:
1. A report prepared by a certified water right examiner as the result of an examination to clearly confirm and establish the extent of the beneficial use of water established in connection with the permit during the time authorized by the permit and any extensions of time previously approved. The report shall be on the form or forms specified by the director and shall provide the information specified in section 42-217, Idaho Code, for confirming beneficial use and such other information as may be required by the director.
2. A statement of reasonable cause for filing a late proof of beneficial use.
3. A reinstatement fee of two hundred fifty dollars ($250).
The original priority date of a lapsed permit shall not be reinstated except upon a showing of error or mistake of the department.

Upon finding that beneficial use had occurred during the authorized period and upon a showing of reasonable cause for filing a late proof of beneficial use, the director may reinstate the permit with the priority date advanced to the day that proof of beneficial use was received.

History.

I.C.,§ 42-218a, as added by 1967, ch. 374, § 10, p. 1079; am. 1983, ch. 157, § 1, p. 435; am. 2011, ch. 171, § 1, p. 490; am. 2020, ch. 164, § 3, p. 476.

STATUTORY NOTES

Amendments.

The 2011 amendment, by ch. 171, in the first paragraph, substituted “permit holder” for “applicant” and deleted “provided” from the end; and rewrote subsection (2), which formerly read: “That upon receipt of proof of beneficial use after sixty (60) days after such notice of lapsing, the director shall require sufficient evidence to be submitted by the permit holder to clearly establish the extent of beneficial use made during the time authorized by the permit and any extensions of time previously approved. Upon finding that beneficial use had occurred during the authorized period and upon a showing of reasonable cause for filing a late proof of beneficial use, the director may reinstate the permit with the priority date advanced to the day that proof of beneficial use was received.” The 2020 amendment, by ch. 164, designated the introductory paragraph as subsection (1); redesignated former subsections (1) to (3) as present subsections (2) to (4); and rewrote present subsection (1), which formerly read: “A permit upon which the proof of beneficial use has not been submitted, or a request for extension of time has not been received on or before the date set for such proof, shall lapse and be of no further force nor effect. Notice of said lapsing shall be sent by the department to the permit holder at the address of record by regular mail.”

Effective Dates.

Section 2 of S.L. 1983, ch. 157 declared an emergency. Approved April 8, 1983.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

§ 42-219. Issuance of license — Priority.

Upon receipt by the department of water resources of all the evidence in relation to such final proof, it shall be the duty of the department to carefully examine the same, and if the department is satisfied that the law has been fully complied with and that the water is being used at the place claimed and for the purpose for which it was originally intended, the department shall issue to such user or users a license corresponding to the beneficial use. Such license shall state the name and post office address of such user, the purpose for which such water is used and the quantity of water that may be used, which in no case shall be an amount in excess of the amount that has been beneficially applied. For permits held by a municipal provider for reasonably anticipated future needs, a license may be issued incrementally for an amount corresponding to the beneficial use demonstrated to the satisfaction of the department in each incremental statement of completion showing proof of beneficial use submitted pursuant to section 42-204(4), Idaho Code, which amount, together with any previously licensed portion of said permit, shall not exceed the initial quantity authorized under the permit. The final incremental license at the end of the planning horizon shall be issued for an amount corresponding to the beneficial use. The director shall condition the license to prohibit any transfer of the place of use outside the service area, as defined in section 42-202B, Idaho Code, or to a new nature of use of amounts held for reasonably anticipated future needs together with such other conditions as the director may deem appropriate.
If such use is for irrigation, such license shall give a description, by legal subdivisions, of the land irrigated by such water, except that the general description of a place of use described in accordance with subsection (5) or (6) of this section may be described using a digital boundary, as defined in section 42-202B, Idaho Code. If the use is for municipal purposes, the license shall describe the service area as provided in section 42-202B(9), Idaho Code.
Such license shall bear the date of the application for, and the number of, the permit under which the works from which such water is taken were constructed, the date when proof of beneficial use of such water was made, and also the date of the priority of the right confirmed by such license.
The date of priority confirmed by the license shall be the date of the application for the permit for the construction of the works from which the water is taken, and to which the right relates, provided there has been no loss of priority under the provisions of this chapter. Whenever proof of the beneficial application of water shall be offered subsequent to the date stated in the permit, or in any authorized extension thereof, when such beneficial application shall be made, the proof shall be taken, if received by the department within the sixty (60) days prescribed in the preceding section. If the proof taken is satisfactory to the department of water resources, a license shall be issued by the department the same as though proof had been made before the date fixed for such beneficial application. The priority of the right established by the proof shall not date back to the date of the application for the permit to which the right would relate under the provisions of this chapter, but shall bear a date subsequent to the date of the application, a time equal to the difference between the date set in the permit, or extension thereof, for such beneficial application of water and the date of proof. (5) For irrigation projects where the canals constructed cover an area of twenty-five thousand (25,000) acres or more, or within irrigation districts organized and existing as such under the laws of the state of Idaho, the license issued shall be issued to the persons, association, company, corporation or irrigation district owning the project, and final proof may be made by such owners for the benefit of the entire project. It shall not be necessary to give a description of the land by legal subdivisions, but a general description of the entire area under the canal system shall be sufficient. The water diverted and the water right acquired thereby shall relate to the entire project, and the diversion of the water for the beneficial use under the project shall be sufficient proof of beneficial use without regard as to whether each and every acre under the project is irrigated or not.

(6) For an irrigation project developed under a permit held by an association, company, corporation or the United States to divert and deliver or distribute surface water under any annual charge or rental for beneficial use by more than five (5) water users in an area of less than twenty-five thousand (25,000) acres, the license issued shall be issued to the permit holder. For the place of use description in the license issued for the irrigation project, it shall be sufficient to provide a general description of the area within which the total number of acres developed under the permit are located and within which the location of the licensed acreage can be moved provided there is no injury to other water rights.

(7) Subject to other governing law, the location of the acreage irrigated within a generally described place of use, as defined in accordance with subsections (5) and (6) of this section and as filed with the department pursuant to section 43-323, Idaho Code, may be changed without approval under the provisions of section 42-222, Idaho Code. However, the change shall not result in an increase in either the rate of flow diverted or in the total number of acres irrigated under the water right and shall cause no injury to other water rights. If the holder of any water right seeks to challenge such a change, the challenge may be brought only as an action initiating a contested case before the department, pursuant to the administrative procedure act, chapter 52, title 67, Idaho Code. Nothing in this section shall be construed to grant, deny or otherwise affect an irrigation district’s authority to deliver water to areas outside the boundaries of such district.

(8) In the event that the department shall find that the applicant has not fully complied with the law and the conditions of permit, it may issue a license for that portion of the use that is in accordance with the permit or may refuse issuance of a license and void the permit. Notice of such action shall be forwarded to the permit holder by certified mail. The applicant may contest such action by the department pursuant to section 42-1701A(3), Idaho Code.

History.

1903, p. 233, § 8; reen. R. C., § 3261; modified by 1913, ch. 47, § 1, p. 154, and 1915, ch. 94, § 2, p. 216; compiled and reen. C. L., § 3261; C. S., § 5579; am. 1925, ch. 44, § 1, p. 61; I. C. A., § 41-213; am. 1967, ch. 374, § 11, p. 1079; am. 1980, ch. 238, § 5, p. 526; am. 1996, ch. 297, § 4, p. 967; am. 1998, ch. 332, § 2, p. 1065; am. 2002, ch. 306, § 2, p. 870; am. 2011, ch. 210, § 1, p. 591; am. 2020, ch. 164, § 4, p. 476. STATUTORY NOTES

Amendments.

The 2011 amendment, by ch. 210, in the second sentence in subsection (1), deleted “shall be issued under the seal of the office of the department of water resources, and” following “Such license”; and, in subsection (3), deleted “the capacity of such works” following “constructed.”

The 2020 amendment, by ch. 164, rewrote subsection (1) and rewrote the last sentence in subsection (2), which formerly read: “If the use is for municipal purposes, the license shall describe the service area and shall state the planning horizon for that portion of the right, if any, to be used for reasonably anticipated future needs.”

Effective Dates.

Section 5 of S.L. 1998, ch. 332 declared an emergency. Approved March 25, 1998.

CASE NOTES

Beneficial Use.

Doctrine of Relation.

Doctrine of relation as to priority of appropriation cannot be invoked until final consummation of appropriation as defined by statute, and can be invoked only to extent of completion of appropriation. Basinger v. Taylor, 30 Idaho 289, 164 P. 522 (1917).

Federal Law.

The federal power act does preempt some state laws relating to the building of dams on navigable streams, and it particularly preempts those state laws which require a state license as a predicate for building a dam; however, state law regarding proprietary rights in water is expressly saved. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

Mutual Irrigation Company.

It was error to grant an investor summary judgment holding that the investor acquired shares in a mutual irrigation company, when the investor acquired land in the company’s boundaries, due to the shares being an appurtenance to the acquired land, because (1) the court did not consider the company’s governing documents, which did not “locate” the shares, or how the company acquired underlying water rights, and (2) the shares were not attached to specific tracts, as the water right had to be read as appurtenant to “any and all” acres within the company’s boundaries. Eagle Creek Irrigation Co. v. A.C.& C.E. Invs., Inc., 165 Idaho 467, 447 P.3d 915 (2019).

Priority Date Right Not Vested.

The filing of an application for a water appropriation permit establishes the priority date of the appropriation under the relation back doctrine, but any such priority date right is nonetheless contingent upon future statutory adherence and issuance of a license pursuant to this section and is therefore not a vested right which would preclude application of§ 42-203, as amended in 1978 (now§ 42-203A), to a permit application filed prior to that amendment. Hidden Springs Trout Ranch, Inc. v. Allred, 102 Idaho 623, 636 P.2d 745 (1981).

Subordinated Rights.

When the federal power commission (now federal energy regulatory commission) authorized the obtention of only subordinated state water rights, and where, the state and the licensee power company both intended the subordination of those water rights, failure to include a subordination clause in the state water licenses did not render those rights unsubordinated. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

Time of Issuance.

Under Idaho law, a water license does not issue until after the diversion works are completed and the water is applied to a beneficial use, albeit an application or license can be made prior to actual construction. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

Use of Water.

In order to warrant issuance of license, it must appear that water is being used at place claimed, and for purposes for which it was originally intended. Basinger v. Taylor, 36 Idaho 591, 211 P. 1085 (1922).

Vesting of Rights.

Cited

Vineyard Land & Stock Co. v. Twin Falls Salmon River Land & Water Co., 245 F. 9 (9th Cir. 1917); Vineyard Land & Stock Co. v. Twin Falls Oakley Land & Water Co., 245 F. 30 (9th Cir. 1917); Idaho Power & Transp. Co. v. Stephenson, 16 Idaho 418, 101 P. 821 (1909); Speer v. Stephenson, 16 Idaho 707, 102 P. 365 (1909); Newport Water Co. v. Kellogg, 31 Idaho 574, 174 P. 602 (1918).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

§ 42-220. Effect of license.

Water right licenses shall be binding upon the state as to the right of such licensee to use the amount of water mentioned therein and shall be prima facie evidence as to such right; and all rights to water confirmed under the provisions of this chapter, or by any decree of court, shall become appurtenant to, and shall pass with a conveyance of, the land for which the right of use is granted. The right to continue the beneficial use of such waters shall never be denied nor prevented for any cause other than the failure, on the part of the user or holder of such right, to pay the ordinary charges or assessments which may be made or levied to cover the expenses for the delivery or distribution of such water, or for other reasons set forth in this title: provided, that when water is used for irrigation, no such license or decree of the court allotting such water shall be issued confirming the right to the use of more than one (1) second foot of water for each fifty (50) acres of land so irrigated, unless it can be shown to the satisfaction of the department of water resources in granting such license, and to the court in making such decree, that a greater amount is necessary, and neither such licensee nor anyone claiming a right under such decree, shall at any time be entitled to the use of more water than can be beneficially applied on the lands for the benefit of which such right may have been confirmed, and the right to the use of such water confirmed by such license shall always be held subject to the local or community customs, rules and regulations which may be adopted from time to time by a majority of the users from a common source of supply, canal or lateral from which such water may be taken, when such rules or regulations have for their object the economical use of such water.

History.

1903, p. 223, § 9; 1905, p. 174, § 1; reen. R.C. & C.L., § 3262; C.S., § 5580; I.C.A.,§ 41-214; am. 2020, ch. 164, § 5, p. 476.

STATUTORY NOTES

Amendments.

The 2020 amendment, by ch. 164, substituted “Water right licenses” for “Such license” at the beginning of the first sentence.

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a). CASE NOTES

Beneficial Use.

In General.

The evidence was undisputed that the duty of water upon the 217 acres of land would be one inch to the acre in suit brought by plaintiff seeking to have decreed a prior right to the use of 125 miner’s inches for irrigation purposes of certain creek waters which plaintiffs alleged entitlement by reason of a prior decree. Nordick v. Sorensen, 81 Idaho 117, 338 P.2d 766 (1959).

Mutual Irrigation Company.

Prima Facie Evidence.

Water license is only prima facie evidence of water right. Basinger v. Taylor, 36 Idaho 591, 211 P. 1085 (1922).

Test of Necessary Amount.

The amount of water that a water user had been in the habit of using was not the true test of the duty of the water, but the test was the amount actually necessary for the beneficial purpose to which the water was to be applied. Graham v. Leek, 65 Idaho 279, 144 P.2d 475 (1943).

Waiver of Rights.

By obtaining issuance of license, licensee did not waive any rights he may previously have had through actual diversion and application to a beneficial use. Joyce v. Rubin, 23 Idaho 296, 130 P. 793 (1913); Newport Water Co. v. Kellogg, 31 Idaho 574, 174 P. 602 (1918).

Cited

Idaho Power & Transp. Co. v. Stephenson, 16 Idaho 418, 101 P. 821 (1909); Russell v. Irish, 20 Idaho 194, 118 P. 501 (1911); Peck v. Sharrow, 96 Idaho 512, 531 P.2d 1157 (1975); Crow v. Carlson, 107 Idaho 461, 690 P.2d 916 (1984); Feustel v. Stevenson, 119 Idaho 698, 809 P.2d 1177 (Ct. App. 1991).

OPINIONS OF ATTORNEY GENERAL

Ownership of Right.

Where a water right is owned by a person other than the underlying landowner, the landowner does not have the power to convey the water right; therefore, this section would not change the ownership of the water right — It would remain with the licensee.OAG 88-6.

§ 42-221. Fees of department.

The department of water resources shall collect the following fees, which shall constitute a fund to pay for legal advertising, the publication of public notices and for investigations, research, and providing public data as required of the department in the performance of its statutory duties:

For filing an application for a permit to appropriate the public waters of this state:
For filing an application for an extension of time within which to resume the use of water under a vested water right ............................... $100
For filing application for amendment of permit ............................... $100

For a quantity of 0.2 c.f.s. or less or for a storage volume of 20 acre feet or less ............................... $100
For a quantity greater than 0.2 c.f.s. but not exceeding 1.0 c.f.s. or for a storage volume greater than 20 acre feet but not exceeding 100 acre feet ............................... $250
For a quantity greater than 1.0 c.f.s. but not exceeding 20 c.f.s., or for a storage volume greater than 100 acre feet but not exceeding 2,000 acre feet ............................... $250
For a quantity greater than 20.0 c.f.s. but not exceeding 100 c.f.s. or for a storage volume greater than 2,000 acre feet but not exceeding 10,000 acre feet ............................... $1,010
For a quantity greater than 100.0 c.f.s. but not exceeding 500.0 c.f.s., or for a storage volume greater than 10,000 acre feet but not exceeding 50,000 acre feet ............................... $2,610
For a quantity greater than 500 c.f.s., or for a storage volume greater than 50,000 acre feet ............................... $6,610
For any application to change the nature of use of water under one (1) or more vested water right(s), an additional fee of $250 shall apply.
For an application to change only the legal description for the place of use or the point of diversion when there will be no physical change in the location of the place of use or the point of diversion and no unauthorized physical change in the location of the place of use or the point of diversion has occurred inconsistent with the decree, license or transfer defining the water right, the total filing fee shall be $50.00 per water right.

plus $40.00 for each additional c.f.s. or part thereof or 100 acre feet or part thereof over the first 1.0 c.f.s. or 100 acre feet.

plus $20.00 for each additional c.f.s. or part thereof or 100 acre feet or part thereof over the first 20.0 c.f.s. or 2,000 acre feet.

plus $10.00 for each additional c.f.s. or part thereof or 100 acre feet or part thereof over the first 100 c.f.s. or 10,000 acre feet.

plus $2.00 for each additional 1.0 c.f.s. or part thereof or 100 acre feet or part thereof over the first 500.0 c.f.s. or 50,000 acre feet.

D.1. For filing claim to use right under section 42-243, Idaho Code ............................... $100

2. For filing a late claim to use a water right under section 42-243, Idaho Code, where the date filed with the department of water resources or, the postmark if mailed to the department of water resources, is:

i. After June 30, 1998 ............................... $250

ii. After June 30, 2005 ............................... $500

iii. For every ten (10) years after June 30, 2005, an additional ............................... $500

E. For filing an assignment of permit ............................... $25.00

F. For readvertising application for permit, change, exchange, or extension to resume use ............................... $50.00 G. For certification, each document ............................... $1.00

H. For making photocopies of office records, maps and documents for

public use ............................... A reasonable charge as determined by the department.

I. For filing request for extension of time within which to submit proof of beneficial use on a water right permit ............................... $50.00

J. For tasks requiring in excess of one (1) hour research or for computerized data provided for public use ...............................

............................... A reasonable charge as determined by the department.

K. For filing proof of beneficial use of water and requests for water right license examinations, a fee based upon the rate of diversion claimed in the proof of beneficial use:

1. For a quantity of 0.2 c.f.s. or less, or for a storage volume of 20 acre feet or less ............................... $50.00

except no fee shall be charged for domestic use for which a permit is not required.

2. For a quantity greater than 0.2 c.f.s. but not exceeding 1.0 c.f.s., or for a storage volume greater than 20 acre feet, but not exceeding 100 acre feet ............................... $100

3. For a quantity greater than 1.0 c.f.s., or for a storage volume greater than 100 acre feet ............................... $100

plus $25.00 for each additional c.f.s. or part thereof, or 100 acre feet or part thereof, over the first 1.0 c.f.s. or 100 acre feet with a maximum fee not to exceed $600.

L. For filing a protest or request to intervene in a protested matter ............................... $25.00

M. For filing an application to alter a stream channel pursuant to chapter 38, title 42, Idaho Code:

1. Application for recreational dredge permits by residents of the state ............................... $10.00

2. Application for recreational dredge permits by nonresidents of the state ............................... $30.00

3. Other applications ............................... $20.00

N. For receipt of all notices of application within a designated area, a reasonable annual charge as determined by the department.

O. For filing an application to change the point of diversion, place, period or nature of use of water under a vested water right:

1. For a quantity of 0.2 c.f.s. or less, or for a storage volume of 20 acre feet or less ............................... $200

2. For a quantity greater than 0.2 c.f.s. but not exceeding 1.0 c.f.s., or for a storage volume greater than 20 acre feet but not exceeding 100 acre feet ............................... $500

3. For a quantity greater than 1.0 c.f.s. but not exceeding 20 c.f.s., or for a storage volume greater than 100 acre feet but not exceeding 2,000 acre feet ............................... $500

plus $80.00 for each additional c.f.s. or part thereof or 100 acre feet or part thereof over the first 1.0 c.f.s. or 100 acre feet.

4. For a quantity greater than 20.0 c.f.s. but not exceeding 100 c.f.s., or for a storage volume greater than 2,000 acre feet but not exceeding 10,000 acre feet ............................... $2,020

plus $40.00 for each additional c.f.s. or part thereof or 100 acre feet or part thereof over the first 20.0 c.f.s. or 2,000 acre feet.

5. For a quantity greater than 100 c.f.s. but not exceeding 500 c.f.s., or for a storage volume greater than 10,000 acre feet but not exceeding 50,000 acre feet ............................... $5,220 plus $20.00 for each additional c.f.s. or part thereof or 100 acre feet or part thereof over the first 100 c.f.s. or 10,000 acre feet.

6. For a quantity greater than 500 c.f.s., or for a storage volume greater than 50,000 acre feet ............................... $13,220

plus $4.00 for each additional c.f.s. or part thereof or 100 acre feet or part thereof over the first 500 c.f.s. or 50,000 acre feet.

P. For filing a notice of land application of effluent as required by section 42-201(8), Idaho Code ............................... $150

All fees received by the department of water resources under the provisions of this chapter shall be transmitted to the state treasurer for deposit in the water administration account.

History.

1903, p. 223, § 10; am. 1905, p. 174, § 1; reen. R.C. & C.L., § 3263; C.S., § 5581; am. 1923, ch. 53, § 1, p. 60; I.C.A.,§ 41-215; am. 1941, ch. 116, § 1, p. 228; am. 1967, ch. 374, § 12, p. 1079; am. 1968 (2nd E.S.), ch. 25, § 1, p. 47; am. 1971, ch. 151, § 1, p. 750; am. 1978, ch. 143, § 1, p. 323; am. 1980, ch. 151, § 1, p. 320; am. 1981, ch. 147, § 2, p. 253; am. 1983, ch. 61, § 2, p. 141; am. 1985, ch. 226, § 1, p. 540; am. 1986, ch. 242, § 2, p. 657; am. 1986, ch. 313, § 4, p. 763; am 1990, ch. 319, § 2, p. 870; am. 1994, ch. 64, § 2, p. 121; am. 1997, ch. 305, § 1, p. 908; am. 1998, ch. 79, § 1, p. 282; am. 2000, ch. 177, § 1, p. 445; am. 2011, ch. 172, § 1, p. 491; am. 2012, ch. 218, § 2, p. 596; am. 2018, ch. 42, § 1, p. 104.

STATUTORY NOTES

Cross References.

State treasurer,§ 67-1201 et seq.

Water administration account,§ 42-238a.

Amendments.

The 2011 amendment, by ch. 172, in the introductory paragraph in subsection A., deleted “or an application to change the point of diversion, place, period or nature of use of water under a vested water right” from the end; in subsection C., substituted “$100” for “$50.00”; and added subsection O.

The 2012 amendment, by ch. 218, added subsection P.

The 2018 amendment, by ch. 42, added paragraph O.8.

Compiler’s Notes.

The “s” enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 3 of S.L. 1986, ch. 242 declared an emergency. Approved April 4, 1986.

Section 2 of S.L. 2000, ch. 177 provided that the act shall be in full force and effect on and after July 1, 2000.

CASE NOTES

Construction.

While conduit through which water user diverted water was not strictly a ditch or canal, nevertheless he was liable for fee based on capacity of his diversion works. Idaho Power & Transp. Co. v. Stephenson, 16 Idaho 418, 101 P. 821 (1909).

Cited

Beker Indus., Inc. v. Georgetown Irrigation Dist., 101 Idaho 187, 610 P.2d 546 (1980).

§ 42-222. Change in point of diversion, place of use, period of use, or nature of use of water under established rights — Forfeiture and extension — Appeals.

Any person, entitled to the use of water whether represented by license issued by the department of water resources, by claims to water rights by reason of diversion and application to a beneficial use as filed under the provisions of this chapter, or by decree of the court, who shall desire to change the point of diversion, place of use, period of use or nature of use of all or part of the water, under the right shall first make application to the department of water resources for approval of such change. Such application shall be upon forms furnished by the department and shall describe the right licensed, claimed or decreed which is to be changed and the changes which are proposed, and shall be accompanied by the statutory filing fee as in this chapter provided. Upon receipt of such application it shall be the duty of the director of the department of water resources to examine same, obtain any consent required in section 42-108, Idaho Code, and if otherwise proper to provide notice of the proposed change in a similar manner as applications under section 42-203A, Idaho Code. Such notice shall advise that anyone who desires to protest the proposed change shall file notice of protests with the department within ten (10) days of the last date of publication. Upon the receipt of any protest, accompanied by the statutory filing fee as provided in section 42-221, Idaho Code, it shall be the duty of the director of the department of water resources to investigate the same and to conduct a hearing thereon. He shall also advise the watermaster of the district in which such water is used of the proposed change and the watermaster shall notify the director of the department of water resources of his recommendation on the application, and the director of the department of water resources shall not finally determine the action on the application for change until he has received from such watermaster his recommendation thereof, which action of the watermaster shall be received and considered as other evidence. For applications proposing to change only the point of diversion or place of use of a water right in a manner that will not change the effect on the source for the right and any other hydraulically-connected sources from the effect resulting under the right as previously approved, and that will not affect the rights of other water users, the director of the department of water resources shall give only such notice to other users as he deems appropriate.
All rights to the use of water acquired under this chapter or otherwise shall be lost and forfeited by a failure for the term of five (5) years to apply it to the beneficial use for which it was appropriated and when any right to the use of water shall be lost through nonuse or forfeiture such rights to such water shall revert to the state and be again subject to appropriation under this chapter; except that any right to the use of water shall not be lost through forfeiture by the failure to apply the water to beneficial use under certain circumstances as specified in section 42-223, Idaho Code. The party asserting that a water right has been forfeited has the burden of proving the forfeiture by clear and convincing evidence.
Upon proper showing before the director of the department of water resources of good and sufficient reason for nonapplication to beneficial use of such water for such term of five (5) years, the director of the department of water resources is hereby authorized to grant an extension of time extending the time for forfeiture of title for nonuse thereof, to such waters for a period of not to exceed five (5) additional years. (4) Application for an extension shall be made before the end of the five (5) year period upon forms to be furnished by the department of water resources and shall fully describe the right on which an extension of time to resume the use is requested and the reasons for such nonuse and shall be accompanied by the statutory filing fee; provided that water rights protected from forfeiture under the provisions of section 42-223, Idaho Code, are exempt from this requirement.
1. Upon the receipt of such application it shall be the duty of the director of the department of water resources to examine the same and to provide notice of the application for an extension in the same manner as applications under section 42-203A, Idaho Code. The notice shall fully describe the right, the extension which is requested and the reason for such nonuse and shall state that any person desiring to object to the requested extension may submit a protest, accompanied by the statutory filing fee as provided in section 42-221, Idaho Code, to the director of the department of water resources within ten (10) days of the last date of publication.
2. Upon receipt of a protest it shall be the duty of the director of the department of water resources to investigate and conduct a hearing thereon as in this chapter provided.
3. The director of the department of water resources shall find from the evidence presented in any hearing, or from information available to the department, the reasons for such nonuse of water and where it appears to the satisfaction of the director of the department of water resources that other rights will not be impaired by granting an extension of time within which to resume the use of the water and good cause appearing for such nonuse, he may grant one (1) extension of five (5) years within which to resume such use.
4. In his approval of the application for an extension of time under this section the director of the department of water resources shall set the date when the use of water is to be resumed. Sixty (60) days before such date the director of the department of water resources shall forward to the applicant at his address of record a notice by certified mail setting forth the date on which the use of water is to be resumed and a form for reporting the resumption of the use of the water right. If the use of the water has not been resumed and report thereon made on or before the date set for resumption of use such right shall revert to the state and again be subject to appropriation, as provided in this section.
5. In the event the director of the department of water resources determines that a proposed extension of time within which to resume use of a water right shall not be approved as provided in this section, he shall deny same and forward notice of such action to the applicant by certified mail, which decision shall be subject to judicial review as hereafter provided.

When the nature of use of the water right is to be changed to municipal purposes and some or all of the right will be held by a municipal provider to serve reasonably anticipated future needs, the municipal provider shall provide to the department sufficient information and documentation to establish that the applicant qualifies as a municipal provider and that the reasonably anticipated future needs, the service area and the planning horizon are consistent with the definitions and requirements specified in this chapter. The service area need not be described by legal description nor by description of every intended use in detail, but the area must be described with sufficient information to identify the general location where the water under the water right is to be used and the types and quantity of uses that generally will be made. When a water right or a portion thereof to be changed is held by a municipal provider for municipal purposes, as defined in section 42-202B, Idaho Code, that portion of the right held for reasonably anticipated future needs at the time of the change shall not be changed to a place of use outside the service area, as defined in section 42-202B, Idaho Code, or to a new nature of use.

The director of the department of water resources shall examine all the evidence and available information and shall approve the change in whole, or in part, or upon conditions, provided no other water rights are injured thereby, the change does not constitute an enlargement in use of the original right, the change is consistent with the conservation of water resources within the state of Idaho and is in the local public interest as defined in section 42-202B, Idaho Code, the change will not adversely affect the local economy of the watershed or local area within which the source of water for the proposed use originates, in the case where the place of use is outside of the watershed or local area where the source of water originates, and the new use is a beneficial use, which in the case of a municipal provider shall be satisfied if the water right is necessary to serve reasonably anticipated future needs as provided in this chapter. The director may consider consumptive use, as defined in section 42-202B, Idaho Code, as a factor in determining whether a proposed change would constitute an enlargement in use of the original water right. The director shall not approve a change in the nature of use from agricultural use where such change would significantly affect the agricultural base of the local area. The transfer of the right to the use of stored water for irrigation purposes shall not constitute an enlargement in use of the original right even though more acres may be irrigated, if no other water rights are injured thereby. A copy of the approved application for change shall be returned to the applicant and he shall be authorized upon receipt thereof to make the change and the original water right shall be presumed to have been amended by reason of such authorized change. In the event the director of the department of water resources determines that a proposed change shall not be approved as provided in this section, he shall deny the same and forward notice of such action to the applicant by certified mail, which decision shall be subject to judicial review as hereafter set forth. Provided however, minimum stream flow water rights may not be established under the local public interest criterion, and may only be established pursuant to chapter 15, title 42, Idaho Code.

History.

(5) Any person or persons feeling themselves aggrieved by the determination of the department of water resources in approving or rejecting an application to change the point of diversion, place, period of use or nature of use of water under an established right or an application for an extension of time within which to resume the use of water as provided in this section, may, if a protest was filed and a hearing held thereon, seek judicial review pursuant to section 42-1701A(4), Idaho Code. If no protest was filed and no hearing held, the applicant may request a hearing pursuant to section 42-1701A(3), Idaho Code, for the purpose of contesting the action of the director and may seek judicial review of the final order of the director following the hearing pursuant to section 42-1701A(4), Idaho Code. History.

1903, p. 223, § 1; am. 1905, p. 27, § 1; am. 1907, p. 507, § 1; reen. R.C., § 3264; am. 1915, ch. 34, § 1, p. 103; am. 1917, ch. 166, § 1, p. 495; C.L., § 3264; C.S., § 5582; am. 1921, ch. 146, § 1, p. 334; I. C.A.,§ 41-216; am. 1933, ch. 193, § 1, p. 382; am. 1943, ch. 53, § 2, p. 101; am. 1945, ch. 63, § 1, p. 79; rep. and reen. 1969, ch. 303, § 2, p. 905; am. 1980, ch. 238, § 6, p. 526; am. 1981, ch. 147, § 3, p. 253; am. 1982, ch. 202, § 1, p. 531; am. 1986, ch. 313, § 5, p. 763; am. 1988, ch. 153, § 1, p. 273; am. 1990, ch. 141, § 5, p. 316; am. 1994, ch. 64, § 3, p. 121; am. 1996, ch. 297, § 5, p. 967; am. 1996, ch. 333, § 1, p. 1128; am. 1997, ch. 373, § 2, p. 1188; am. 2000, ch. 85, § 1, p. 181; am. 2003, ch. 298, § 3, p. 806; am. 2004, ch. 62, § 1, p. 280; am. 2020, ch. 296, § 1, p. 849.

STATUTORY NOTES

Amendments.

This section was amended by two 1996 acts, ch. 297, § 5, and ch. 333, § 1, both effective July 1, 1996, which appear to be compatible and have been compiled together. Whereas both acts added a third sentence to subsection (2), the sentence added by ch. 297, § 5, has been compiled as the present third sentence and the sentence added by ch. 333, § 1, has been compiled as the present fourth sentence.

The 1996 amendment, by ch. 297, § 5, in subsection (1), added the present second and third paragraphs, and in the present last paragraph in the first sentence, deleted “and” preceding “the change is consistent”, and substituted “, and the new use is a beneficial use, which in the case of a municipal provider shall be satisfied if the water right is necessary to serve reasonably anticipated future needs as provided in this chapter. The” for “; except the”; and in subsection (2) added the present third sentence.

The 1996 amendment, by ch. 333, § 1, in subsection (2), added the present fourth sentence, and in the present sixth sentence inserted “, or covered by the waste provision of this section,” following “set-aside program”.

The 2020 amendment, by ch. 296, added the last sentence in subsection (2).

Legislative Intent.

Section 1 of S.L. 1990, ch. 141 read: “It is the intent of the legislature that passage of this act shall not affect existing appropriations of water that are used outside the state of Idaho nor affect the provisions of any interstate compact.”

Compiler’s Notes.

Section 6 of S.L. 1990, ch. 141 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 2 of S.L. 1945, ch. 63 declared an emergency. Approved Feb. 21, 1945.

Section 4 of S.L. 1981, ch. 147 declared an emergency. Approved March 27, 1981. CASE NOTES

Abandonment.

Abandonment is a question of intention and must be evidenced by a clear and decisive act. Idaho Farms Co. v. North Side Canal Co., 24 F. Supp. 189 (D. Idaho 1938), rev’d on other grounds, 107 F.2d 481 (9th Cir. 1939).

Patentee of land, over which right of way for reservoir had been granted, or his successor in interest, may institute proceedings to declare forfeiture and quiet title in case of abandonment. Carns v. Idaho-Iowa Lateral & Reservoir Co., 34 Idaho 330, 202 P. 1071 (1921); Hurst v. Idaho-Iowa Lateral & Reservoir Co., 34 Idaho 342, 202 P. 1068 (1921). Where it appeared from testimony of engineers that canal of prior appropriator lacked capacity to carry water decreed to it, and that the excess had been returned to stream and used by subsequent appropriators, abandonment resulted against such prior appropriator, a five-year period having elapsed. Albrethsen v. Wood River Land Co., 40 Idaho 49, 231 P. 418 (1924).

An abandonment of a water right must have been continuous for five consecutive years. Carrington v. Crandall, 65 Idaho 525, 147 P.2d 1009 (1944).

Only when an appropriator abandons his water by failing to apply it to a beneficial use for the statutory period of five years can it be considered and treated as unappropriated public water of the state. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

Water right was not forfeited even though abandoned for over five years where applicant for transfer resumed use of water prior to filing petition for transfer. In re Boyer, 73 Idaho 152, 248 P.2d 540 (1952).

No forfeiture or abandonment results if the nonuser is prevented from exercising his rights by circumstances over which he has no control. Hodges v. Trail Creek Irrigation Co., 78 Idaho 10, 297 P.2d 524 (1956).

Nonpayment of purported upkeep charge by plaintiff did not result in forfeiture or abandonment of plaintiff’s water rights where the plaintiff received no notice or demand for payment from defendant irrigation company. Hodges v. Trail Creek Irrigation Co., 78 Idaho 10, 297 P.2d 524 (1956).

An appropriator who fails to make beneficial use of his water for the statutory period may forfeit his rights, but title to such water right cannot be acquired by another, where such other claimant was the party who prevented the use. Hodges v. Trail Creek Irrigation Co., 78 Idaho 10, 297 P.2d 524 (1956).

Where protestants asserted that water, which applicant had tried to appropriate by his permit, was seepage water to which they had superior rights through prior use and enjoyment, and there was no evidence as to the actual amount of water used by protestants over and above their decreed rights, or amount claimed at point of diversion that had not been adjudicated, the evidence was insufficient to establish that any of the protestants had abandoned any right to the use of their prior decreed rights. Cantlin v. Carter, 88 Idaho 179, 397 P.2d 761 (1964).

A senior appropriator did not lose by laches his right to object to a conflicting diversion by a junior appropriator by failure to assert his rights in previous rights, where such diversion had not previously interfered with his use of the water to which he was entitled. Martiny v. Wells, 91 Idaho 215, 419 P.2d 470 (1966).

In an action brought by upstream landowners against downstream owners who possessed senior water appropriation rights fixed by judicial decree for a declaratory judgment that upstream owners had acquired greater water rights than those fixed in the decree, where the evidence established that downstream owners were often unable to continuously make beneficial use of their senior rights and that upstream owners occasionally interfered with those rights without apparent objection but did not establish a clear intention to abandon the water rights, there was substantial evidence to support the trial court’s finding that upstream owners failed to meet their burden of proving abandonment. Gilbert v. Smith, 97 Idaho 735, 552 P.2d 1220 (1976). Mere evidence that beaver dams and sump holes or sinks had caused losses of creek water and difficulty in obtaining water to satisfy water rights of downstream landowner did not establish a case of abandonment or forfeiture, thus upstream landowner who sought to divert the water and apply it to beneficial use could not be permitted to interfere with senior water rights of downstream owner. Gilbert v. Smith, 97 Idaho 735, 552 P.2d 1220 (1976).

Where lessees had failed to use the full decreed water rights of the river appurtenant to leased farmland, the unused water rights could have been forfeited by non-use prior to the end of the lease to the substantial injury of lessor’s reversionary interest. Olson v. Bedke, 97 Idaho 825, 555 P.2d 156 (1976).

Intent to abandon must be proved by clear and convincing evidence of unequivocal acts, and mere nonuse of a water right, standing alone, is not sufficient for a per se abandonment. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Intent to abandon is a question of fact to be decided by the trier of fact. Therefore, where the record showed only nonuse, disclosing no intent to abandon, the property owner did not lose his water right by common-law abandonment. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Under Section 27 of the Federal Power Act, 16 U.S.C. § 821, all state water law is preserved “relating to the control, appropriation, use, or distribution of water.” Idaho’s state water law, allowing subsequent appropriators to perfect a water right in water that has been abandoned or forfeited clearly relates to the control, appropriation, use or distribution of water; hence, neither the Federal Power Act nor a license issued pursuant to that authority has overridden Idaho’s law of abandonment or forfeiture of water rights. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

While the language of§§ 61-327 to 61-331 is very broad in forbidding any transfer “directly or indirectly, in any manner whatsoever” of electric utility property (§ 61-328), such sections are inapplicable to abandonment or forfeiture of a water right. If those sections were applied to abandonment or forfeiture of a water right used to generate electricity, the attorney general would be required to file an action to have such an escheat decreed, and thereafter there would be a court ordered sale of the property; such a scheme is totally inconsistent with subsection (2) of this section, which provides that if a water right is abandoned or forfeited it reverts to the state, following which third parties may perfect an interest therein. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

Abandonment Not Favored.

If no public interest is forwarded by the abandonment, equity is against declaring a forfeiture. Idaho Farms Co. v. North Side Canal Co., 24 F. Supp. 189 (D. Idaho 1938), rev’d on other grounds, 107 F.2d 481 (9th Cir. 1939).

Abandonment and forfeitures of water rights are not favored, and, even though forfeited and abandoned for five years prior to the time that subsequent appropriators initiated their right, if, subsequent to such five-year period, and prior to such subsequent appropriators’ initiation of their right, the first appropriators and their predecessors in interest under claim of right and continuity of interest again began to exercise their water rights, there would be no abandonment which could inure to the benefit of subsequent appropriators. Zezi v. Lightfoot, 57 Idaho 707, 68 P.2d 50 (1937). Forfeiture of water rights is not favored, and all intendments are to be indulged in against a forfeiture. Hodges v. Trail Creek Irrigation Co., 78 Idaho 10, 297 P.2d 524 (1956).

Action to Quiet Title.

Where predecessor in title of both plaintiff and defendant had transferred water right from ranch now owned by defendant to ranch now owned by plaintiff, latter could maintain action to quiet title to such water right although predecessor in title had not had statutory authority to make such change. Federal Land Bank v. Union Cent. Life Ins. Co., 51 Idaho 490, 6 P.2d 486 (1931).

Appeals.

Any party aggrieved by decision of commissioner may either appeal to district court or commence original action in said court. Crockett v. Jones, 42 Idaho 652, 249 P. 483 (1926).

Hearing on appeal to district court from reclamation commissioner must be reviewed by supreme court on appeal and not by writ of review. State v. Adair, 49 Idaho 271, 287 P. 950 (1930).

Proceedings before district court under this section are de novo. First Secur. Bank v. State, 49 Idaho 740, 291 P. 1064 (1930).

On appeal from action of department of reclamation (now department of water resources), district court acquires full equitable jurisdiction over entire controversy. In re Rice, 50 Idaho 660, 299 P. 664 (1931).

Use of a summary judgment procedure is permissible on an appeal from a ruling by the director of the department of water resources. Beker Indus., Inc. v. Georgetown Irrigation Dist., 101 Idaho 187, 610 P.2d 546 (1980).

Application to Split Water Rights.

Application to split a water right was properly denied where the transfer would have resulted in an illegal enlargement of the right above its historical beneficial use, and the watermaster expressed his concern that without stringent regulation, the proposed transfer would damage downstream rights. Barron v. Idaho Dep’t of Water Resources, 135 Idaho 414, 18 P.3d 219 (2001).

Appurtenancy.

Water right was not necessarily appurtenant to land on which it was used, and could be separated therefrom. First Sec. Bank v. State, 49 Idaho 740, 291 P. 1064 (1930).

When a civilian conservation corps camp was dismantled and a waterline by which it received water from a nearby creek was abandoned, such waterline became the property of the state of Idaho and was not included in a deed of land which included in its habendum clause “the appurtenances thereon.” Sutton v. Brown, 91 Idaho 396, 422 P.2d 63 (1966).

Beneficial Use.

Although the doctrine of beneficial use is a concept that is constitutionally recognized and that permeates Idaho’s water code, the Idaho Constitution does not mandate that non-application to a beneficial use, for any period of time no matter how small, results in the loss or reduction of water rights. State v. Hagerman Water Right Owners, Inc., 130 Idaho 736, 947 P.2d 409 (1997).

Water rights in Idaho are not subject to statutory forfeiture for failure to beneficially apply water for a duration less than that provided for in subdivision (2) of this section. State v. Hagerman Water Right Owners, Inc., 130 Idaho 736, 947 P.2d 409 (1997).

Burden of Proof.

In an action to quiet title, brought by subsequent appropriators on the theory that the former appropriators had abandoned the use of water, the burden of proof was on the subsequent appropriators to show that persons who had used the water by permission used more than that for which they had permission. Zezi v. Lightfoot, 57 Idaho 707, 68 P.2d 50 (1937).

Change in Nature of Use.

Change of Diversion.

The owner of a water right had the statutory right to change his point of diversion provided that the rights of others were not injured, and such change did not work a forfeiture or an abandonment of such right. Graham v. Leek, 65 Idaho 279, 144 P.2d 475 (1944).

A change in point of use will not be permitted without limitations if the enlarged use in time or amount increases the burden on the stream, or decreases the volume of water in the stream to the injury of appropriators on the stream. Beecher v. Cassia Creek Irrigation Co., 66 Idaho 1, 154 P.2d 507 (1944).

Where the original permit incorrectly located the point of diversion, a subsequent petition to correct this designation to conform to the actual point of diversion was not a petition to change the point of diversion. Keller v. Magic Water Co., 92 Idaho 276, 441 P.2d 725 (1968).

It was error for the district court to enjoin landowners from changing the point of diversion of water from a well located on one section of their land to another, where such owners had filed a proper application for such change with the state reclamation engineer (now director of the department of water resources), who declined to hear or process the application. State ex rel. Tappan v. Smith, 92 Idaho 451, 444 P.2d 412 (1968).

Construction.

Where one secures permit under this chapter and appropriates water thereunder, it is a statutory appropriation, and to change the point of diversion there must be a substantial compliance with this section. Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073 (1915).

This section is not in conflict with§ 42-108. Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073 (1915).

This section neither adds to nor detracts from property rights already existing. First Sec. Bank v. State, 49 Idaho 740, 291 P. 1064 (1930). This section is remedial and should be construed liberally. In re Rice, 50 Idaho 660, 299 P. 664 (1931).

Determinations by Director.

The director of the department of water resources has jurisdiction to determine the question of abandonment and forfeiture and such is required as a preliminary step to performance of his statutory duty in determining whether or not a proposed transfer would injure other water rights. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Effect of Seepage.

So long as that water which arrived at its destination was put to a beneficial use, and so long as the amount of water lost through seepage during the transportation of that water from its place of origin to its place of use was reasonable, it could not be said that the mere fact of seepage transformed it into water not beneficially used. Hidden Springs Trout Ranch, Inc. v. Hagerman Water Users, Inc., 101 Idaho 677, 619 P.2d 1130 (1980).

Enlargement of Existing Right.

Transfer of water right to divert 1.6 cfs of water to three separate fields did not result in an enlargement of the existing right, even though consumptive use to one of the fields had been forfeited by nonuse. Dovel v. Dobson, 122 Idaho 59, 831 P.2d 527 (1992).

Estoppel to Deny User’s Right.

Where it appeared that a water user’s title may have been originally questionable or uncertain, and where one who had a superior right thereto stood by with full knowledge of the facts for more than twenty years and allowed an adverse claimant to proceed to use the water on the theory that such adverse user had a valid title to the water, and such adverse user, in the meantime, incurred large indebtedness on the strength of title to the water, the one who formerly had a superior right is estopped to assert it. Hillcrest Irrigation Dist. v. Nampa & Meridian Irrigation Dist., 57 Idaho 403, 66 P.2d 115 (1937).

Evidence Insufficient.

Plaintiff’s application for transfer of water rights was properly denied where the applicant did not present sufficient evidence of non-injury, no enlargement of right, and favorable public interest concerning the transfer. Barron v. Idaho Dep’t of Water Resources, 135 Idaho 414, 18 P.3d 219 (2001).

Forfeiture.

Where plaintiffs attempted to establish, at trial, that they had established a right to disputed water with the original priority dates of 1872, 1873 and 1879, it was inconsistent for them to argue on appeal that the rights were forfeited under this section, since under a forfeiture theory the priority date of the original appropriator is lost, the water rights revert to the state and the subsequent appropriator does not obtain title to the rights dating back to the original user’s priority date. Thus, since plaintiff began using defendant’s water in 1939 the forfeiture period under this section would run to 1944 and the water rights would then have reverted to the state, to become available to plaintiffs for appropriation. Sears v. Berryman, 101 Idaho 843, 623 P.2d 455 (1981). Forfeitures are not favored, and clear and convincing proof is required to support a forfeiture. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Wrongful interference with a water right or failure to use the water because of circumstances over which the water right holder had no control have been recognized as defenses to forfeiture. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Where there was substantial, albeit conflicting, evidence indicating that property owner had failed to use any creek water for a beneficial use between 1961 and 1979, a period of 18 years, and the local water master testified that he had delivered water from the creek for those 18 years, but had not delivered nor been requested to deliver any of the creek water to said property owner, the trial court finding that the channels from the creek to a second creek did not carry a regular flow of water except during the spring runoff, supported the conclusion of a statutory forfeiture and the denial of the property owner’s application for transfer of point of diversion. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Forfeiture of water rights is conceptually distinct from common-law abandonment. While abandonment is predicated upon the elements of intent and conduct, and it requires an intent to abandon and the actual surrender or relinquishment of water rights, statutory forfeiture provides that all rights to water are lost where the appropriator fails to make “beneficial use” of the water for a continuous five-year period regardless of intent. McAtee v. Faulkner Land & Livestock, Inc., 113 Idaho 393, 744 P.2d 121 (Ct. App. 1987).

Partial forfeiture is provided for by subdivision (2) of this section. State v. Hagerman Water Right Owners, Inc., 130 Idaho 727, 947 P.2d 400 (1997).

Where stockholders wished to use forfeiture only to avoid paying maintenance assessments, the adjudication court’s determination that no water rights were forfeited was affirmed; a finding of forfeiture by an appropriator who did nothing to cause the nonuse of the water would have done nothing to advance the policy behind the statute to secure the maximum use and benefit of the state’s water resources. Aberdeen-Springfield Canal Co. v. Peiper, 133 Idaho 82, 982 P.2d 917 (1999).

Where the majority of the property had not been irrigated for more than five consecutive years, it resulted in a forfeiture under subsection (2) of this section. McCray v. Rosenkrance, 135 Idaho 509, 20 P.3d 693 (2001).

The “no control” exception to forfeiture of a water right is codified in§ 42-223(6), which provides that no portion of any water right shall be lost or forfeited for nonuse if the nonuse results from circumstances over which the water right owner has no control. Whether the water right owner has control over nonuse of water shall be determined on a case-by-case basis. The availability of water qualifies as a circumstance over which an appropriator has no control. That is, for a water right to be forfeited, water must be available to satisfy the water right during the alleged period of non-use. Barnes v. Jackson, 163 Idaho 194, 408 P.3d 1266 (2018).

The resumption-of-use doctrine is a defense to forfeiture of a water rigfht, if, after five years of nonuse, the appropriator resumes use prior to a claim of right by a third party. Therefore, to avoid forfeiture, resumption-of-use must occur prior to a claim of right by a third party. A third party has made a claim of right if he has: (1) instituted proceedings to declare a forfeiture; (2) obtained a valid water right authorizing the use of such water with a priority date prior to the resumption of use; or (3) used the water pursuant to an existing water right. Barnes v. Jackson, 163 Idaho 194, 408 P.3d 1266 (2018).

Injury.

Injury to one owner of drainage canal by co-owners’ abandonment thereof does not prevent latter from selling water right, or changing place of conveyance, point of diversion, or place of use. In re Johnson, 50 Idaho 573, 300 P. 492 (1931).

If transfer of water right by petitioner did not injure any other person, it was no defense to petition that if other persons transferred their rights there would be a resulting injury. In re Boyer, 73 Idaho 152, 248 P.2d 540 (1952).

The director is statutorily required to examine all evidence of whether a proposed transfer will injure other water rights or constitute an enlargement of the original right. Evidence which demonstrates that the right sought to be transferred has been abandoned or forfeited is probative as to whether that transfer would injure other water rights. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Jurisdiction.

Where plaintiff sought judicial review of a water use decision of the Idaho department of water resources in the district court of the seventh judicial district, the district court lacked jurisdiction to review the IDWR decision. The district court’s decision was vacated and the case remanded to the Snake River Basin adjudication district court. Sagewillow, Inc. v. Idaho Dep’t of Water Resources, 135 Idaho 24, 13 P.3d 855 (2000).

Liability for Bonded Indebtedness.

District bonds were not affected by transfer of petitioner’s water rights where trial court held that proportionate liability of bonded indebtedness in district remained regardless of transfer. In re Boyer, 73 Idaho 152, 248 P.2d 540 (1952).

Permissive Use.

Permissive use was sufficient to inure to the benefit of the true owners of water or persons entitled to its use and to prevent the operation of the abandonment statute. Zezi v. Lightfoot, 57 Idaho 707, 68 P.2d 50 (1937).

Persons Entitled to Change.

Right to change point of diversion belongs to stockholding consumer in mutual ditch company as fully as to any other appropriator, so long as rights of others are not injuriously affected. Twin Falls Canal Co. v. Shippen, 46 Idaho 787, 271 P. 578 (1928).

An irrigation company has the right to purchase water rights and change points of diversion provided such action will not result in substantial injury to water rights of others. Beecher v. Cassia Creek Irrigation Co., 66 Idaho 1, 154 P.2d 507 (1944).

Pleadings.

Complaint alleging abandonment should allege that specific quantities of water have been used or are claimed by plaintiff. Inman v. Round Valley Irrigation Co., 41 Idaho 482, 238 P. 1018 (1925).

Prescriptive Title by Adverse Use.

Private Settlement Agreement.

Where evidence established that upstream landowners and their predecessors interfered with senior water rights of downstream landowners, but where the evidence indicated that upstream owners’ use was intermittent, interrupted and not wholly under an assertion of right, upstream owners failed to show any rights in themselves to the water by adverse possession. Gilbert v. Smith, 97 Idaho 735, 552 P.2d 1220 (1976). Private Settlement Agreement.

A private settlement agreement cannot define, add, or subtract from the elements of a validly adjudicated water right. It can only limit, condition, or clarify the administration of the right as between the private parties to the agreement. City of Blackfoot v. Spackman, 162 Idaho 302, 396 P.3d 1184 (2017).

Public Interest.

Under§ 42-203A, any application to appropriate water in Idaho is subject to the local public interest standard. Likewise, any change to a water right under this section is also subject to a determination that the change is in the local public interest as stated in§ 42-203A; as is an amendment to a water permit under§ 42-211. Hardy v. Higginson, 123 Idaho 485, 849 P.2d 946 (1993).

Idaho department of water resources’ hearing officer’s decision to transfer water to a proposed dairy was supported by substantial and competent evidence, despite property owners’ protestations, and the hearing officer properly considered local public interest, such as economic development. Chisholm v. State Dep’t of Water Res. (In re Transfer No. 5639), 142 Idaho 159, 125 P.3d 515 (2005).

Questions Determined in Separate Action.

In proceeding to change point of diversion of water, question of abandonment of priority was not before court if proper objection was made thereto, and such right should be settled in some other proceeding. Twin Falls Canal Co. v. Shippen, 46 Idaho 787, 271 P. 578 (1928).

If ownership of water, or right to change, is disputed in proceeding under this section, such question must be determined in action for that purpose. Federal Land Bank v. Union Cent. Life Ins. Co., 51 Idaho 490, 6 P.2d 486 (1931).

Relation to Other Law.

The purpose of§ 42-1425 is to streamline the adjudication process by providing a substitute for the transfer process required by this section and to protect existing water uses which were the result of past transfers, regardless of compliance with statutory mandates. Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996).

Remedy in Equity.

Where applicant for change of place in use of water was not owner of land to which water had been made appurtenant, he could proceed in equity rather than under this section. First Sec. Bank v. State, 49 Idaho 740, 291 P. 1064 (1930).

Resumption of Use.

Forfeiture of water right was not effective although statutory abandonment had occurred, if the original owner resumed the use prior to a claim of right by a third person. Carrington v. Crandall, 65 Idaho 525, 147 P.2d 1009 (1944). If use of water right is resumed after the five-year period, but before any third parties make a claim in the water, then the courts will decline to declare a forfeiture. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Idaho department of water resources applied the resumption-of-use doctrine incorrectly, necessitating vacation of its order and remand, where although the findings indicated that the owner of senior water rights had failed to use them for a period longer than five years, there was no indication that the junior rights holders had commenced their use before the senior holder had resumed its use. Sagewillow, Inc. v. Idaho Dep’t of Water Res., 138 Idaho 831, 70 P.3d 669 (2003).

Reversion to State.

Abandonment of water right began when owner ceased to apply water to beneficial use, and where he failed to so apply it for five years, it reverted to state and again became subject to appropriation. Chill v. Jarvis, 50 Idaho 531, 298 P. 373 (1931).

When the right to the use of water has been lost through nonuse or abandonment, the right to such use reverts to the state and is again subject to appropriation. Graham v. Leek, 65 Idaho 279, 144 P.2d 475 (1944).

If a water right has indeed been lost through abandonment or forfeiture, the right to use that water reverts to the state and is subject to further appropriation. Other parties may then perfect a water right in those waters. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Right Acquired by Purchaser.

Where purchaser acquired land after the rendition of water right decree, he received only that which the vendor had for sale and if the right to correct the decree had been lost by laches or otherwise, the purchaser was in no better position than the vendor. Albion-Idaho Land Co. v. Adams, 58 F. Supp. 579 (D. Idaho 1945).

Rights to Seepage.

Where appropriator had tried repeatedly to reduce the seepage loss from an open ditch and such efforts culminated in the placement of a steel pipe, it was clear that appropriator never intended to abandon the water nor did appropriator forfeit its rights to seepage water. Hidden Springs Trout Ranch, Inc. v. Hagerman Water Users, Inc., 101 Idaho 677, 619 P.2d 1130 (1980).

Standing to Contest Change.

Subsequent Appropriators.

Rule as to change of place of application cannot inure to the aid of subsequent appropriators because, not being appropriators during the time, it was no concern of theirs, except as it bears on the question of abandonment, where or how the water was diverted or applied. Zezi v. Lightfoot, 57 Idaho 707, 68 P.2d 50 (1937).

If a senior right has been abandoned or forfeited, the priority of the original appropriator is lost, and the junior appropriators move up the ladder of priority. Hence if a senior right which had been forfeited or abandoned were allowed to be reinstated through a transfer proceeding, clearly injury would result to otherwise junior appropriators. Jenkins v. State, Dep’t of Water Resources, 103 Idaho 384, 647 P.2d 1256 (1982).

Water Right Decree.

Right based upon decree of court was not immune from showing that it had been abandoned, and such showing did not impeach decree upon which such right was based where evidence of abandonment related to time subsequent to decree. Albrethsen v. Wood River Land Co., 40 Idaho 49, 231 P. 418 (1924).

A decreed water right was not immune from a showing that it had been abandoned, and such showing did not impeach the decree upon which the right was based, where the evidence received with reference to the abandonment related to a time subsequent to the decree. Graham v. Leek, 65 Idaho 279, 144 P.2d 475 (1944).

Cited

Almo Water Co. v. Darrington, 95 Idaho 16, 501 P.2d 700 (1972); Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977); Crow v. Carlson, 107 Idaho 461, 690 P.2d 916 (1984); Feustel v. Stevenson, 119 Idaho 698, 809 P.2d 1177 (Ct. App. 1991).

OPINIONS OF ATTORNEY GENERAL

Forfeiture Period.

On its face, this section seems to require that a water right be accepted and subsequently rented out in order to toll the forfeiture provisions of subsection (2); however, when§ 42-1764 is interpreted in light of the entire water supply bank act, it is possible to argue that the forfeiture period should be tolled whenever a water right is placed into the bank. Because of the ambiguity within the Act, it is not possible to predict which interpretation a court might adopt.OAG 88-4.

The filing of an application for change in point of diversion, place of use, period of use, or nature of use of a water right does not toll the running of the forfeiture period for nonuse of a water right established by subsection (2).OAG 88-4.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

Am. Jur. 2d.

Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016). Am. Jur. 2d. — 78 Am. Jur. 2d, Waters, §§ 367 to 369.

C.J.S.

§ 42-222A. Temporary changes during drought conditions.

Upon declaration of a drought emergency for an area designated by the director of the department of water resources and approved by the governor of the state of Idaho, the director of the department of water resources is authorized to allow temporary changes to the use of water rights consisting of temporary transfers to change point of diversion, place and purpose of use of valid existing water rights or temporary exchanges of water authorized to be diverted under water rights, as provided in section 42-240, Idaho Code, when the director of the department of water resources determines that such change(s) can be accomplished in accordance with the provisions of this section.
Application for a temporary change shall be made upon forms provided by the department of water resources and shall be accompanied by an application fee of fifty dollars ($50.00) per application.
The director of the department of water resources is not required to publish notice of the proposed change pursuant to the provisions of section 42-211, 42-222(1) or 42-240, Idaho Code, and is not required to make findings as provided in said sections. A temporary change may be approved upon completion of the application form, payment of the filing fee and a determination by the director of the department of water resources that the proposed change can be properly administered and there is no information that the change will injure any other water right. If the water right to be changed is administered by a watermaster within a water district, the director of the department of water resources shall obtain and consider the recommendations of the watermaster before approving the temporary change application.
All temporary changes approved pursuant to the provisions of this section shall expire on the date shown in the approval which shall not be later than December 31 of the year in which the emergency transfer approval is made and thereafter the water right shall revert to the point of diversion and place of use existing prior to the temporary change. Nothing herein shall be construed as approval to authorize the construction of a new well as a new point of diversion.
The recipient of an approved temporary change issued pursuant to this section shall assume all risk that the diversion and use of the water may cause injury to other water rights, that the change constitutes an enlargement in use of the original right, that the use is not consistent with the conservation of water resources within the state of Idaho and that such use is not in the local public interest. Any applicant for a temporary change who is aggrieved by a denial by the director of the department of water resources of a temporary change pursuant to this section may request a hearing pursuant to the provisions of section 42-1701A(3), Idaho Code, and may seek judicial review of the final order of the director pursuant to the provisions of section 42-1701A(4), Idaho Code.

History.

(6) Temporary changes shall only be approved for the purpose of providing a replacement water supply to lands or other uses which normally have a full water supply except for a drought condition. Temporary changes may not be approved to provide water for new projects or to allow expansion of the use of water under existing water rights. If the right to use the water, the diversion works or the water delivery system is represented by shares of stock in a corporation or if such right, diversion works or delivery system is owned or managed by an irrigation district, no change in point of diversion or place or nature of use of such water shall be made or allowed without the written consent of such corporation or irrigation district. History.

I.C.,§ 42-222A, as added by 1993, ch. 161, § 1, p. 410; am. 2001, ch. 126, § 1, p. 447.

STATUTORY NOTES

Compiler’s Notes.

The “s” enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 2 of S.L. 1993, ch. 161 declared an emergency. Approved March 25, 1993.

Section 2 of S.L. 2001, ch. 126 declared an emergency. Approved March 23, 2001.

§ 42-223. Exceptions or defenses to forfeiture.

A right to the use of water shall not be lost by forfeiture pursuant to the provisions of section 42-222, Idaho Code, for a failure to apply the water to beneficial use under the conditions specified in any subsection of this section. The legislature does not intend through enactment of this section to diminish or impair any statutory or common law exception or defense to forfeiture existing on the date of enactment or amendment of this section, or to preclude judicial or administrative recognition of other exceptions or defenses to forfeiture recognized in Idaho case law or other provisions of the Idaho Code. No provision of this section shall be construed to imply that the legislature does not recognize the existence or validity of any common law exception or defense to forfeiture existing on the date of enactment or amendment of this section.

A water right appurtenant to land contracted in a federal cropland set-aside program shall not be lost or forfeited for nonuse during the contracted period. The running of any five (5) year period of nonuse for forfeiture of a water right shall be tolled during the time that the land remains in the cropland set-aside program.
A water right held by a municipal provider to meet reasonably anticipated future needs shall be deemed to constitute beneficial use, and such rights shall not be lost or forfeited for nonuse unless the planning horizon specified in the license has expired and the quantity of water authorized for use under the license is no longer needed to meet reasonably anticipated future needs.
A water right shall not be lost or forfeited by a failure to divert and apply the water to beneficial use if the water is not needed to maintain full beneficial use under the right because of land application of waste for disposal purposes including, but not limited to, discharge from dairy lagoons used in combination with or substituted for water diverted under the water right.
A water right shall not be lost or forfeited by a failure to divert and apply the water to beneficial use if the reason for the nonuse of the water is to comply with the provisions of a ground water management plan approved by the director of the department of water resources pursuant to section 42-233a or 42-233b, Idaho Code.
A water right shall not be lost or forfeited by a failure of the owner of the right to divert and apply the water to beneficial use while the water right is placed in the water supply bank or is retained in or rented from the water supply bank pursuant to sections 42-1761 through 42-1765A, Idaho Code, or while the water right is leased pursuant to sections 43-335 through 43-342, Idaho Code, or sections 42-2501 through 42-2509, Idaho Code, or while use of the water is made under any other provision of law authorizing the rental or lease of water rights.
No portion of any water right shall be lost or forfeited for nonuse if the nonuse results from circumstances over which the water right owner has no control. Whether the water right owner has control over nonuse of water shall be determined on a case-by-case basis.
No portion of a water right held by an irrigation district, a Carey Act operating company, or any other company, corporation, association, or entity which holds water rights for distribution to its landowners, shareholders or members shall be lost or forfeited due to nonuse by such landowners, shareholders or members, unless the nonuse is subject to the control of such entity. (8) No portion of a water right held by an irrigation district shall be lost, forfeited or subject to forfeiture as a result of the exclusion of land from the district pursuant to chapter 11, title 43, Idaho Code, so long as any five (5) year period of nonuse following the exclusion does not result from circumstances over which the district has control.
1. Instituted proceedings to declare a forfeiture;
2. Obtained a valid water right authorizing the use of such water with a priority date prior to the resumption of use; or
3. Used the water made available by nonuse pursuant to an existing water right.

(9) No portion of any water right shall be lost or forfeited for nonuse if the nonuse results from a water conservation practice, which maintains the full beneficial use authorized by the water right, as defined in section 42-250, Idaho Code.

(10) No portion of any water right shall be lost or forfeited for nonuse if the nonuse results from the water right being used for mitigation purposes approved by the director of the department of water resources including as a condition of approval for a new water right appropriation approved pursuant to section 42-203A, Idaho Code, a water right transfer approved pursuant to section 42-222, Idaho Code, a water exchange approved pursuant to section 42-240, Idaho Code, or a mitigation plan approved in accordance with rules promulgated pursuant to section 42-603, Idaho Code.

(11) No portion of any water right with a beneficial use related to mining, mineral processing or milling shall be lost or forfeited for nonuse, so long as the nonuse results from a closure, suspension or reduced production of the mine, processing facility or mill due in whole or in part to mineral prices, if the mining property has a valuable mineral, as defined in section 47-1205, Idaho Code, and the water right owner has maintained the property and mineral rights for potential future mineral production.

(12) No portion of any water right shall be lost or forfeited for nonuse if, after the five (5) year period of nonuse, use of the water is resumed prior to a claim of right by a third party. A third party has made a claim of right if the party has:

History.

I.C.,§ 42-223, as added by 2000, ch. 85, § 3, p. 181; am. 2002, ch. 343, § 1, p. 961; am. 2003, ch. 166, § 1, p. 470; am. 2004, ch. 178, § 1, p. 560; am. 2008, ch. 239, § 1, p. 719; am. 2020, ch. 296, § 2, p. 849.

STATUTORY NOTES

Prior Laws.

Former§ 42-223, which comprised 1945, ch. 97, § 1, p. 147, was repealed by S.L. 2000, ch. 85, § 2, effective July 1, 2000.

Amendments.

The 2008 amendment, by ch. 239, added subsection (11).

Effective Dates.

The 2020 amendment, by ch. 296, added subsection (12). Effective Dates.

Section 3 of S.L. 2003, ch. 166 declared an emergency. Approved March 27, 2003.

Section 2 of S.L. 2008, ch. 239 declared an emergency. Approved March 25, 2008. Section 2 of S.L. 2008, ch. 239 further provided that this act shall apply to all existing water rights, but shall not be applied to revive any water right that has been finally determined to be forfeited prior to the date of passage and approval of this act.

CASE NOTES

No Control.

The “no control” exception to forfeiturew of a water right is codified in subsection (6), which provides that no portion of any water right shall be lost or forfeited for nonuse if the nonuse results from circumstances over which the water right owner has no control. Whether the water right owner has control over nonuse of water shall be determined on a case-by-case basis. The availability of water qualifies as a circumstance over which an appropriator has no control. That is, for a water right to be forfeited, water must be available to satisfy the water right during the alleged period of non-use. Barnes v. Jackson, 163 Idaho 194, 408 P.3d 1266 (2018).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

§ 42-224. Forfeiture of stockwater rights.

Whenever the director of the department of water resources receives a petition making a prima facie showing, or finds, on his own initiative based on available information, that a stockwater right has not been put to beneficial use for a term of five (5) years, the director shall expeditiously issue an order to the stockwater right owner to show cause before the director why the stockwater right has not been lost through forfeiture pursuant to section 42-222(2), Idaho Code.
Any order to show cause shall contain the director’s findings.
The director shall serve a copy of any order to show cause on the stockwater right owner by personal service or by certified mail. Personal service may be completed by department personnel or a person authorized to serve process under the Idaho rules of civil procedure. Service by certified mail shall be complete upon receipt of the certified mail. If reasonable efforts to personally serve the order fail, or if the certified mail is returned unclaimed, the director may serve the order by publication by publishing a summary of the order once a week for two (2) consecutive weeks in a newspaper of general circulation in the county in which the point of diversion is located. Service by publication shall be complete upon the date of the last publication.
If the order affects a stockwater right where the place of use is a federal grazing allotment, the director shall provide a copy of the order to the holder or holders of any livestock grazing permit or lease for said allotment.
The stockwater right owner shall have twenty-one (21) days from completion of service to request in writing a hearing pursuant to section 42-1701A, Idaho Code. If the stockwater right owner fails to timely respond to the order to show cause, the stockwater right shall be considered forfeited, and the director shall issue an order declaring the stockwater right to be forfeited pursuant to section 42-222(2), Idaho Code.
The director may consider multiple stockwater rights held by a single owner in a single order to show cause.
If the stockwater right owner timely requests a hearing, the hearing shall be in accordance with section 42-1701A, Idaho Code, and the rules of procedure promulgated by the director. If, after the hearing, the director confirms that the water right has been lost and forfeited pursuant to section 42-222(2), Idaho Code, the director shall issue an order declaring the water right forfeited. Judicial review of any decision of the director shall be in accordance with section 42-1701A, Idaho Code.
For purposes of this section, the following terms have the following meanings:
1. “Stockwater right” means water rights for the watering of livestock meeting the requirements of section 42-1401A(11), Idaho Code.
2. “Stockwater right owner” as used in this section means the owner of the stockwater right shown in the records of the department of water resources at the time of service of the order to show cause.
This section applies to all stockwater rights except those stockwater rights decreed to the United States based on federal law.

History.

(10) The director shall not issue an order to show cause, and shall not proceed under the provisions of this section, where the holder or holders of any livestock grazing permit or lease on a federal grazing allotment asserts a principal/agent relationship with the federal agency managing the grazing allotment. History.

I.C.,§ 42-224, as added by 2020, ch. 253, § 1, p. 738.

STATUTORY NOTES

Cross References.

Director of department of water resources,§ 42-1801 et seq.

Prior Laws.

Former§ 42-224, Protest against license — Appeal from decision, which comprised 1903, p. 223, § 12; reen. R.C. & C.L., § 3265; C.S., § 5583; I.C.A.,§ 41-217; am. 1980, ch. 238, § 7, p. 526; am. 1994, ch. 64, § 4, p. 121, was repealed by S.L. 2000, ch. 85, § 4, effective July 1, 2000.

§ 42-225. Survey of appropriations

§ 42-226. Ground waters are public waters.

The traditional policy of the state of Idaho, requiring the water resources of this state to be devoted to beneficial use in reasonable amounts through appropriation, is affirmed with respect to the ground water resources of this state as said term is hereinafter defined and, while the doctrine of “first in time is first in right” is recognized, a reasonable exercise of this right shall not block full economic development of underground water resources. Prior appropriators of underground water shall be protected in the maintenance of reasonable ground water pumping levels as may be established by the director of the department of water resources as herein provided. In determining a reasonable ground water pumping level or levels, the director of the department of water resources shall consider and protect the thermal and/or artesian pressure values for low temperature geothermal resources and for geothermal resources to the extent that he determines such protection is in the public interest. All ground waters in this state are declared to be the property of the state, whose duty it shall be to supervise their appropriation and allotment to those diverting the same for beneficial use. This act shall not affect the rights to the use of ground water in this state acquired before its enactment.

Any application for a water permit that seeks to transfer ground water outside the immediate ground water basin as defined by the director of the department of water resources for the purpose of irrigating five thousand (5,000) or more acres on a continuing basis or for a total volume in excess of ten thousand (10,000) acre feet per year, the application must first be approved by the director of the department of water resources and then by the Idaho legislature. Each shall give due consideration to the local economic and ecological impact of the project or development so proposed.

History.

1951, ch. 200, § 1, p. 423; am. 1953, ch. 182, § 1, p. 277; am. 1980, ch. 186, § 1, p. 413; am. 1987, ch. 347, § 1, p. 741.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” in the last sentence in the first paragraph refers to S.L. 1987, chapter 347, which is codified as§§ 42-226, 42-230, 42-233, 42-235, 42-237a, 42-237g, 42-238, 42-1601, 42-1604, 42-1605, 42-1607, 42-4002, 42-4003, 42-4005, and 42-4010. That act was effective on July 1, 1987.

CASE NOTES

Applicability.

Domestic wells drilled prior to 1978 are exempt from the provisions of this section. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Administration of an irrigation district’s water right is subject to the provisions of the 1951 Idaho ground water act,§§ 42-226 to 42-239. In re Delivery Call of A&B Irrigation Dist., 153 Idaho 500, 284 P.3d 225 (2012).

Change of Diversion.

It was error for the district court to enjoin landowners from changing the point of diversion of water from a well on one section of their land to another, where such owners had filed a proper application for such change with the state reclamation engineer (now the director of the department of water resources), who had declined to hear or process the application. State ex rel. Tappan v. Smith, 92 Idaho 451, 444 P.2d 412 (1968).

A perpetual injunction should not be granted if, by changing the prior appropriator’s method or means of diversion, both parties can be supplied with water. The expense of changing the method or means of diversion, however, must be paid by the subsequent appropriator. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Constitutionality.

The ground water act is consistent with the constitutionally enunciated policy of promoting optimum development of water resources in the public interest. Baker v. Ore-Ida Foods, Inc., 95 Idaho 575, 513 P.2d 627 (1973).

Exemption for Domestic Wells.

Under the plain language of the 1951 ground water act, domestic wells were exempt from the provisions of that act and the exemption for domestic wells was not modified by the 1953 amendment to this section which established the reasonable pumping level limitation on the doctrine of first in time is first in right. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Prior Appropriation Rights.

The mere fact that the words “to clarify that domestic wells are exempted from the provisions of§ 42-229” appeared in the title of the 1978 amendment of§ 42-227 did not mean that the legislature never intended domestic wells to be exempt from the policy statements contained in this section. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011). Prior Appropriation Rights.

Prior to the enactment of the ground water act in 1951, the doctrine of prior appropriation, i.e., first in time is first in right, governed the appropriation of ground water in this state, and although this doctrine was modified in certain respects by the enactment of the ground water act, the law applicable to ground water used for domestic purposes was not significantly modified by the act. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Under the doctrine of prior appropriation, because the plaintiff’s domestic well was drilled prior to the defendant’s irrigation well, the plaintiff had a vested right to use the water for his domestic well. That right included the right to have the water available at the historic pumping level or to be compensated for expenses incurred if the defendant subsequent appropriator was allowed to lower the water table and the plaintiff was required to change his method or means of diversion in order to maintain his right to use the water. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

There is nothing in the language of this section that purports to permit a junior ground water appropriator to cause material injury to the water rights of a senior appropriator, as long as the junior appropriator is maintaining a reasonable pumping level. Clear Springs Foods, Inc. v. Spackman, 150 Idaho 790, 252 P.3d 71 (2011).

Public Policy.

In the enactment of the ground water act, the legislature decided, as a matter of public policy, that it sometimes may be necessary to modify private property rights in ground water in order to promote full economic development of the resource. Baker v. Ore-Ida Foods, Inc., 95 Idaho 575, 513 P.2d 627 (1973).

Pumping Level Unreasonable.

Although a senior appropriator may have had a prior right to ground water, if his means of appropriation demanded an unreasonable pumping level, his historic means of appropriation would not be protected. Baker v. Ore-Ida Foods, Inc., 95 Idaho 575, 513 P.2d 627 (1973).

Use of Underground Water.

Evidence that there was a dangerous depletion of the underground water in the area of the wells in question, although contradicted, was sufficient to support action of the trial court in enjoining landowners from using water from a newly constructed well on their land and requiring them to cap the well and remove the pump therefrom. State ex rel. Tappan v. Smith, 92 Idaho 451, 444 P.2d 412 (1968).

The total annual withdrawal of water from an aquifer is limited to the average annual recharge of the aquifer. Briggs v. Golden Valley Land & Cattle Co., 97 Idaho 427, 546 P.2d 382 (1976).

Water From Mining Activity.

Cited

Water emanating from a mine portal falls clearly within the definition of public ground water which is subject to appropriation; the water is from an underground source which has been brought to the surface through the excavation of the mine. Branson v. Miracle, 107 Idaho 221, 687 P.2d 1348 (1984). Cited Musser v. Higginson, 125 Idaho 392, 871 P.2d 809 (1994).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — A Primer on Groundwater Law, Joseph W. Dellapenna. 49 Idaho L. Rev. 265 (2013).

Adaptive Resource Management: Using Idaho as an Example of How States Can Implement Effective Policies, Comment. 50 Idaho L. Rev. 293 (2014).

Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

§ 42-227. Drilling and use of wells for domestic purposes excepted.

The excavation and opening of wells and the withdrawal of water therefrom for domestic purposes shall not be subject to the permit requirement under section 42-229, Idaho Code; providing such wells and withdrawal devices are subject to inspection by the department of water resources and the department of environmental quality and providing further that the drilling of such wells shall be subject to the licensing provisions of section 42-238, Idaho Code. Rights to ground water for such domestic purposes may be acquired by withdrawal and use.

History.

1951, ch. 200, § 2, p. 423; am. 1970, ch. 187, § 1, p. 541; am. 1978, ch. 324, § 1, p. 819; am. 2001, ch. 103, § 79, p. 253.

STATUTORY NOTES

Cross References.

Department of environmental quality,§ 39-104.

CASE NOTES

In General.

Under the plain language of the 1951 ground water act, domestic wells were exempt from the provisions of that act and the exemption for domestic wells was not modified by the 1953 amendment to§ 42-226 which established the reasonable pumping level limitation on the doctrine of first in time is first in right. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Domestic wells drilled prior to 1978 are exempt from the provisions of§ 42-226. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Legislative Intent.

Prior Appropriation Rights.

The mere fact that the words “to clarify that domestic wells are exempted from the provisions of§ 42-229” appeared in the title of the 1978 amendment to this section did not mean that the legislature never intended domestic wells to be exempt from the policy statements contained in§ 42-226. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011). Prior Appropriation Rights.

Prior to the enactment of the ground water act in 1951, the doctrine of prior appropriation, i.e., first in time is first in right, governed the appropriation of ground water in this state. Although this doctrine was modified in certain respects by the enactment of the ground water act, the law applicable to ground water used for domestic purposes was not significantly modified by the act. Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Subsequent Appropriators.

§ 42-228. Drilling and use of wells for drainage or recovery purposes excepted.

The excavation and opening of wells and the withdrawal of water therefrom for the sole purpose of improving or preserving the utility of land by draining them shall not be forbidden or governed by this act, and, likewise, there shall be excepted from the provisions of this act the excavation and opening of wells and withdrawal of water therefrom by canal companies, irrigation districts, and other owners of irrigation works for the sole purpose of recovering ground water resulting from irrigation under such irrigation works for further use on or drainage of lands to which the established water rights of the parties constructing the wells are appurtenant; providing that the drilling of such wells shall be subject to the licensing provisions of section 42-238, Idaho Code.

History.

1951, ch. 200, § 3, p. 423; am. 1970, ch. 187, § 2, p. 541.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” in this section refers to S.L. 1951, chapter 200, which is codified as§§ 42-226 to 42-231, 42-233a, 42-237, 42-237a to 42-237g, 42-238a, 42-238b, and 42-239.

The phrase “the effective date of this act” in the first sentence refers to the effective date of S.L. 1963, chapter 216, which was effective March 25, 1963.

§ 42-229. Methods of appropriation. — The right to the use of ground water of this state may be acquired only by appropriation. Such appropriation may be perfected by means of the application permit and license procedure as provided in this act; 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. All proceedings commenced prior to the effective date of this act for the acquisition of rights to the use of ground water under the provisions of sections 42-201

42-225, Idaho Code, may be completed under the provisions of said sections and rights to the use of ground water may be thereby acquired. But the administration of all rights to the use of ground water, whenever or however acquired or to be acquired, shall, unless specifically excepted herefrom, be governed by the provisions of this act.

History.

1951, ch. 200, § 4, p. 423; am. 1963, ch. 216, § 1, p. 623.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” in this section refers to S.L. 1951, chapter 200, which is codified as§§ 42-226 to 42-231, 42-233a, 42-237, 42-237a to 42-237g, 42-238a, 42-238b, and 42-239.

The phrase “the effective date of this act” in the second sentence refers to the effective date of S.L. 1951, chapter 200, which was effective May 11, 1951.

CASE NOTES

Ground Water Right.

Unless a ground water right is specifically excepted from the requirements of this section, it is subject to the provisions of the 1951 Idaho ground water act,§§ 42-226 to 42-239. In re Delivery Call of A&B Irrigation Dist., 153 Idaho 500, 284 P.3d 225 (2012).

Injunction to Prevent Appropriation.

Relation to Other Law.

Landowners could not use water from a well located on a section of their land without perfecting their appropriation of such water as required by this act and, where their application for such appropriation was denied by the state reclamation engineer (now the director of the department of water resources) and there was evidence, although contradicted, that there was a dangerous depletion of the underground water in the area, the district court could, on application of the state reclamation engineer (now the director of the department of water resources), enjoin their use of such water and require them to cap the well and remove the pump therefrom. State ex rel. Tappan v. Smith, 92 Idaho 451, 444 P.2d 412 (1968). Relation to Other Law.

Section 42-1426 provides for a waiver of the mandatory permit requirements of§ 42-201 and/or this section and a decree of a new water right for an enlarged use of the original water right. Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996).

Cited

Baker v. Ore-Ida Foods, Inc., 95 Idaho 575, 513 P.2d 627 (1973); Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

§ 42-230. Definitions.

“Ground water” is all water under the surface of the ground whatever may be the geological structure in which it is standing or moving.
1. All ground water having a temperature of greater than eighty-five (85) degrees Fahrenheit and less than two hundred twelve (212) degrees Fahrenheit in the bottom of a well shall be classified and administered as a low temperature geothermal resource pursuant to section 42-233, Idaho Code.
2. All ground water having a temperature of two hundred twelve (212) degrees Fahrenheit or more in the bottom of a well shall be classified as a geothermal resource pursuant to section 42-4002, Idaho Code, and shall be administered as a geothermal resource pursuant to chapter 40, title 42, Idaho Code.
“Well” is an artificial excavation or opening in the ground more than eighteen (18) feet in vertical depth below land surface by which ground water of any temperature is sought or obtained.
“Well driller” is any person or group of persons who excavate or open a well or wells for compensation or otherwise upon the land of the well driller or upon other land. Well driller does not include those persons who construct a well on their own property for their own use without the aid of any power driven mechanical equipment.
“Well drilling” or “drilling” for purposes of this chapter is the act of constructing a new well or deepening or modifying an existing well by any percussion, rotary, boring, digging, jetting, or augering method.
“Water right” is the legal right, however acquired, to the use of water for beneficial purposes.
“Operator” is the employee of the well driller who, through his work at the drilling site, causes the well to be drilled.
“Low temperature geothermal resource well” means a well which is capable of producing a low temperature geothermal resource from which fluids can be produced which have value by virtue of the heat contained therein.

History.

1951, ch. 200, § 5, p. 423; am. 1970, ch. 187, § 3, p. 541; am. 1971, ch. 149, § 1, p. 739; am. 1980, ch. 209, § 1, p. 479; am. 1987, ch. 347, § 2, p. 741; am. 1990, ch. 319, § 3, p. 870.

CASE NOTES

Decrees.

Water From Mining Activity.

Nowhere in this title is the director obligated to accept a prior decree issued in a private adjudication as being conclusive proof of the nature of a water right. Although a decree evidences a legal right to the use of water, it does not obligate the director to make a recommendation contrary to his findings. State v. Hagerman Water Right Owners, Inc., 130 Idaho 736, 947 P.2d 409 (1997). Water From Mining Activity.

Cited

State ex rel. Tappan v. Smith, 92 Idaho 451, 444 P.2d 412 (1968); A & B Irrigation Dist. v. Aberdeen-American Falls Ground Water Dist. (In re SRBA Case No. 39576), 141 Idaho 746, 118 P.3d 78 (2005).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — A Summary of Revisions to Idaho’s Oil and Gas Conservation Act and Rules: Responding as Production in Idaho Nears Reality, John F. Peiserich and Michael R. Christian. 49 Idaho L. Rev. 497 (2013).

§ 42-231. Duties of the director of the department of water resources.

In addition to other duties prescribed by law, it shall be the duty of the director of the department of water resources to conduct investigations, surveys and studies relative to the extent, nature and location of the ground water resources of this state; and to this end, the director of the department of water resources may, on behalf of the state of Idaho enter into cooperative investigations, researches, and studies with any agency or department of the government of the United States, or any other state or public authority of this state, or private agencies or individuals. It shall likewise be the duty of the director of the department of water resources to control the appropriation and use of the ground water of this state as in this act provided and to do all things reasonably necessary or appropriate to protect the people of the state from depletion of ground water resources contrary to the public policy expressed in this act.

History.

1951, ch. 200, § 6, p. 423; am. 1953, ch. 182, § 2, p. 277.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” in the last sentence refers to S.L. 1953, chapter 182, which is codified as§§ 42-226, 42-231, 42-233a, 42-237, 42-237a to 42-237g, 42-238a, 42-238b, and 42-239.

CASE NOTES

Cited

State ex rel. Tappan v. Smith, 92 Idaho 451, 444 P.2d 412 (1968).

§ 42-232. Ground water recharge program — Negotiations with bureau of reclamation.

The director of the department of water resources is hereby authorized and directed to institute negotiations with the United States bureau of reclamation and the senators and representatives representing the state of Idaho in the congress of the United States for purposes of examining the possibility of incorporating an artificial ground water recharge program or project into those water projects for withdrawal of waters from ground water basins in the Coltman area of Bonneville County, the Menan Buttes area in Madison county, or any other area contemplated by the bureau of reclamation, which have been authorized by congress as a part of the Salmon Falls Creek irrigation project located in Twin Falls county.

History.

I.C.,§ 42-232, as added by 1978, ch. 366, § 3, p. 955.

STATUTORY NOTES

Prior Laws.

Former§ 42-232, which comprised S.L. 1951, ch. 200, § 7, p. 423; am. 1953, ch. 182, § 3, p. 277, was repealed by S.L. 1967, ch. 374, § 13.

Compiler’s Notes.

For more on the bureau of reclamation, see http://www.usbr.gov .

§ 42-233. Low temperature geothermal resource.

The right to the use of low temperature geothermal resources of this state shall be acquired by appropriation, except as provided in subsection (2) of this section. The appropriation may be perfected by means of the application, permit and license procedure as provided in this chapter for ground water, provided that low temperature geothermal resources shall be utilized primarily for heat value and secondarily for the value as water. Usage of a low temperature geothermal resource primarily for reasons other than heat value is not a beneficial use of the resource, unless the director of the department of water resources exempts the proposed use. The director may exempt a proposed use if the director concludes:
1. The proposed use will not detrimentally affect existing water rights, including water rights for low temperature geothermal water;
2. The proposed use will not diminish the temperature of or artesian pressure of the low temperature geothermal aquifer; and
3. There is no economically viable source of water having a bottom hole temperature of eighty-five (85) degrees or less in a well available.
The use of low temperature geothermal resources for the development and operation of oil and gas wells permitted under section 47-316, Idaho Code, shall not be subject to the provisions of this chapter. However, the director of the department of water resources may initiate a contested case in accordance with the provisions of chapter 52, title 67, Idaho Code, and the rules of procedure promulgated by the department, if the department has reason to believe that an oil and gas well will cause, is causing or has caused significant negative impacts to pressure, temperature, quality necessary for beneficial use or quantity of water available to water rights existing at the time of the development of the oil and gas well or to a water resource that can be beneficially used. The evidence of causation must come from the department or be credible information from a water right or a geothermal resource permit holder existing at the time of the development of the oil and gas well. It shall be the burden of the entity operating the oil and gas well to establish that it will not cause, is not causing and has not caused significant negative impacts to pressure, temperature, quality necessary for beneficial use or quantity of water available to existing water rights existing at the time of the development of the oil and gas well or to a water resource that can be beneficially used. If the director determines that the well will cause, is causing or has caused significant negative impacts to pressure, temperature, quality necessary for beneficial use or quantity of water available to a water right existing at the time of the development of the oil and gas well or to a water resource that can be beneficially used, the director may order the operator to take measures to mitigate those impacts.
Any owner of a well who engages in the drilling, redrilling, modifying or deepening of any low temperature geothermal well shall file with the director of the department of water resources a surety bond or cash bond in the penal sum of not less than five thousand dollars ($5,000) or more than twenty thousand dollars ($20,000) as determined by the director of the department of water resources based on the temperature, depth and pressure of the resource, the size and depth of the well, and any other relevant factors. The surety or cash bond shall be conditioned upon the proper compliance with the provisions of this chapter and chapter 40, title 42, Idaho Code, and rules and regulations promulgated pursuant thereto. The bond shall remain in effect for one (1) year following completion of drilling, redrilling, modifying or deepening of the well or until released in writing by the director, whichever occurs first. (4) All permits, licenses, decreed rights and valid claims to a right to the use of ground water which would be classified as a low temperature geothermal resource having a priority date prior to July 1, 1987, remain valid and the bond provisions of subsection (3) of this section are not applicable unless the well from which the right diverts water is modified or deepened. The provisions of this section shall not be applicable to all permits, licenses and rights to the use of geothermal resources as defined in chapter 40, title 42, Idaho Code, which would be classified as a low temperature geothermal resource under this section, issued or proclaimed prior to July 1, 1987, and the bond provisions of subsection (3) of this section are not applicable to such wells.

History.

I.C.,§ 42-233, as added by 1987, ch. 347, § 3, p. 741; am. 1988, ch. 311, § 1, p. 967; am. 2012, ch. 111, § 4, p. 302; am. 2017, ch. 271, § 29, p. 677; am. 2019, ch. 51, § 1, p. 139.

STATUTORY NOTES

Prior Laws.

Former§ 42-233, which comprised S.L. 1951, ch. 200, § 8, p. 423; am. 1953, ch. 182, § 4, p. 277, was repealed by S.L. 1967, ch. 374, § 14; am. 2017, ch. 271, § 29.

Amendments.

The 2012 amendment, by ch. 111, inserted “except as provided in subsection (2) of this section” at the end of the first sentence in subsection (1); added subsection (2); and redesignated former subsections (2) and (3) as present subsections (3) and (4).

The 2017 amendment, by ch. 271, substituted “section 47-316, Idaho Code” for “section 47-320, Idaho Code” near the middle of the first sentence in subsection (2).

The 2019 amendment, by ch. 51, in subsection (a), rewrote the last sentence which formerly read: “The director may exempt a proposed use if the director finds that the proposed use satisfies the following criteria: (i) there is no feasible alternative use of the resource; (ii) there is no economically viable source of water having a bottom hole temperature of eighty-five (85) degrees or less in a well available; and (iii) the exemption is in the public interest,” designating that text as paragraphs (a) to (c).

Compiler’s Notes.

Section 31 of S.L. 2017, ch. 271 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act”.

Effective Dates.

Section 7 of S.L. 2012, ch. 111 declared an emergency. Approved March 23, 2012. Section 32 of S.L. 2017, ch. 271 declared an emergency. Approved April 6, 2017.

RESEARCH REFERENCES

Idaho Law Review.

§ 42-233a. “Critical ground water area” defined — Public hearings — Publication of notice — Granting or denial of application — Appeal.

“Critical ground water area” is defined as any ground water basin, or designated part thereof, not having sufficient ground water to provide a reasonably safe supply for irrigation of cultivated lands, or other uses in the basin at the then-current rates of withdrawal, or rates of withdrawal projected by consideration of valid and outstanding applications and permits, as may be determined and designated, from time to time, by the director of the department of water resources.

Upon the designation of a “critical ground water area,” it shall be the duty of the director of the department of water resources to conduct a public hearing in the area concerned to apprise the public of such designation and the reasons therefor. Notice of the hearing shall be published in two (2) consecutive weekly issues of a newspaper of general circulation in the area immediately prior to the date set for hearing.

In the event an area has been designated as a “critical ground water area” and the director of the department of water resources desires to remove such designation or modify the boundaries thereof, he shall likewise conduct a public hearing following similar publication of notice prior to taking such action.

When a “critical ground water area” is designated by the director of the department of water resources, or at any time thereafter during the existence of the designation, the director may approve a ground water management plan for the area. The ground water management plan shall provide for managing the effects of ground water withdrawals on the aquifer from which withdrawals are made and on any other hydraulically connected sources of water.

In the event an application for permit is made with respect to an area that has not been designated as a critical ground water area, the director of the department of water resources shall forthwith issue a permit in accordance with the provisions of section 42-203A and section 42-204, Idaho Code, provided said application otherwise meets the requirements of such sections; and further provided that if the applicant proposes to appropriate water from a ground water basin or basins in an amount which exceeds ten thousand (10,000) acre-feet per year either from a single or a combination of diversion points, and the director determines that the withdrawal of such amount will substantially and adversely affect existing pumping levels of appropriators pumping from such basin or basins, or will substantially and adversely affect the amount of water available for withdrawal from such basin or basins under existing water rights, the director may require that the applicant undertake such recharge of the ground water basin or basins as will offset that withdrawal adversely affecting existing pumping levels or water rights.

In the event an application for permit is made in an area which has been designated as a critical ground water area, if the director of the department of water resources from the investigation made by him on said application as herein provided, or from the investigation made by him in determining the area to be critical, or from other information that has come officially to his attention, has reason to believe that there is insufficient water available subject to appropriation at the location of the proposed well described in the application, the director of the department of water resources may forthwith deny said application; provided, however, that if ground water at such location is available in a lesser amount than that applied for, the director of the department of water resources may issue a permit for the use of such water to the extent that such water is available for such appropriation. The director may require all water right holders within a critical ground water area to report withdrawals of ground water and other necessary information for the purpose of assisting him in determining available ground water supplies and their usage.

The director, upon determination that the ground water supply is insufficient to meet the demands of water rights within all or portions of a critical ground water area, shall order those water right holders on a time priority basis, within the area determined by the director, to cease or reduce withdrawal of water until such time as the director determines there is sufficient ground water. Water right holders participating in an approved ground water management plan shall not be subject to administration on a time priority basis as long as they are in compliance with the ground water management plan.

Any applicant dissatisfied with the decision of the director of the department of water resources may appeal to the district court in the manner provided for in section 42-237e, Idaho Code.

History.

1951, ch. 200, § 9, as added by 1953, ch. 182, § 5, p. 277; am. 1963, ch. 216, § 2, p. 623; am. 1967, ch. 187, § 1, p. 616; am. 1978, ch. 366, § 2, p. 955; am. 1995, ch. 286, § 1, p. 949; am. 2000, ch. 85, § 5, p. 181; am. 2018, ch. 41, § 1, p. 103.

STATUTORY NOTES

Amendments.

The 2018 amendment, by ch. 41, substituted the present last sentence in the eighth paragraph for the former last sentence, which read: “Such order shall be given only before September 1 and shall be effective for the growing season during the year following the date the order is given.”

CASE NOTES

Injunction to Prevent Use.

The district court properly enjoined landowners from pumping water from a well, a permit for the use of which had been denied by the state reclamation engineer (now the director of the department of water resources) because located in a critical ground water area, upon evidence, although contradicted, that there was a dangerous depletion of ground water in the area. State ex rel. Tappan v. Smith, 92 Idaho 451, 444 P.2d 412 (1968).

Cited

Carter v. Rich, 111 Idaho 684, 726 P.2d 1135 (1986).

§ 42-233b. Ground water management area.

“Ground water management area” is defined as any ground water basin or designated part thereof which the director of the department of water resources has determined may be approaching the conditions of a critical ground water area. Upon designation of a ground water management area the director shall publish notice in two (2) consecutive weekly issues of a newspaper of general circulation in the area.

When a ground water management area is designated by the director of the department of water resources, or at any time thereafter during the existence of the designation, the director may approve a ground water management plan for the area. The ground water management plan shall provide for managing the effects of ground water withdrawals on the aquifer from which withdrawals are made and on any other hydraulically connected sources of water.

Applications for permits made within a ground water management area shall be approved by the director only after he has determined on an individual basis that sufficient water is available and that other prior water rights will not be injured.

The director may require all water right holders within a designated water management area to report withdrawals of ground water and other necessary information for the purpose of assisting him in determining available ground water supplies and their usage.

The director, upon determination that the ground water supply is insufficient to meet the demands of water rights within all or portions of a water management area, shall order those water right holders on a time priority basis, within the area determined by the director, to cease or reduce withdrawal of water until such time as the director determines there is sufficient ground water. Water right holders participating in an approved ground water management plan shall not be subject to administration on a time priority basis so long as they are in compliance with the ground water management plan.

History.

I.C.,§ 42-233b, as added by 1982, ch. 90, § 1, p. 164; am. 2000, ch. 85, § 6, p. 181; am. 2016, ch. 297, § 1, p. 848.

STATUTORY NOTES

Prior Laws.

Former§ 42-233b, which comprised S.L. 1910, ch. 200, § 10, as added by 1953, ch. 182, § 5, p. 277, was repealed by S.L. 1963, ch. 216, § 4.

Amendments.

The 2016 amendment, by ch. 297, rewrote the last sentence in the last paragraph of the section, which formerly read: “Such order shall be given only before September 1 and shall be effective for the growing season during the year following the date the order is given”.

Effective Dates.

Section 2 of S.L. 1982, ch. 90 declared an emergency. Approved March 17, 1982.

§ 42-234. Ground water recharge — Authority of department to grant permits and licenses.

It is the policy of the state of Idaho to promote and encourage the optimum development and augmentation of the water resources of this state. The legislature deems it essential, therefore, that water projects designed to advance this policy be given maximum support. The legislature finds that the use of water to recharge ground water basins in accordance with Idaho law and the state water plan may enhance the full realization of our water resource potential by furthering water conservation and increasing the water available for beneficial use.
The legislature hereby declares that the appropriation of water for purposes of ground water recharge shall constitute a beneficial use of water. The director of the department of water resources is authorized to issue permits and licenses for the purpose of ground water recharge, pursuant to the provisions of this chapter and in compliance with other applicable Idaho law and the state water plan.
The director of the department of water resources may regulate the amount of water which may be diverted for recharge purposes and may reduce such amount, even though there is sufficient water to supply the entire amount originally authorized by permit or license. To facilitate necessary financing of an aquifer recharge project, the director may fix a term of years in the permit or license during which the amount of water authorized to be diverted shall not be reduced by the director under the provisions of this subsection.
To ensure that other water rights are not injured by the operations of an aquifer recharge project, the director of the department of water resources shall have the authority to approve, disapprove or require alterations in the methods employed to achieve ground water recharge. In the event that the director determines that the methods of operation are adversely affecting existing water rights or are creating conditions adverse to the beneficial use of water under existing water rights, the director shall order the cessation of operations until such alterations as may be ordered by the director have been accomplished or such adverse effects otherwise have been corrected.
The legislature further recognizes that incidental ground water recharge benefits are often obtained from the diversion and use of water for various beneficial purposes. However, such incidental recharge may not be used as the basis for claim of a separate or expanded water right. Incidental recharge of aquifers which occurs as a result of water diversion and use that does not exceed the vested water right of water right holders is in the public interest. The values of such incidental recharge shall be considered in the management of the state’s water resources.

History.

I.C.,§ 42-234, as added by 1978, ch. 366, § 1, p. 955; am. 1994, ch. 433, § 1, p. 1397; am. 2009, ch. 242, § 1, p. 743.

STATUTORY NOTES

Prior Laws.

Former§ 42-234, which comprised S.L. 1951, ch. 200, § 9(11), p. 423; am. 1953, ch. 182, § 6, p. 277, was repealed by S.L. 1967, ch. 374, § 15.

Amendments.

The 2009 amendment, by ch. 242, substituted the present section heading for “Ground water recharge projects — Authority of department to grant permits”; in subsection (1), substituted “use of water” for “projects” and “ground water basins in accordance with Idaho law and the state water plan may enhance” for “ground water basins in Idaho, may enhance”; added subsections (3) and (4) and redesignated former subsection (3) as subsection (5), and rewrote subsection (2) to the extent that a detailed comparison is impracticable.

Effective Dates.

Section 2 of S.L. 1994, ch. 433 declared an emergency. Approved April 7, 1994.

CASE NOTES

Recharge.

Recharge is a statutorily recognized beneficial use under subsection (2). As such, it must be included in the purpose of use element, pursuant to§ 42-1411, before a water right may be used for recharge. City of Blackfoot v. Spackman, 162 Idaho 302, 396 P.3d 1184 (2017).

OPINIONS OF ATTORNEY GENERAL

Swan Falls Agreement.

The plain terms of the Swan Falls Agreement, as well as the facts and circumstances surrounding the agreement, conclusively demonstrate the parties’ intent that the hydropower water rights held in trust by the state would be subordinated to all beneficial upstream uses approved in accordance with state law, including aquifer recharge. The Swan Falls Agreement and implementing legislation also demonstrate that the provisions in subsection (2) of this section and§ 42-234(2) regarding the agreement only created an incidental benefit in favor of Idaho Power and did not give rise to any vested rights or priorities.OAG 06-2.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Adaptive Resource Management: Using Idaho as an Example of How States Can Implement Effective Policies, Comment. 50 Idaho L. Rev. 293 (2014).

Understanding the 1984 Swan Falls Settlement, Clive J. Strong & Michael C. Orr. 52 Idaho L. Rev. 223 (2016).

§ 42-235. Drilling permits.

Prior to beginning construction of any well, or changing the construction of any well, the driller or well owner shall obtain a permit from the director of the department of water resources to protect the public health, safety and welfare and the environment, and to prevent the waste of water or mixture of water from different aquifers. There shall be a seventy-five dollar ($75.00) charge for the permit if the well is to be used for domestic or monitoring purposes. If the well is to be used for other than domestic or monitoring purposes, the charge for the permit shall be two hundred dollars ($200). All moneys received pursuant to this section shall be credited to the water administration account. The director may provide a blanket drilling permit for site specific monitoring programs which will determine the quality, quantity, temperature, pressure or other attributes of aquifers. The application for a blanket permit shall include a design proposal prepared by a licensed engineer or licensed geologist which shall describe the overall drilling program and all relevant technical features of the wells to the satisfaction of the director. Progress reports, completion and other data may be required as provided by rule. The fee for the blanket permit shall be one hundred dollars ($100) plus an additional fifty dollars ($50.00) per well. A driller or well owner violating any provision of this section shall be guilty of a misdemeanor and shall also be subject to the enforcement procedures of section 42-1701B, Idaho Code.

History.

I.C.,§ 42-235, as added by 1987, ch. 347, § 4, p. 741; am. 1990, ch. 164, § 1, p. 361; am. 1996, ch. 267, § 1, p. 868; am. 1998, ch. 173, § 1, p. 595.

STATUTORY NOTES

Cross References.

Water administration account,§ 42-238a.

Prior Laws.

Former§ 42-235, which comprised S.L. 1951, ch. 200, § 10(12), p. 423; am. 1953, ch. 182, § 7, p. 277, was repealed by S.L. 1967, ch. 374, § 16.

§ 42-236. Form and effect of license. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised 1951, ch. 200, § 11(13), p. 423, was repealed by S.L. 1967, ch. 374, § 17.

§ 42-237. Abandonment of water right — Change of point of diversion and place of use.

The provisions relating to loss of water rights by nonuse and abandonment, as set forth in section 42-222[, Idaho Code], shall apply to ground water rights. The provisions of section 42-222[, Idaho Code], relating to change of point of diversion and change of place of use of water, shall be applicable to waters accruing from water rights, provided, that the withdrawal of waters from the same ground water supply at another location in lieu of withdrawal at the original location shall be considered a change of point of diversion.

History.

1951, ch. 200, § 12(14), p. 423; am. 1953, ch. 182, § 7, p. 277.

STATUTORY NOTES

Compiler’s Notes.

As amended by S.L. 1953, ch. 182, § 7, this section, originally numbered § 12, was amended to become § 14 of S.L. 1951, ch. 200.

The bracketed insertions were added by the compiler to conform to the statutory citation style.

CASE NOTES

Change of Diversion.

§ 42-237a. Powers of the director of the department of water resources.

In the administration and enforcement of this act and in the effectuation of the policy of this state to conserve its ground water resources, the director of the department of water resources in his sole discretion, is empowered:

a. To require all flowing wells to be so capped or equipped with valves that the flow of water can be completely stopped when the wells are not in use.
b. To require both flowing and nonflowing wells to be so constructed and maintained as to prevent the waste of ground waters through leaky wells, casings, pipes, fittings, valves or pumps either above or below the land surface.
c. To prescribe uniform scientific methods to determine water levels in and calculate waters withdrawn from wells.
d. To go upon all lands, both public and private, for the purpose of inspecting wells, pumps, casings, pipes, and fittings, including wells used or claimed to be used for domestic purposes.
e. To order the cessation of use of a well pending the correction of any defect that the director of the department of water resources has ordered corrected.
f. To commence actions to enjoin the illegal opening or excavation of wells or withdrawal or use of water therefrom and to appear and become a party to any action or proceeding pending in any court or administrative agency when it appears to the director of the department of water resources that the determination of such action or proceeding might result in depletion of the ground water resources of the state contrary to the public policy expressed in this act.
g. To supervise and control the exercise and administration of all rights to the use of ground waters and in the exercise of this discretionary power he may initiate administrative proceedings to prohibit or limit the withdrawal of water from any well during any period that he determines that water to fill any water right in said well is not there available. To assist the director of the department of water resources in the administration and enforcement of this act, and in making determinations upon which said orders shall be based, he may establish a ground water pumping level or levels in an area or areas having a common ground water supply as determined by him as hereinafter provided. Water in a well shall not be deemed available to fill a water right therein if withdrawal therefrom of the amount called for by such right would affect, contrary to the declared policy of this act, the present or future use of any prior surface or ground water right or result in the withdrawing of the ground water supply at a rate beyond the reasonably anticipated average rate of future natural recharge. However, the director may allow withdrawal at a rate exceeding the reasonably anticipated rate of future natural recharge if the director finds it is in the public interest and if it satisfies the following criteria:
1. A program exists or likely will exist which will increase recharge or decrease withdrawals within a time period acceptable to the director to bring withdrawals into balance with recharge.
2. Holders of senior rights to use ground water will not be caused thereby to pump water from below the established reasonable pumping level or levels.

In connection with his supervision and control of the exercise of ground water rights the director of the department of water resources shall also have the power to determine what areas of the state have a common ground water supply and whenever it is determined that any area has a ground water supply which affects the flow of water in any stream or streams in an organized water district, to incorporate such area in said water district; and whenever it is determined that the ground water in an area having a common ground water supply does not affect the flow of water in any stream in an organized water district, to incorporate such area in a separate water district to be created in the same manner provided for in section 42-604 of title 42, Idaho Code. The administration of water rights within water districts created or enlarged pursuant to this act shall be carried out in accordance with the provisions of title 42, Idaho Code, as the same have been or may hereafter be amended, except that in the administration of ground water rights either the director of the department of water resources or the watermaster in a water district or the director of the department of water resources outside of a water district shall, upon determining that there is not sufficient water in a well to fill a particular ground water right therein by order, limit or prohibit further withdrawals of water under such right as hereinabove provided, and post a copy of said order at the place where such water is withdrawn; provided, that land, not irrigated with underground water, shall not be subject to any allotment, charge, assessment, levy, or budget for, or in connection with, the distribution or delivery of water. h. To order the installation and maintenance of approved measuring devices consistent with the purposes of section 42-701, Idaho Code.

History.

1951, ch. 200, § 15, as added by 1953, ch. 182, § 8, p. 277; am. 1977, ch. 258, § 1, p. 757; am. 1987, ch. 347, § 5, p. 741; am. 1994, ch. 430, § 2, p. 1388; am. 1994, ch. 450, § 3, p. 1434.

STATUTORY NOTES

Amendments.

This section was amended by two 1994 acts which appear to be compatible and have been compiled together.

The 1994 amendment, by ch. 430, § 2, added subdivision h.

The 1994 amendment, by ch. 450, § 3, in the introductory paragraph added “in his sole discretion,”; and in the first sentence of subdivision g., deleted “hereafter acquired” preceding “to the use of”; added “discretionary” preceding “power”; and substituted “initiate administrative proceedings to” for “by summary order,”.

Compiler’s Notes.

The term “this act” used throughout this section refers to S.L. 1951, chapter 200, as amended by S.L. 1953, chapter 182, which are codified throughout chapter 2, title 42, Idaho Code.

Effective Dates.

Section 3 of S.L. 1994, ch. 430 declared an emergency. Approved April 7, 1994.

Section 6 of S.L. 1994, ch. 450 declared an emergency and provided that this act shall apply to all calls for distribution of water pending at the time of passage and approval. Approved April 11, 1994. CASE NOTES

Injunction to Prevent Use.

Since mining of an aquifer was explicitly forbidden by this statute, the district court did not err in enjoining pumping beyond the reasonably anticipated average rate of future natural recharge. Baker v. Ore-Ida Foods, Inc., 95 Idaho 575, 513 P.2d 627 (1973); see also Briggs v. Golden Valley Land and Cattle Co., 97 Idaho 427, 546 P.2d 382 (1976).

Well Water.

This section provides that well water cannot be used to fill a ground water right if doing so would either (a) cause material injury to any prior surface or ground water right or (b) result in withdrawals from the aquifer exceeding recharge. Clear Springs Foods, Inc. v. Spackman, 150 Idaho 790, 252 P.3d 71 (2011).

§ 42-237b. Administrative determination of adverse claims.

Whenever any person owning or claiming the right to the use of any surface or ground water right believes that the use of such right is being adversely affected by one or more user[s] of ground water rights of later priority, or whenever any person owning or having the right to use a ground water right believes that the use of such right is being adversely affected by another’s use of any other water right which is of later priority, such person, as claimant, may make a written statement under oath of such claim to the director of the department of water resources.

Such statement shall include:

The name and post-office address of the claimant.
A description of the water right claimed by the claimant, with amount of water, date of priority, mode of acquisition, and place of use of said right, if said right is for irrigation, a legal description of the lands to which such right is appurtenant.
A similar description of the respondent’s water right so far as is known to the claimant.
A detailed statement in concise language of the facts upon which the claimant founds his belief that the use of his right is being adversely affected.

Upon receipt of such statement, if the director of the department of water resources deems the statement sufficient and meets the above requirements, the director of the department of water resources shall issue a notice setting the matter for hearing before a local ground water board, constituted and formed as in this act provided. The person or persons against whom such claim is directed and who are asserted to be interfering with the claimant’s rights shall in such proceedings be known as respondents. The notice shall be returned to the claimant who shall cause the same to be served upon the respondent together with a copy of the statement. Such service shall be made at least five (5) days before the time fixed for hearing and in the same manner that service of summons is made in a civil action. Proof of service of notice shall be made to the director of the department of water resources by the claimant at least two (2) days before the hearing.

History.

1951, ch. 200, § 16, as added by 1953, ch. 182, § 8, p. 277.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” in the first sentence in the last paragraph refers to S.L. 1951, chapter 200, as amended by S.L. 1953, chapter 182, which are codified throughout chapter 2, title 42, Idaho Code.

The bracketed letter “s” in the first paragraph was inserted by the compiler to correct the enacting legislation.

§ 42-237c. Hearing and order.

Hearing on the statement and any answer filed by the respondent shall be had in the county for which such local ground water board was appointed. The hearing shall be conducted before the board under reasonable rules and regulations of procedure prescribed by the director of the department of water resources. All parties to the hearing as well as the board itself shall have the right to subpoena witnesses who shall be sworn by the board and testify under oath at the hearing. All parties to the hearing shall be entitled to be heard in person or by attorney. Upon such hearing the board shall have authority to determine the existence and nature of the respective water rights claimed by the parties and whether the use of the junior right affects, contrary to the declared policy of this act, the use of the senior right. If the board finds that the use of any junior right or rights so affect the use of senior rights, it may order the holders of the junior right or rights to cease using their right during such period or periods as the board may determine and may provide such cessation shall be either in whole or in part or under such conditions for the repayment of water to senior right holders as the board may determine. Any person violating such an order made hereunder shall be guilty of a misdemeanor.

History.

1951, ch. 200, § 17, as added by 1953, ch. 182, § 8, p. 277.

STATUTORY NOTES

Cross References.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

Compiler’s Notes.

The term “this act” near the end of the fifth sentence refers to S.L. 1951, chapter 200, as amended by S.L. 1953, chapter 182, which are codified throughout chapter 2, title 42, Idaho Code.

CASE NOTES

Cited

Stevenson v. Steele, 93 Idaho 4, 453 P.2d 819 (1969).

§ 42-237d. Local ground water boards.

Whenever a written statement of claim as provided in section 42-237b[, Idaho Code,]hereof is filed with the director of the department of water resources, if the statement of the claimant is deemed sufficient by the director of the department of water resources and meets the requirements of section 42-237b[, Idaho Code], the said director of the department of water resources shall forthwith proceed to form a local ground water board for the purpose of hearing such claim. The said local ground water board shall consist of the director of the department of water resources, and a person who is a qualified engineer or geologist, appointed by the district judge of the judicial district which includes the county in which the well of respondent, or one of the respondents if there be more than one, is located, and a third member to be appointed by the other two, who shall be a resident irrigation farmer of the county in which the well of respondent, or one of the respondents if there be more than one, is located. None of such members shall be persons owning or claiming water right which may be affected by such claim, nor members of the board of directors of any irrigation district or canal company owning or claiming water rights affected by such claims. No employee of the state of Idaho other than said director of the department of water resources is eligible for appointment to a ground water board. Members of the board shall hold office until the board has finally disposed of the claim which it was appointed to hear. Such members shall serve without pay except that members other than the director of the department of water resources shall receive per diem of $25.00 together with reimbursement of expenses actually incurred during the time actually spent in the performance of official duties, such per diem and expenses to be paid from the ground water administration fund [water administration account] hereinafter created. Whenever such a local ground water board is needed to be formed in any county, the director of the department of water resources shall give notice of that fact to the district judge of the judicial district which includes the county in which the well of respondents, or one of the respondents if there be more than one, is located, and thereupon such judge shall appoint a person to be a member of such board. Upon qualification by such member, the third member shall be selected. The director of the department of water resources shall be the chairman of the board and custodian of all its records. He may be represented at any board meeting by a duly appointed, qualified and acting deputy director of the department of water resources.

History.

1951, ch. 200, § 18, as added by 1953, ch. 182, § 8, p. 277.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertions were added by the compiler to conform to the statutory citation style.

The bracketed insertion near the end of the fifth sentence was added by the compiler to correct the name of the referenced account. See§ 42-238a.

§ 42-237e. Appeals from actions of the director of the department of water resources.

Any person dissatisfied with any decision, determination, order or action of the director of the department of water resources, watermaster, or of any local ground water board made pursuant to this act may, if a hearing on the matter already has been held, seek judicial review pursuant to section 42-1701A(4), Idaho Code. If a hearing has not been held, any person aggrieved by the action of the director or watermaster may contest such action pursuant to section 42-1701A(3), Idaho Code.

History.

1951, ch. 200, § 19, as added by 1953, ch. 182, § 8, p. 277; am. 1980, ch. 238, § 8, p. 526.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” near the middle of the section refers to S.L. 1951, chapter 200, as amended by S.L. 1953, chapter 182, which are codified throughout chapter 2, title 42, Idaho Code.

CASE NOTES

Appeals to District Court.

Appeals to district courts from water board decisions must be tried de novo requiring case be remanded to district court where a plaintiff’s appeal for summary judgment was dismissed. Hart v. Stewart, 95 Idaho 781, 519 P.2d 1171 (1974).

Before a district court can obtain jurisdiction to hear an appeal from the decision of the director of the department of water resources, it must be shown that the appeal was properly perfected by serving notice on the director. Briggs v. Golden Valley Land & Cattle Co., 97 Idaho 427, 546 P.2d 382 (1976).

Issues on Appeal.

Motion for Rehearing.

Where defendants claimed that issue of effect of their pumping on the ground water supply should not have been considered on their appeal to the district court of order following hearing before department of reclamation (department of water resources), because issue had been considered in a previous hearing before ground water board which was not appealed, claim was rejected because defendants had themselves raised the issue in their notice of appeal to district court and pretrial order of district court judge appeared to indicate that the extent of the ground water supply and the effects of pumping upon that supply were issues to be tried. Stevenson v. Steele, 93 Idaho 4, 453 P.2d 819 (1969). Motion for Rehearing.

Although the rules of the department of water resources do not so provide, the court held that a motion for rehearing operated to toll the sixty-day time limit for appeals from water board decisions. Hart v. Stewart, 95 Idaho 781, 519 P.2d 1171 (1974).

§ 42-237f. Adjudication of water right. — The provisions of sections 42-1401

42-1405, Idaho Code, relative to adjudication of water rights shall be applicable to all water rights acquired under this act.

History.

1951, ch. 200, § 20, as added by 1953, ch. 182, § 8, p. 277.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” at the end of the section refers to S.L. 1951, chapter 200, as amended by S.L. 1953, chapter 182, which are codified throughout chapter 2, title 42, Idaho Code.

§ 42-237g. Penalties.

Any person violating any provision of this chapter, or any decision of the director of the department of water resources, or order of a local ground water board, shall be guilty of a misdemeanor and any continuing violation shall constitute a separate offense for each day during which such violation occurs, but nothing in this section or in the pendency or completion of any criminal action for enforcement hereof shall be construed to prevent the institution of any administrative enforcement action or civil action for injunctive or other relief for the enforcement of this chapter or the protection of rights to the lawful use of water.

History.

1951, ch. 200, § 15, as added by 1953, ch. 182, § 8, p. 277; am. 1963, ch. 216, § 3, p. 623; am. 1987, ch. 347, § 6, p. 741; am. 1994, ch. 450, § 4, p. 1434.

STATUTORY NOTES

Cross References.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

Effective Dates.

Section 5 of S.L. 1963, ch. 216 declared an emergency. Approved March 25, 1963.

Section 6 of S.L. 1994, ch. 450 declared an emergency and provided that this act shall apply to all calls for distribution of water pending at the time of passage and approval. Approved April 11, 1994.

§ 42-237h. Duties of the attorney general.

It shall be the duty of the attorney general to institute and prosecute civil enforcement actions or injunctive actions as provided in this chapter and to prosecute actions or proceedings for the enforcement of any criminal provisions of this chapter. The attorney general may delegate the authority and duty under this section to prosecute criminal actions to the prosecuting attorney of the county in which such a criminal action may arise.

History.

I.C.,§ 42-237h, as added by 1987, ch. 347, § 7, p. 741.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 42-238. Well drillers’ licenses and operator permits.

The director of the department of water resources is hereby vested with the duties relating to the licensing of well drillers and operators of well drilling equipment as provided for in this act so as to protect the ground water resources against waste and contamination. Qualifications for well drillers and operators of well drilling equipment shall be adopted by rule of the water resource board.
It shall be unlawful for any person to drill a well in Idaho, including wells excepted under sections 42-227 and 42-228, Idaho Code, without first complying with the provisions of this chapter. It shall be unlawful for any person to abandon a well in Idaho without first obtaining a driller’s license or receiving a waiver of the license requirement from the director of the department of water resources. Authorization is required from the director prior to the abandonment and the person abandoning the well shall submit to the director a report describing the abandonment.
For the purpose of this act, a “person” shall be defined as any individual who drills or abandons any well for himself or another in this state; it shall also be defined as any firm, copartnership, corporation or association which drills or abandons, or contracts to drill or abandon any well for hire or otherwise in this state.
A driller’s license shall be obtained by filing with the director an application in writing on a form provided by the director accompanied by a two hundred dollar ($200) application fee.
The director shall require that an applicant for a driller’s license successfully pass a written or oral examination, and be required to submit references and other detailed information describing past drilling experience to allow the director to determine if the applicant is qualified to drill wells in the state.
The water resource board shall adopt rules for licensing and renewal of licenses of well drillers in compliance with chapter 52, title 67, Idaho Code. The board is authorized to adopt rules on professional responsibility and continuing education requirements, not to exceed twenty (20) hours during each licensing period. Notwithstanding other provisions of this chapter, the director may refuse to issue or renew a driller’s license permanently or for a designated period of time if the driller has previously constructed wells improperly or constructed a well without a valid driller’s license. The rules may also allow for the director to issue a license with limitations on the type, size or depth of wells the applicant is authorized to construct. A copy of the proposed rules for licensing of well drillers shall be furnished to each well driller holding a current license at the time such proposed rules are promulgated or modified. The rules shall provide for the consideration of such factors as the applicant’s:
1. Knowledge of Idaho water laws and the rules of the water resource board in connection with the drilling of wells including proper well construction standards and procedures;
2. Knowledge of the various types of drilling tools and their use;
3. General knowledge of underground geology and ground water hydrology and their relation to well construction;
4. Ownership or access to equipment capable of adequately constructing a well;
5. Knowledge of types of well casing and their use;
6. Knowledge of special well drilling problems and their solution, including additional requirements for licensing for drillers who construct wells in areas of drilling concern or for the production of low temperature geothermal resources as defined in section 42-233, Idaho Code, and for the production of geothermal resources as provided in chapter 40, title 42, Idaho Code;
7. Previous drilling experience; and
8. History of compliance with well drilling laws and rules.
If it is determined that the applicant for a driller’s license is not qualified, the director shall deny the application. If it is determined that the applicant is qualified, a license shall be issued upon the filing with the director of a surety bond or cash bond in the penal sum of not less than five thousand dollars ($5,000), or more than twenty thousand dollars ($20,000) as determined by the director based on the applicant’s history of compliance with well drilling laws and rules, the size and depth of the wells the applicant proposes to drill, the complexity of the wells, the resource to be recovered, the area of operation of the applicant, and other relevant factors the director determines are in the public interest. The surety or cash bond shall be conditioned upon the proper compliance with the provisions of this chapter, chapter 40, title 42, Idaho Code, and rules promulgated pursuant thereto. Such bond shall be made payable to the director.
Employees of drilling firms, copartnerships, corporations or associations are authorized to operate drilling equipment for the driller after obtaining an operator’s permit from the director. Such employees shall be designated as operators.
1. A driller is responsible for adequate supervision of the operators during the construction of each well. A driller shall be responsible for the work of the operators employed by the driller.
2. An operator shall only operate drilling equipment for the driller listed on the operator’s permit.
3. An operator’s permit shall be obtained by filing with the director an application in writing on a form provided by the director accompanied by a twenty-five dollar ($25.00) application fee.
4. The applicant for an operator’s permit shall successfully complete a written or oral examination.
5. The water resource board shall adopt rules for the issuance, revocation and renewal of an operator’s permit in accordance with chapter 52, title 67, Idaho Code. The board is also authorized to adopt rules on professional responsibility and continuing education requirements not to exceed twenty (20) hours during each permitting period. The rules shall consider such factors as:
  1. Knowledge of Idaho water laws and the rules of the water resource board in connection with the drilling of wells;
  2. Demonstrated previous compliance with well drilling laws and rules including well construction standards; and
  3. General understanding of well drilling equipment, well construction techniques, basic geology and map reading.
Driller’s licenses and operator’s permits issued under this section shall expire on March 31 in the second year after issuance or upon revocation of the license by the director as provided for in this act. The driller’s license can be renewed effective April 1 of every other year upon written application on forms provided by the director and the filing of a one hundred dollar ($100) renewal fee plus a fifteen dollar ($15.00) renewal fee for each operator employed by the licensed driller. Drillers renewing licenses in 1997 shall be assessed a licensing fee prorated monthly based upon the annual fee schedule. Thereafter, driller licenses and operator permits will be renewed upon expiration for a two (2) year period. Documents demonstrating compliance with the continuing education requirements of the rules shall be submitted to the director along with other license and permit renewal documents. The renewal request must be accompanied by a new bond or evidence that the previous bond is still in effect. The renewal may then be granted by the director if he determines that the driller or operator has complied with the rules promulgated pursuant to this act. The fees collected for the licensing of well drillers and permitting of operators are nonrefundable and shall be deposited in the water administration fund [account] with the state treasurer with other fees collected by the director. (10) The licensed driller and permitted operators shall have a card on hand, provided by the director to indicate that the driller or operator is presently licensed or permitted at all times when he is operating the drilling equipment. The director may also require other identification to be posted on the drilling equipment as he deems helpful in the administration of this act.

(11) Well driller’s report. In order to enable a comprehensive survey of the extent and occurrence of the state’s ground water resource, every well driller is hereby required to keep available for inspection at the well site a daily well log and pertinent data concerning each well, and its construction or abandonment, that is constructed or abandoned under the driller’s direction in Idaho, including wells excepted under sections 42-227 and 42-228, Idaho Code, and complete a report on forms furnished by the director. These reports shall be properly prepared and signed by the driller and deposited with the director within thirty (30) days following the completion of the well. When the driller signs the report, the driller shall attest that all information on the report is accurate to the best of the driller’s knowledge and that the driller has met all minimum well construction standards, low temperature geothermal resource well construction standards, geothermal resource well construction standards and area of drilling concern standards as adopted by the water resource board. The reports shall become a permanent record in the office of the director for hydrologic and geologic analysis and research, and shall be available for public use. The report shall include such data as the director deems necessary to provide the information that will be valuable for future reference and study.

(12) Well construction standards. The water resource board shall adopt minimum standards for new well construction, modification and abandonment of existing wells, low temperature geothermal resource well construction and geothermal well construction in this state under the provisions of chapter 52, title 67, Idaho Code. Such standards shall require each well to be so constructed as to protect the ground water of the state from waste and contamination and may include additional requirements for wells drilled in “areas of drilling concern” as designated in accordance with subsection (15) of this section. Every licensed well driller will be furnished a copy of the adopted standards by the director, and will be required to construct or abandon each well in compliance with the adopted standards.

(13) Penalties for violation. Drilling of a well without first obtaining a license as required in this section shall be a criminal misdemeanor, and the employees of the department of water resources are hereby empowered to issue Idaho uniform citations, as provided by the rules of the court for magistrate’s division of the district court, to any person who drills a well without first obtaining the required license. When the director of the department of water resources determines that any person is in substantial violation of any provision of this section or any rule, permit, condition of approval or order issued or promulgated pursuant to this section, the director may commence an administrative enforcement action by issuing a written notice of violation in accordance with the provisions of section 42-1701B, Idaho Code. Failure of the driller to comply with the provisions of section 42-238(11), Idaho Code, will allow the director to proceed to collect the necessary data on the well or wells in any manner available to him, and the cost of this data collection may be charged against the driller’s bond in the amount of the expenses incurred up to the total amount of the bond. (a) Failure of the driller to comply with the provisions of section 42-238(11), Idaho Code, is also cause for the director to revoke an active license, or refuse to renew a license, until such time as the well driller’s report or reports are properly completed and on file in the office of the director. If it is found that a driller has intentionally submitted inaccurate or false information in the signed well driller’s report as provided in subsection (11) of this section, or has failed to file a report within the time frame required, the driller shall be liable for a civil penalty as provided in section 42-1701B, Idaho Code. In addition, this shall be cause for the director to suspend an active license for a period not in excess of one (1) year or to not renew a license.

(b) Failure of the driller to comply with the provisions of section 42-238(12), Idaho Code, will allow the director to proceed to repair, reconstruct or abandon a well so that it complies with the adopted minimum standards of well construction and abandonment, and the costs of this work may be charged against the driller’s bond in the amount of the expenses incurred up to the total amount of the bond.

(c) Failure of the driller to comply with the provisions of section 42-238(12), Idaho Code, is also cause for the director to revoke an active license or refuse to renew a license until such time as the well driller has repaired or reconstructed the well or wells so that they meet the adopted minimum standards. Any driller, well owner or well pump installer causing a well to be altered or modified so as to not meet the construction standards provided for under this section, shall be deemed to have violated the provisions of this section and shall be subject to the enforcement provisions of section 42-1701B, Idaho Code. The director may also require that the well driller present evidence to show that he and his equipment are now capable of constructing a well in a proper manner, before the license is renewed.

(14) Appeals. Refusal to issue, refusal to renew, or revocation of a well driller’s license or operator’s permit by the director shall be cause for the well driller to seek a public hearing before the water resource board. No formal petition shall be required from the affected driller or operator, but a simple statement, in writing, requesting a hearing shall be sufficient. The board shall notify the driller or operator, and the director, of the date set for the hearing, which shall be at least fifteen (15) days after the notice is sent by certified mail to the well driller or operator at his address of record with the department. A certified transcript of the proceedings and the evidence received at such hearing shall be maintained by the board. The board shall affirm, modify or reject the director’s decision, and make its decision in the form of an order to the director. The hearing shall be conducted in accordance with chapter 52, title 67, Idaho Code, and rules of practice and procedure adopted by the water resource board. Any party to the hearing may seek judicial review of any final order of the water resource board pursuant to chapter 52, title 67, Idaho Code.

(15) Drilling in a designated “area of drilling concern.” The director of the department of water resources may designate as he determines necessary, “areas of drilling concern” on an aquifer by aquifer basis within which drillers must comply with the additional requirements of this section. The director shall designate “areas of drilling concern” to protect public health and to prevent waste or contamination of ground or surface water because of factors such as aquifer pressure, vertical depth of the aquifer, warm or hot ground water, or contaminated ground or surface waters. It is unlawful for any person not meeting the requirements of this subsection to drill a well for any purpose in a designated “area of drilling concern.” Any person drilling a new well or deepening or modifying an existing well for any purpose in an “area of drilling concern” as designated by the director as herein provided shall comply with the following additional requirements: (a) Additional bonding requirements, as determined by the director, to insure that the well is constructed or abandoned in compliance with the adopted standards for well construction.

(b) Additional experience and knowledge in drilling wells encountering warm water or pressurized aquifers as required by rules adopted by the water resource board.

(c) Document that specialized equipment needed to drill wells in “areas of drilling concern,” as determined by the director, is or will be available to the driller.

(d) Provide a notice of intent to drill, deepen or modify a well, submit plans and specifications for the well and a description of the drilling methods that will be used, as required by the director, and receive the written approval of the director before commencing to drill, deepen, or modify any well in a designated “area of drilling concern.”

Prior to designating an “area of drilling concern,” the director shall conduct a public hearing in or near the area to determine the public interest concerning the designation. Notice of the hearing shall be published in two (2) consecutive weekly issues of a newspaper of general circulation in the area prior to the date set for hearing.

In the event an area has been designated as an “area of drilling concern” and the director of the department of water resources desires to remove such designation or modify the boundaries thereof, he shall likewise conduct a public hearing following similar publication of notice prior to taking such action.

History.

I.C.,§ 42-238, as reen. by 1967, ch. 339, § 1, p. 977; am. 1970, ch. 187, § 4, p. 541; am. 1971, ch. 149, § 2, p. 730; am. 1974, ch. 20, § 1, p. 533; am. 1980, ch. 238, § 9, p. 526; am. 1987, ch. 347, § 8, p. 741; am. 1990, ch. 366, § 1, p. 999; am. 1993, ch. 216, § 33, p. 587; am. 1997, ch. 361, § 1, p. 1062; am. 1998, ch. 173, § 2, p. 595.

STATUTORY NOTES

Compiler’s Notes.

Penalties for misdemeanor when not otherwise provided,§ 18-113.

Cross References.

State treasurer,§ 67-1201 et seq.

Water resource board,§ 42-238.

Compiler’s Notes.

Former§ 42-238, which comprised S.L. 1951, ch. 200, § 13(22), p. 423; 1953, ch. 182, § 9, p. 277, was repealed and reenacted by S.L. 1967, ch. 339.

The term “this act” throughout this section refers to S.L. 1967, chapter 339, which is codified as this section. The reference probably should read “this section.” The bracketed insertion near the end of subsection (9) was added by the compiler to correct the name of the referenced account. See§ 42-238a.

Effective Dates.

Section 3 of S.L. 1971, ch. 149 declared an emergency. Approved March 20, 1971.

CASE NOTES

Construction Standards.

Subsection (4) mandating the establishment of minimum well construction standards, when read in pari materia with such standards, manifests an intention to prevent contamination of ground water from an unsealed well and thereby creates a mandatory duty upon a driller to cap and seal a finished well. Craig H. Hisaw, Inc. v. Bishop, 95 Idaho 145, 504 P.2d 818 (1972).

Cited

Jones v. State Bd. of Medicine, 97 Idaho 859, 555 P.2d 399 (1976); Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982).

§ 42-238a. Water administration account.

There is hereby created in the state treasury a special account known as the water administration account. All fees and other moneys collected by the director of the department of water resources pursuant to sections 42-221, 42-237g, 42-238, 42-1713, 42-3905, 42-4003, and 42-4011, Idaho Code, shall be deposited in the water administration account. All moneys deposited in the water administration account are hereby appropriated to the director for the purpose of the administration of the provisions of title 42, Idaho Code, and no moneys received in the account shall be disbursed by the state treasurer unless the voucher for such disbursement contains the certificate of the director that such voucher is for an expense incurred in the administration of the provisions of title 42, Idaho Code.

History.

1951, ch. 200, § 23, as added by 1953, ch. 182, § 10, p. 277; am. 1968 (2nd E. S.), ch. 25, § 2, p. 47; am. 1974, ch. 20, § 2, p. 533; am. 1987, ch. 158, § 3, p. 308.

STATUTORY NOTES

Cross References.

State treasurer,§ 67-1201 et seq.

Compiler’s Notes.

Section 3 of S.L. 1968 (2nd E.S.), ch. 25 provided for the transfer of remaining moneys to the water administration fund.

Section 4 of S.L. 1968 (2nd E.S.), ch. 25 provided for the transfer of the appropriation to the state reclamation engineer (director of the department of water resources).

Effective Dates.

Section 5 of S.L. 1968 (2nd E.S.), ch. 25 declared an emergency and provided that this act shall be in effect upon its passage retroactively to July 1, 1967.

§ 42-238b. Certain proceedings regarding the rights to the use of ground water.

All proceedings commenced prior to July 1, 1951, for the acquisition of the rights to the use of ground water may be so commenced and such rights may be acquired and perfected under chapter 2 of title 42, Idaho Code, unaffected by this chapter or by chapter 200, laws of 1951.

History.

1951, ch. 200, § 27, as added by 1953, ch. 182, § 12, p. 277.

STATUTORY NOTES

Prior Laws.

Former§ 42-238b, which comprised I.C.,§ 42-238b, as added by 1987, ch. 347, § 9, p. 741; am. 1996, ch. 267, § 2, p. 868; am. 1997, ch. 361, § 2, p. 1062, was repealed by S.L. 1998, ch. 173, § 3, effective July 1, 1998.

§ 42-239. Interpretation.

The executive and judicial departments of the state shall construe the provisions of this act, wherever possible in harmony with the provisions of title 42, Idaho Code, as amended; and nothing herein shall be construed contrary to or in conflict with the provisions of article XV of the Constitution; and except where otherwise provided in this act, the provisions of said title 42, Idaho Code, as amended, shall continue to govern ground water rights in this state.

History.

1951, ch. 200, § 15(25), p. 423; am. 1953, ch. 182, § 11, p. 277.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” in two places in this section refers to S.L. 1951, chapter 200, which is codified as§§ 42-226 to 42-231, 42-233a, 42-237, 42-237a to 42-237g, 42-238a, 42-238b, and 42-239.

As amended by S.L. 1953, ch. 182, § 11, this section, originally numbered 15, was amended to become § 25 of S.L. 1951, ch. 200.

Section 16 (amended by S.L. 1953, ch. 182 to become § 26) of S.L. 1951, ch. 200, read: “If any part or parts of this act shall be adjudged by the courts to be unconstitutional or invalid, the same shall not affect the validity of any part or parts thereof which can be given effect without the part or parts adjudged to be unconstitutional or invalid. The legislature hereby declares that it would have passed the remaining parts of this act if it had been known that such other part or parts thereof would be declared unconstitutional or invalid.”

§ 42-240. Application for right to exchange water — Filing fee — Notice — Protest — Hearing — Approval or denial — Appeal.

Any person holding a right for the use of surface water may make application to the director of the department of water resources to exchange water authorized to be diverted under the right with the same or a different source, or with water authorized to be diverted under one (1) or more other rights from the same source or another surface water source. If the application proposes an exchange with water under another water right, the application shall be accompanied by an agreement in writing subscribed by the person proposing the exchange and each person or organization owning rights to water with whom the exchange is proposed to be made.
The application shall be upon forms furnished by the department and shall contain such information as shall enable the director to determine the nature of the proposed exchange, and shall be accompanied by the statutory filing fee provided under section 42-221, Idaho Code, for an application to change a vested water right.
Upon receipt of the application, it shall be the duty of the director to examine the same and, if otherwise proper, to cause notice of the proposed exchange to be published in the same manner as applications under section 42-203A, Idaho Code. The notice shall fully describe the nature of the proposed exchange of water and shall advise that anyone who wishes to protest shall file notice of protest in accordance with the provisions of section 42-203A, Idaho Code.
Upon the receipt of any protest it shall be the duty of the director to investigate the same and to conduct a hearing thereon. The director shall also advise the watermaster of the district in which the exchange is proposed, if a district exists, and the watermaster shall notify the director of the watermaster’s recommendations on the application. The director shall not take final action on the application or exchange until the director has received the recommendations of the watermaster, including recommended conditions necessary for the exchange of water to be properly administered and regulated.
The director shall examine all the evidence and available information and shall approve the exchange in whole, or in part, or upon conditions, provided no other water rights are injured thereby, the exchange does not constitute an enlargement in use of the original right or rights, the exchange is consistent with the conservation of water resources within the state of Idaho, the exchange is in the local public interest as defined in section 42-202B, Idaho Code, and the exchange will not adversely affect the local economy of the watershed or local area within which the source of water for the proposed use originates, in the case where the place of use is outside of the watershed or local area where the source of water originates. Unless otherwise provided in a written agreement between the applicant and other right holders, the director shall condition approval of an exchange so that the exchange will not be operative during times when water is not available to satisfy the exchange, and that during these times the right to use water automatically reverts to the place of use authorized under the water rights. A copy of the approved application for exchange shall be provided to the applicant and the watermaster, and the applicant shall be authorized upon receipt thereof to make the exchange in accordance with the conditions set forth by the director. Should an approved exchange thereafter be discontinued, the applicant or the applicant’s successor in interest must so notify the director and the district watermaster. (6) In the absence of a contrary agreement by the parties to an exchange, when the director has approved a right to exchange storage water for the natural flow of a stream or other water supply, the storage water shall be delivered in preference to any exchange rights subsequently approved using the same storage water right.

(7) Any person or persons feeling themselves aggrieved by a final order or final action of the director under this section may, if a protest was filed and hearing held thereon, seek judicial review pursuant to section 42-1701A(4), Idaho Code. If no protest was filed and no hearing held, the applicant may request a hearing pursuant to section 42-1701A(3), Idaho Code, for the purpose of contesting the action of the director and may seek judicial review of the final order of the director following the hearing pursuant to section 42-1701A(4), Idaho Code.

History.

I.C.,§ 42-240, as added by 1998, ch. 424, § 2, p. 1339; am. 2003, ch. 298, § 4, p. 806.

STATUTORY NOTES

Prior Laws.

Former section 42-240, which comprised I.C.,§ 42-240, as added by 1969, ch. 300, § 2, p. 900; am. 1974, ch. 20, § 3, p. 533; am. 1980, ch. 238, § 10, p. 526, was repealed by S.L. 1986, ch. 313, § 6.

§ 42-241. Purpose.

The future growth and development of the state is dependent upon effective management and efficient use of the state’s water resources. The purpose of this act is to provide adequate records of water right claims for efficient administration and to aid in the proper planning for the future use of the state’s water resources.

History.

I.C.,§ 42-241, as added by 1978, ch. 345, § 4, p. 884.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” refer to S.L. 1978, chapter 345, which is compiled as§§ 42-241 to 42-247, 42-1501 to 42-1505, 42-1736B, and 42-1756.

CASE NOTES

Cited

McInturff v. Shippy (In re CSRBA Case No. 49576), 165 Idaho 489, 447 P.3d 937 (2019).

§ 42-242. Definitions.

Whenever used in this act, the terms:

“Person” shall mean an individual, partnership, association, public or private corporation, city or other municipality, county, state agency, or the state of Idaho, and the United States of America when claiming water rights established under the laws of the state of Idaho.
“Notice in writing” means a notice substantially in the following form:

WATER RIGHTS NOTICE

Every person, including but not limited to an individual, partnership, association, public or private corporation, city or other municipality, county, state agency or the state of Idaho, and the United States of America, when claiming water rights established under the laws of the state of Idaho, is hereby notified that all water rights or claimed water rights relating to the withdrawal or diversion of public surface or ground waters of the state for uses other than domestic purposes, except those water rights based upon authority of permit or license issued by the department of water resources or one of its predecessors or water rights which have previously been adjudicated by a court having jurisdiction of such matters, must be registered with the department of water resources, Boise, Idaho, not later than June 30, 1983. FAILURE TO REGISTER AS REQUIRED BY LAW WILL BE GROUNDS FOR INSTITUTING AN ACTION FOR FORFEITURE OF THE CLAIMED WATER RIGHT. For further information contact the Department of Water Resources, Boise, Idaho, for a copy of the act and an explanation thereof.

History.

I.C.,§ 42-242, as added by 1978, ch. 345, § 5, p. 884; am. 1990, ch. 319, § 4, p. 870.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” in the introductory paragraph refer to S.L. 1978, chapter 345, which is compiled as§§ 42-241 to 42-247, 42-1501 to 42-1505, 42-1736B, and 42-1756.

§ 42-243. Filing of claims of rights established by diversion and use — Form and content of claim.

In order to allow for the recording of historic uses of the waters of this state, any person using or claiming rights to the use of water for uses other than domestic purposes, which have heretofore been established by diversion and application to a beneficial use shall file a claim of such right with the department of water resources not later than June 30, 1983, or if mailed, shall be postmarked not later than June 30, 1983. Such claim shall be in affidavit form on forms furnished by the department of water resources and shall set forth:

a. The name and post-office address of the claimant.
b. The quantity of water claimed to have been used.
c. The source of the water supply.
d. The location of the point or points of diversion.
e. The nature of the use and the period during each year when the water is used for such purposes.
f. The priority of the right claimed which shall be determined by the date when the water was first applied to a beneficial use provided there has been no period of abandonment or nonuse or forfeiture of the water right since that date.
g. If water is claimed for irrigation, the legal description of the lands irrigated.
h. Such other information as shall be required by the blank form furnished by the department.

Such claim may be accompanied by maps showing the place of use, affidavits of witnesses familiar with the uses claimed, measurements of the water diverted and used, and such other information as the claimant may wish to submit.

If the claim is filed with the department of water resources later than June 30, 1983, or if it is mailed to the department of water resources and the postmark is later than June 30, 1983, the claim shall be classified as follows:

a. If the only use identified on the claim is domestic purposes, then the claim will be considered to be filed in a timely manner.

b. If the use(s) identified on the claim includes other than domestic purposes, then the claim shall be considered to be a late claim, with a unique filing fee as set forth in section 42-221, Idaho Code.

This section shall not apply to any water rights which are based on the authority of a permit or license issued by the department of water resources or one of its predecessors or water rights which have previously been adjudicated by a court having jurisdiction of such matters.

History.

I.C.,§ 42-225a, as added by 1967, ch. 338, § 2, p. 974; I.C.,§ 42-243, as changed and amended by 1978, ch. 345, § 6, p. 884; am. 1983, ch. 61, § 1, p. 141; am. 1985, ch. 226, § 2, p. 540; am. 1990, ch. 319, § 5, p. 870; am. 1998, ch. 79, § 2, p. 282.

STATUTORY NOTES

Compiler’s Notes.

This section was formerly compiled as§ 42-225a and was redesignated as§ 42-243 by § 6 of S.L. 1978, ch. 345.

The “s” enclosed in parentheses so appeared in the law as enacted.

CASE NOTES

Cited

Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996); A & B Irrigation Dist. v. Aberdeen-American Falls Ground Water Dist. (In re SRBA Case No. 39576), 141 Idaho 746, 118 P.3d 78 (2005).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

§ 42-244. Recording of claims by department — Corrections.

Upon receipt of any claim submitted under this chapter, together with the statutory filing fee as set forth in section 42-221, Idaho Code, it shall be the duty of the department of water resources to file and to maintain a record of such claim, which shall be available for public inspection during all normal office hours. The department shall also cause a notice to be published once a week for two (2) consecutive weeks in a newspaper published and of general circulation in the county where the water is claimed to be diverted, if there is such a newspaper, otherwise in a newspaper of general circulation in the county, which said notice shall set forth such information as shall apprise the public of the nature of the claim which has been filed. At any time after the filing of a claim under the previous section, any person who disagrees that a right has been established as set forth in said claim may file an exception thereto in duplicate, in affidavit form, accompanied by such proof as said person deems appropriate. An exception filed shall be made a part of the file of the claim in the department of water resources and shall be considered the same as other evidence in said file. A copy of an exception filed shall be forwarded to the claimant by the department of water resources. Such claims may be corrected by the claimant only by filing of an amended claim in the same form as the original, which shall be recorded and numbered by the department the same as the original, and for which no additional filing fees shall be required.

History.

I.C.,§ 42-225b, as added by 1967, ch. 338, § 3, p. 974; I.C.,§ 42-244, as changed and amended by 1978, ch. 345, § 7, p. 884.

STATUTORY NOTES

Compiler’s Notes.

This section was formerly compiled as§ 42-225b and was redesignated as§ 42-244 by § 6 of S.L. 1978, ch. 345.

§ 42-245. Failure to file claim waives and relinquishes right.

Any person claiming the right to divert or withdraw and use waters of the state who fails to file a claim as provided in section 42-243, Idaho Code, shall be conclusively deemed to have waived and relinquished any right, title or interest in said right.

The provisions of this section shall not apply if a claim to the right is filed in a general water rights adjudication proceeding commenced under the provisions of chapter 14, title 42, Idaho Code.

History.

I.C.,§ 42-245, as added by 1978, ch. 345, § 8, p. 884; am. 1988, ch. 152, § 1, p. 272; am. 1994, ch. 63, § 1, p. 121; am. 2020, ch. 146, § 1, p. 447.

STATUTORY NOTES

Amendments.

The 2020 amendment, by ch. 146, deleted “prior to June 30, 1988” following “proceeding commenced” near the end of the second paragraph.

CASE NOTES

Cited

Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996).

§ 42-246. Filing of claim not deemed adjudication of right — Evidence.

The filing of a claim does not constitute an adjudication of any claim to the right to use of waters as between the water use claimant and the state, or as between one (1) or more water use claimants and another or others. A statement of claim filed pursuant to section 42-243, Idaho Code, shall be admissible in a general adjudication of water rights as evidence of the times of use and the quantity of water the claimant was withdrawing or diverting as of the year of the filing, if, but only if, the quantities of water in use and the time of use when a controversy is mooted are substantially in accord with the times of use and quantity of water claimed in the claim. A claim shall not otherwise be evidence of the priority of the claimed water right.

History.

I.C.,§ 42-246, as added by 1978, ch. 345, § 9, p. 884.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

§ 42-247. Notice of chapter provisions — How given — Requirements.

To ensure that all persons referred to in sections 42-242 and 42-243, Idaho Code, are notified of the provisions of this chapter, the department of water resources is directed to give notice of the provisions of this chapter as follows:

It shall cause a notice in writing to be placed in a prominent and conspicuous place in at least one (1) newspaper published and of general circulation in each county of the state, if there is such newspaper, otherwise in a newspaper of general circulation in the county, at least once each year for five (5) consecutive years.
It shall cause a notice substantially the same as a notice in writing to be broadcast by each commercial television station operating in the state, and by at least one (1) commercial radio station operating from each county of the state having such a station, regularly, at six (6) month intervals for five (5) consecutive years.
It shall cause a notice in writing to be placed in a prominent and conspicuous location in each county courthouse in the state.
The county treasurer of each county shall enclose with each mailing of one (1) or more statements of taxes due issued in 1981 a copy of a notice in writing and a declaration that it shall be the duty of the recipient of the statement of taxes due to forward the notice to the beneficial owner of the property. A sufficient number of copies of the notice and declaration shall be supplied to each county treasurer by the director of the department of water resources before the fifteenth day of January, 1981.

The director of the department may also in his discretion give notice in any other manner which will carry out the purposes of this section.

History.

I.C.,§ 42-247, as added by 1978, ch. 345, § 10, p. 884; am. 1980, ch. 276, § 1, p. 720.

STATUTORY NOTES

Compiler’s Notes.

Section 13 of S.L. 1978, ch. 345 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid or unconstitutional for any reason, such declaration shall not affect the validity of remaining portions of this act.”

§ 42-248. Notification of change in ownership of a water right or change of address of a water right owner — Notice of action affecting a water right.

All persons owning or claiming ownership of a right to use the water of this state, whether the right is represented by decree of the court, by claim to a water right filed with the department of water resources or by permit or license issued by the director of the department of water resources, shall provide notice to the department of water resources of any change in ownership of any part of the water right or of any change in the owner’s mailing address, either of which occurs after June 30, 2000. Notice shall be provided within one hundred twenty (120) days of any change using forms acceptable to the director. Any notice received by the department of water resources more than one hundred twenty (120) days after the change in ownership or mailing address has occurred shall be accompanied by a late filing fee. The late filing fee shall be one hundred dollars ($100). The director may waive the late filing fee or a portion thereof for good cause.
All persons owning or claiming ownership of a right to use the water of this state that is evidenced by a water right recorded with the department of water resources prior to June 30, 2000, and for which a claim to water right, with current ownership and mailing address, is not on file with the department of water resources in the Snake River Basin Adjudication, Twin Falls Civil Case No. 39576, shall verify with the department that the ownership and mailing address information in the department’s records is correct. Any incorrect ownership or mailing address shall be corrected by the owner or claimant of the water right by July 1, 2002, using forms acceptable to the director. Any mailing address or ownership corrections required by this subsection received by the department of water resources after July 1, 2002, shall be subject to the late filing fee described in subsection (1) of this section. The director may waive the late filing fee or a portion thereof for good cause.
The director of the department of water resources will be deemed to have provided notice concerning any action by the director affecting a water right or claim if a notice of the action is mailed to the address and owner of the water right shown in the records of the department of water resources at the time of mailing the notice.
Compliance with section 42-1409(6), Idaho Code, shall be deemed to be compliance with this section. The filing of an application to change a water right under the provisions of section 42-211 or section 42-222, Idaho Code, showing a change in address of the owner of the right or accompanied by evidence documenting any change in ownership of the water right, shall be deemed compliance with this section. The fee requirements of this section shall apply in addition to the filing fee that may be required in connection with an application to change a water right under the provisions of section 42-211 or 42-222, Idaho Code.
A filing fee of twenty-five dollars ($25.00) per right shall accompany a notice of change of ownership of a water right, provided that the fee shall be one hundred dollars ($100) per right if a request is made to change the department’s records to reflect a division in the ownership of the water right resulting from a division in the ownership of the place of use under the water right. A notice of change of ownership of all or part of a water right shall be accompanied by evidence showing the basis for the change in ownership, and how the right is divided if the change divides the right among multiple owners. (6) Any person having a security interest in a water right and desiring to be notified by the department regarding the filing of a change in ownership of that water right or of any proposed or final action to amend, transfer or otherwise modify that water right shall make the request upon a form provided by the department accompanied by a fee of twenty-five dollars ($25.00) per right. The request shall be accompanied by evidence of the security interest including the expiration date of the security interest or other date defining the end of the period for which notification is requested. The request for notification shall expire at the end of the requested notification period unless renewed on a form provided by the department and accompanied by a renewal fee of twenty-five dollars ($25.00) per right. The holder of a security interest requesting notification under this subsection shall provide notice to the department within sixty (60) days if the security interest is terminated prior to the end of the requested notification period.

History.

I.C.,§ 42-248, as added by 1996, ch. 149, § 1, p. 487; am. 2000, ch. 313, § 1, p. 1052; am. 2011, ch. 172, § 2, p. 491.

STATUTORY NOTES

Amendments.

The 2011 amendment, by ch. 172, in subsection (4), substituted “or accompanied by evidence” for “and accompanied by evidence” in the second sentence and added the last sentence.

CASE NOTES

Cited

McInturff v. Shippy (In re CSRBA Case No. 49576), 165 Idaho 489, 447 P.3d 937 (2019); First Sec. Corp. v. Belle Ranch, LLC, — Idaho —, 451 P.3d 446 (2019).

§ 42-249. [Reserved.]

The legislature finds that voluntary water conservation practices and projects can advance the policy of the state of Idaho to promote and encourage the conservation, development, augmentation and utilization of the water resources of this state. The legislature deems it appropriate, therefore, to encourage and support voluntary water conservation practices and projects.
For purposes of this section, “water conservation practice” means any practice, improvement, project or management program, that results in the diversion of less than the authorized quantity of water while maintaining the full beneficial use(s) authorized by the water right. Water conservation practices include, but are not limited to, practices that result in reductions in consumptive use as defined in section 42-202B, Idaho Code, reductions in conveyance losses, and reductions in surface and seepage losses occurring at the place of use.
For the purposes of this section, “conserved water” means the quantity of water that is no longer diverted as a result of a water conservation practice. Conserved water shall not include quantities of water not diverted due to decreases in beneficial use.

History.

I.C.,§ 42-250, as added by 2003, ch. 166, § 2, p. 470.

STATUTORY NOTES

Compiler’s Notes.

The “s” enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 3 of S.L. 2003, ch. 166 declared an emergency. Approved March 27, 2003.

§ 42-250. Water conservation.

Chapter 3 APPROPRIATION OF WATER — CANCELLATION OF PERMITS

Sec.

§ 42-301. Permits contestable — When and by whom.

If the holder of a permit to appropriate the public waters shall fail to comply with the requirements of his permit as to the commencing of work or the filing of bond thereunder, or the completion of one-fifth (1/5) of the construction work within one-half (½) the time allowed for the entire completion of such construction work, or shall fail to complete the entire construction work within the time specified in his permit, said permit may be cancelled and voided by the department of water resources as hereinafter provided at the instance of any person or persons holding any permit for the diversion of water from the same stream, such permit postdating the permit which is sought to be cancelled.

History.

1909, p. 299, § 1; reen. C.L., § 3265a; C.S., § 5584; I.C.A.,§ 41-301.

STATUTORY NOTES

Compiler’s Notes.

The act forming the basis of this chapter repealed a prior law, 1903, p. 223, § 3, am. 1907, p. 532, § 1, reen. R.C., § 3256; C.S., § 5584.

CASE NOTES

Constitutionality.

The act does not vest in state engineer (department of water resources) judicial power and is not in conflict with Idaho Const., Art. II, § 1 orIdaho Const., Art. V, § 2. Speer v. Stephenson, 16 Idaho 707, 102 P. 365 (1909).

Subsequent Permit Holders.

Time Limits.

Holders of subsequent permits, on a proper showing, were entitled to judgment in action at law canceling prior permits, when department of reclamation (department of water resources) refused to cancel such permits in a proceeding instituted before it. Clark v. Hansen, 35 Idaho 449, 206 P. 808 (1922). Time Limits.

If work was not commenced within time specified in permit issued by state engineer (department of water resources), or if one fifth of the work was not completed within time therein limited, failure could not be cured by extending time for making proof of the beneficial use of water attempted to be appropriated. Washington State Sugar Co. v. Goodrich, 27 Idaho 26, 147 P. 1073 (1915).

Cited

Shokal v. Dunn, 109 Idaho 330, 707 P.2d 441 (1985).

§ 42-302. Petition for cancellation.

Any person as above specified desiring the cancellation of a permit shall file with the department of water resources a petition clearly setting forth the facts upon which he bases his prayer for cancellation, plainly stating wherein the holder of the permit, which is sought to be cancelled, has failed to comply with the law and with the requirements of his permit.

History.

1909, p. 299, part of § 2; reen. C.L., § 3265b; C.S., § 5585; I.C.A.,§ 41-302.

STATUTORY NOTES

Compiler’s Notes.

§ 42-303. Notice of contest.

Upon receipt of such petition, the department of water resources shall issue a notice, naming the petitioner as contestant and all persons, shown by the records of the department of water resources to have any claim of title or interest in the permit sought to be cancelled as contestees, and requiring all contestees to appear at the office of the department on a day to be specified therein, which day shall be not less than sixty (60) nor more than ninety (90) days from the date of the notice, and show cause, by affidavit, if any there be, why said permit should not be cancelled. Such notice shall be sent by registered mail, addressed to every person named therein at his last known post-office address.

History.

1909, p. 299, part of § 2; reen. C.L., § 3265c; C.S., § 5586; I.C.A.,§ 41-303.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Due Process.

This provision, that permits shall be recorded in the office of the state engineer (department of water resources) and requiring notice of contest must be sent by registered mail to last known post-office address of all persons shown by the records to have an interest, is sufficient notice and due process. Speer v. Stephenson, 16 Idaho 707, 102 P. 365 (1909).

§ 42-304. Hearing.

On the day set for the hearing the contestant and such contestees as have filed the affidavit hereinbefore required of them, shall file such affidavits in support of their respective allegations as they may desire, and the department of water resources may require such additional evidence and may make or cause to be made by an engineer whom the department may designate, such personal examination of the work done under the permit in question, as the department may deem necessary to enable it to render a fair decision: provided, that before making or causing such examination to be made the department shall estimate the cost of such examination and shall require the contestant to deposit a sum equal to such estimate and if after the making of such examination it is found that the amount so deposited is in excess of the cost of such examination the department shall return such excess to the contestant. For the purpose of producing additional testimony in making investigations, the department may continue the hearing to such time, not exceeding thirty (30) days, as would seem to it advisable. The hearing shall be conducted in accordance with section 42-1701A(1) and (2), Idaho Code, and the contestant or contestee may seek judicial review pursuant to section 42-1701A(4), Idaho Code, of the final order of the director.

History.

1909, p. 299, part of § 2; reen. C. L., § 3265d; C. S., § 5587; I. C. A.,§ 41-304; am. 1980, ch. 238, § 11, p. 526.

§ 42-305 — 42-309. Notice, appeal of decision on permit — Suit to quiet title. [Repealed.]

§ 42-351. Illegal diversion or use of water — Enforcement procedure — Injunctive relief.

It is unlawful for any person to divert or use water from a natural watercourse or from a ground water source without having obtained a valid water right to do so, or to divert or use water not in conformance with a valid water right.
It is unlawful for any person to divert or use water in substantial violation of any provision of this title, or any rule, permit, condition of approval or order issued or promulgated pursuant to this title that is related to the diversion or use of water.
Upon investigation of available information, the director of the department of water resources shall have the discretion to issue a written notice of violation to the person in accordance with the provisions of section 42-1701B, Idaho Code, for the illegal diversion or use of water.
Notwithstanding the issuance of a notice of violation, the director may also file an action seeking injunctive relief directing the person to cease and desist the activity or activities alleged to be in violation of applicable law or any existing water right.

History.

I.C.,§ 42-351, as added by 1986, ch. 313, § 8, p. 763; am. 1988, ch. 83, § 3, p. 143; am. 1994, ch. 450, § 5, p. 1434; am. 1998, ch. 173, § 4, p. 595; am. 2003, ch. 165, § 1, p. 467.

STATUTORY NOTES

Effective Dates.

§ 42-352. Civil penalties. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised I.C.,§ 42-352, as added by 1986, ch. 313, § 8, p. 763; am. 1988, ch. 83, § 4, p. 143, was repealed by S.L. 1998, ch. 173, § 5, effective July 1. 1998.

§ 42-350. Revocation of license — Grounds — Hearing — Licensee defined.

Chapter 4 APPROPRIATIONS FOR USE OUTSIDE STATE

Sec.

§ 42-401. Applications for use of public waters outside the state.

The state of Idaho is dedicated to the conservation of its public waters and the necessity to maintain adequate water supplies for the state’s water requirements. The state of Idaho also recognizes that under appropriate conditions the out-of-state use of its public waters is not in conflict with the public welfare of its citizens or the conservation of its waters.
Any person, firm or corporation or any other entity intending to withdraw water from any surface or underground water source in the state of Idaho for use outside the state or to change the place or purpose of use of a water right from a place in Idaho to a place outside the state shall file with the department of water resources an application for a permit to do so, subject to the requirements of chapter 2, title 42, Idaho Code.
In order to approve an application under this chapter, the director must find that the applicant’s use of water outside the state is consistent with the provisions of section 42-203A(5), Idaho Code. In addition, the director shall consider the following factors:
1. The supply of water available to the state of Idaho;
2. The current and reasonably anticipated water demands of the state of Idaho;
3. Whether there are current or reasonably anticipated water shortages within the state of Idaho;
4. Whether the water that is the subject of the application could feasibly be used to alleviate current or reasonably anticipated water shortages within the state of Idaho;
5. The supply and sources of water available to the applicant in the state where the applicant intends to use the water; and
6. The demands placed on the applicant’s supply in the state where the applicant intends to use the water.

(5) By filing an application to use waters outside the state, the applicant shall submit to and comply with the laws of the state of Idaho governing the appropriation and use of water and any future changes to the water right.

(6) The director is empowered to condition the permit to insure that the use of water in another state is subject to the same regulations and restrictions that may be imposed upon water use in the state of Idaho.

(7) Upon submittal of the application, the applicant shall designate an agent in the state of Idaho for reception of service of process and other legal notices.

(8) The director may, as a condition to the approval of an application under this chapter, require that the applicant shall file a certificate from the proper officer or official of the state where the water shall be used, showing to the satisfaction of the director that the intended use would be beneficial, and that the intended appropriation is feasible.

History.

I.C.,§ 42-401, as added by 1990, ch. 141, § 3, p. 316; am. 2014, ch. 245, § 1, p. 614.

STATUTORY NOTES

Prior Laws.

Former§ 42-401, which comprised 1915, ch. 111, § 1, p. 254; reen. C.L., § 3265n; C.S., § 5595; I.C.A.,§ 41-401; am. 1951, ch. 80, § 1, p. 149, was repealed by S.L. 1990, ch. 141, § 2.

Amendments.

The 2014 amendment, by ch. 245, deleted “transportation and” following “out-of-state” in the second sentence in subsection (1) and deleted “and transport it” following “state of Idaho” near the beginning of subsection (2).

Legislative Intent.

Compiler’s Notes.

Section 6 of S.L. 1990, ch. 141 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

CASE NOTES

Decisions Under Prior Law

Interstate Adjudication.

Rights, as between states, to share in the waters of interstate stream, were a matter for adjustment between states, and individual users could not raise question about the use of such water in another state out of the territorial jurisdiction of court. Vineyard Land & Stock Co. v. Twin Falls Salmon River Land & Water Co., 245 F. 9 (9th Cir. 1917).

Priority.

Right obtained by appropriation of water from stream in one state for use on lands in another state was superior to later appropriation in former state for use in former state. Weiland v. Pioneer Irrigation Co., 259 U.S. 498, 42 S. Ct. 568, 66 L. Ed. 1027 (1922).

1915, ch. 111, § 5, p. 254; reen. C.L., § 3265r; C.S., § 5599; I.C.A.,§ 41-405.

RESEARCH REFERENCES

C.J.S.

§ 42-406. Rules and regulations.

The department of water resources is empowered to make such rules and regulations as may be necessary to the proper administration of the provisions of this chapter.

History.

1915, ch. 111, § 6, p. 254; compiled and reen. C.L., § 3265s; C.S., § 5600; I.C.A.,§ 41-406.

CASE NOTES

Cited

Hart v. Stewart, 95 Idaho 781, 519 P.2d 1171 (1974).

§ 42-407. Appeal from department’s decision.

Whenever any person or persons feel themselves aggrieved by the determination or decision of the department of water resources relative to the granting of permit, the issuance of certification of proof of completion or the issuance of license, as hereinbefore provided for, such person or persons may request a hearing pursuant to section 42-1701A(3), Idaho Code, if a hearing on the matter has not been held, or, if a hearing has been held, may seek judicial review pursuant to section 42-1701A(4), Idaho Code.

History.

1915, ch. 111, § 7, p. 254; reen. C.L., § 3265t; C.S., § 5601; I.C.A.,§ 41-407; am. 1980, ch. 238, § 13, p. 526.

STATUTORY NOTES

Compiler’s Notes.

Section 25 of S.L. 1980, ch. 238 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

§ 42-408 — 42-411. Appropriation subject to reciprocal legislation — Certain waters excluded — Appropriation of water for use in other states. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

These sections, which comprised 1915, ch. 111, § 8, p. 254; reen. C.L., § 3265u; 1919, ch. 118, § 1, p. 404; C.S., §§ 5602, 5603; am. 1925, ch. 3, § 1, p. 7; I.C.A.,§§ 41-408, 41-409; 1949, ch. 24, § 1, p. 41; I.C.,§ 42-411, as added by 1970, ch. 89, § 1, p. 217, were repealed by S.L. 1990, ch. 141, § 2.

Chapter 5 STOCKWATER RIGHTS

Sec.

§ 42-501. Legislative intent.

In the landmark case of Joyce Livestock Company v. United States of America, 144 Idaho 1, 156 P.3d 502 (2007), the Idaho Supreme Court held that an agency of the federal government cannot obtain a stockwater right under Idaho law unless it actually owns livestock and puts the water to beneficial use.

In Joyce , the court held that the United States:

“bases its claim upon the constitutional method of appropriation. That method requires that the appropriator actually apply the water to a beneficial use. Since the United States has not done so, the district court did not err in denying its claimed water rights.”

The court also held that federal ownership or management of the land alone does not qualify it for stockwater rights. It opined:

“The United States claimed instream water rights for stock watering based upon its ownership and control of the public lands coupled with the Bureau of Land Management’s comprehensive management of public lands under the Taylor Grazing Act . . . The argument of the United States reflects a misunderstanding of water law . . . As the United States has held, Congress has severed the ownership of federal lands from the ownership of water rights in nonnavigable waters located on such lands.”

The court went on to state:

“Under Idaho Law, a landowner does not own a water right obtained by an appropriator using the land with the landowner’s permission unless the appropriator was acting as agent of the owner in obtaining that water right . . . If the water right was initiated by the lessee, the right is the lessee’s property, unless the lessee was acting as the agent of the owner . . . The Taylor Grazing Act expressly recognizes that ranchers could obtain their own water rights on federal land.”

A rancher is not unwittingly acting as an agent of a federal agency simply by grazing livestock on federally managed lands when he files for and receives a stockwater right.

It is the intent of the Legislature to codify and enhance these important points of law from the Joyce case to protect Idaho stockwater right holders from encroachment by the federal government in navigable and nonnavigable waters.

Further, in order to comply with the Joyce decision, it is the intent of the Legislature that stockwater rights acquired in a manner contrary to the Joyce decision are subject to forfeiture pursuant to sections 42-222(2) and 42-224, Idaho Code.

History.

I.C.,§ 42-501, as added by 2017, ch. 178, § 2, p. 408; am. 2018, ch. 320, § 1, p. 747; am. 2020, ch. 253, § 2, p. 738.

STATUTORY NOTES

Prior Laws.

Amendments.

The 2018 amendment, by ch. 320, added the last paragraph in the section.

The 2020 amendment, by ch. 253, added “pursuant to sections 42-222(2) and 42-224, Idaho Code” at the end of the last paragraph.

Effective Dates.

Section 3 of S.L. 2017, ch. 178 declared an emergency. Approved March 27, 2017.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Freedom Versus Forage: Balancing Wild Horses and Livestock Grazing on the Public Lands, Mara Hurwitt. 53 Idaho L. Rev. 425 (2017).

§ 42-502. Federal agencies — Stockwater rights.

No agency of the federal government shall acquire a stockwater right unless the agency owns livestock and puts the water to beneficial use. For purposes of this chapter, “stockwater rights” means water rights for the beneficial use for livestock.

History.

I.C.,§ 42-502, as added by 2017, ch. 178, § 2, p. 408; am. 2020, ch. 253, § 3, p. 738.

STATUTORY NOTES

Prior Laws.

Former§ 42-502, Revocation of permit, which comprised 1939, ch. 205, § 2, p. 412, was repealed by S.L. 2017, ch. 178, § 1, effective March 27, 2017.

Amendments.

The 2020 amendment, by ch. 253, rewrote the text of the section, which formerly read: “(1) No agency of the federal government, nor any agent acting on its behalf, shall acquire a stockwater right unless the agency owns livestock and puts the water to beneficial use. For purposes of this chapter, ‘stockwater rights’ means water rights for the beneficial use for livestock. (2) For the purposes of this chapter, a permittee on a federally administered grazing allotment shall not be considered an agent of the federal government.”

Effective Dates.

Section 3 of S.L. 2017, ch. 178 declared an emergency. Approved March 27, 2017.

§ 42-503. Forfeiture of certain stockwater rights. [Repealed.]

Repealed by S.L. 2020, ch. 253, § 4, effective July 1, 2020.

History.

I.C.,§ 42-503, as added by 2018, ch. 320, § 2, p. 747.

STATUTORY NOTES

Prior Laws.

Former§ 42-503, Right to file application under general laws, which comprised 1939, ch. 205, § 3, p. 412, was repealed by S.L. 2017, ch. 178, § 1, effective March 27, 2017.

Compiler’s Notes.

Former§ 42-503 was amended and redesignated as§ 42-504 by S.L. 2018, ch. 320, § 3, effective July 1, 2018.

§ 42-504. Limits of use.

If an agency of the federal government, or the holder or holders of any livestock grazing permit or lease on a federal grazing allotment, acquires a stockwater right, that stockwater right shall never be utilized for any purpose other than the watering of livestock on the federal grazing allotment that is the place of use for that stockwater right.

History.

I.C.,§ 42-503, as added by 2017, ch. 178, § 2, p. 408; am. and redesig. 2018, ch. 320, § 3, p. 747; am. 2020, ch. 253, § 5, p. 738.

STATUTORY NOTES

Prior Laws.

Former§ 42-504, Separability, which comprised 1939, ch. 205, § 4, p. 412, was repealed by S.L. 2017, ch. 178, § 1, effective March 27, 2017.

Amendments.

The 2018 amendment, by ch. 320, redesignated the section from§ 42-503 and added “unless otherwise approved by the state of Idaho pursuant to section 42-222, Idaho Code” at the end of the section.

The 2020 amendment, by ch. 253, rewrote the text of the section, which formerly read: “If an agency of the federal government acquires a stockwater right, that stockwater right shall never be utilized for any purpose other than the watering of livestock unless otherwise approved by the state of Idaho pursuant to section 42-222, Idaho Code.”

Compiler’s Notes.

This section was formerly compiled as§ 42-503.

Former§ 42-504 was redesignated as§ 42-505 by S.L. 2018, ch. 320, § 4, effective July 1, 2018.

Effective Dates.

Section 3 of S.L. 2017, ch. 178 declared an emergency. Approved March 27, 2017.

§ 42-505. Effect of illegal change of ownership or transfer.

Any application for a change in ownership or any application proposing to change the nature of use of a stockwater right that is in violation of the provisions of this chapter shall be denied.

History.

I.C.,§ 42-504, as added by 2017, ch. 178, § 2, p. 408; am. and redesig. 2018, ch. 320, § 4, p. 747.

STATUTORY NOTES

Prior Laws.

Former§ 42-505, Provisions controlling over other acts, which comprised 1939, ch. 205, § 5, p. 412, was repealed by S.L. 2017, ch. 178, § 1, effective March 27, 2017.

Amendments.

The 2018 amendment, by ch. 320, redesignated the section from§ 42-504.

Compiler’s Notes.

This section was formerly compiled as§ 42-504.

Former§ 42-505 was redesignated as§ 42-506 by S.L. 2018, ch. 320, § 5, effective July 1, 2018.

Effective Dates.

Section 3 of S.L. 2017, ch. 178 declared an emergency. Approved March 27, 2017.

§ 42-506. Severability.

The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.

History.

I.C.,§ 42-505, as added by 2017, ch. 178, § 2, p. 408; am. and redesig. 2018, ch. 320, § 5, p. 747.

STATUTORY NOTES

Amendments.

The 2018 amendment, by ch. 320, redesignated the section from§ 42-505.

Compiler’s Notes.

This section was formerly compiled as§ 42-505.

Former§ 42-506 was redesignated as§ 42-507 by S.L. 2018, ch. 320, § 6, effective July 1, 2018.

The term “this act” in this section refers to S.L. 2017, Chapter 178, which is codified as§§ 42-501, 42-502, and 42-504 through 42-506.

Effective Dates.

Section 3 of S.L. 2017, ch. 178 declared an emergency. Approved March 27, 2017.

§ 42-507. Provisions controlling over other acts.

Insofar as the provisions of this act are inconsistent with the provisions of any other law, the provisions of this act shall be controlling.

History.

I.C.,§ 42-506, as added by 2017, ch. 178, § 2, p. 408; am. and redesig. 2018, ch. 320, § 6, p. 747.

STATUTORY NOTES

Amendments.

The 2018 amendment, by ch. 320, redesignated the section from§ 42-506.

Compiler’s Notes.

This section was formerly compiled as§ 42-506.

The term “this act” in this section refers to S.L. 2017, Chapter 178, which is codified as§§ 42-501, 42-502, and 42-504 through 42-506.

Effective Dates.

Section 3 of S.L. 2017, ch. 178 declared an emergency. Approved March 27, 2017.

Chapter 6 DISTRIBUTION OF WATER AMONG APPROPRIATORS

Sec.

§ 42-601. Water divisions

Establishment and boundaries. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised 1903, p. 223, §§ 13, 16; reen. R.C. & C.L., § 3268; C.S., § 5605; I.C.A.,§ 41-501, was repealed by S.L. 1992, ch. 339, § 1.

§ 42-602. Director of the department of water resources to supervise water distribution within water districts.

The director of the department of water resources shall have direction and control of the distribution of water from all natural water sources within a water district to the canals, ditches, pumps and other facilities diverting therefrom. Distribution of water within water districts created pursuant to section 42-604, Idaho Code, shall be accomplished by watermasters as provided in this chapter and supervised by the director.

The director of the department of water resources shall distribute water in water districts in accordance with the prior appropriation doctrine. The provisions of chapter 6, title 42, Idaho Code, shall apply only to distribution of water within a water district.

History.

First paragraph: 1915, ch. 34, § 4, p. 103; second paragraph: 1903, p. 223, § 32; reen. R.C., § 3283; am. 1915, ch. 34, § 17, p. 112; reen. C.L., § 3270; C.S., § 5606; I.C.A.,§ 41-502; am. 1992, ch. 339, § 2, p. 1014; am. 1994, ch. 450, § 1, p. 1434.

STATUTORY NOTES

Compiler’s Notes.

Effective Dates.

CASE NOTES

Determination of Time for Use.

Doctrine of Prior Appropriation.

Decree making water user judge of time when water could be used was too broad, as this matter should be determined by department of reclamation (department of water resources) which has immediate direction and control of water distribution. Arkoosh v. Big Wood Canal Co., 48 Idaho 383, 283 P. 522 (1929). Doctrine of Prior Appropriation.

The trial court properly issued a writ of mandate ordering the director of the Idaho department of water resources immediately to comply with this section and distribute water in accordance with the doctrine of prior appropriation. Musser v. Higginson, 125 Idaho 392, 871 P.2d 809 (1994).

Immunity.

In a suit brought by owners of flooded farmland, the state was immune from liability for any decision of the director of the department of water resources in taking measures to protect against failure of a dike; this immunity extended to the flood control district and the chairman, and also to the water district and its watermaster and chairman, since there was no evidence they owned, controlled, operated or maintained or managed the dike. Marty v. State, 117 Idaho 133, 786 P.2d 524 (1989).

Interpreting Decrees.

The doctrine of quasi-estoppel does not preclude the director of the Idaho department of water resources from interpreting partial decrees of the SBRA. Rangen, Inc. v. Idaho Dep’t of Water Res. (In re Distrib. of Water to Water Right Nos. 36-02551 & 36-07694 (Rangen, Inc.) IDWR Docket CM-DC-2011-004), 159 Idaho 798, 367 P.3d 193 (2016).

Priority of Diversion.

Under conjunctive management rule 40.01, when it is found that junior-priority ground water pumping is causing a senior right holder material injury, the director must either: (1) curtail junior-priority ground water pumping to satisfy the senior’s right, or (2) allow out-of-priority diversion of water by junior-priority ground water users, pursuant to a mitigation plan that has been approved by the director. The director must consider whether the mitigation plan provides replacement water supplies or other appropriate compensation to the senior-priority water right, when needed during a time of shortage. Rangen, Inc. v. Idaho Dep’t of Waters Res. (In re Fourth Mitigation Plan), 160 Idaho 251, 371 P.3d 305 (2016).

Review.

Action of commissioner in determining when water may be first beneficially used and in delivering or refusing to deliver water may be reviewed and controlled in such manner, as facts may require, by appropriate action on part of any person deeming himself aggrieved. Arkoosh v. Big Wood Canal Co., 48 Idaho 383, 283 P. 522 (1929).

Subterranean Waters.

Court may retain jurisdiction of cause involving rights to subterranean waters for two years and decree administrative provisions concerning such rights, although this section does not expressly relate to subterranean waters not in a defined stream. Silkey v. Tiegs, 51 Idaho 344, 5 P.2d 1049 (1931).

Cited Public Utils. Comm’n v. Natatorium Co., 36 Idaho 287, 211 P. 533 (1922); Almo Water Co. v. Darrington, 95 Idaho 16, 501 P.2d 700 (1972). RESEARCH REFERENCES

C.J.S.

§ 42-602A. Emergency provision. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised I.C.,§ 42-602A, as added by 1977, ch. 246, § 1, p. 723, was repealed by S.L. 1992, ch. 339, § 3.

§ 42-603. Supervision of water distribution — Rules and regulations.

The director of the department of water resources is authorized to adopt rules and regulations for the distribution of water from the streams, rivers, lakes, ground water and other natural water sources as shall be necessary to carry out the laws in accordance with the priorities of the rights of the users thereof. Promulgation of rules and regulations shall be in accordance with the procedures of chapter 52, title 67, Idaho Code.

History.

1915, ch. 34, § 8, p. 103; reen. C.L., § 3273; C.S., § 5607; I.C.A.,§ 41-503; am. 1992, ch. 339, § 4, p. 1014.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Administrative Rules.

To the extent that the district court engaged in an “as applied” analysis of the Rules for Conjunctive Management of Surface and Ground Water Resources (CM Rules), it was in error, as administrative remedies had not been exhausted. Am. Falls Reservoir Dist. No. 2 v. Idaho Dep’t of Water Res., 143 Idaho 862, 154 P.3d 433 (2007).

As the Rules for Conjunctive Management of Surface and Ground Water Resources (CM Rules) specifically incorporated Idaho law, the failure to recite certain burdens and evidentiary standards, set specific timelines and set objective standards did not make them facially unconstitutional. The CM Rules also survive a facial challenge in the recognition given to partial decrees and in the treatment of carryover water. Am. Falls Reservoir Dist. No. 2 v. Idaho Dep’t of Water Res., 143 Idaho 862, 154 P.3d 433 (2007).

Management Plan.

Priority of Diversion.

The director of the Idaho department of water resources may develop and implement a pre-season management plan for allocation of water resources that employs a baseline methodology, which methodology must comport in all respects with the requirements of Idaho’s prior appropriation doctrine, be made available in advance of the applicable irrigation season, and be promptly updated to take into account changing conditions. A senior right holder may initiate a delivery call based on allegations that specified provisions of the management plan will cause it material injury. The party making the call shall specify the respects in which the management plan results in injury to the party. While factual evidence supporting the plan may be considered, along with other evidence in making a determination with regard to the call, the plan by itself shall have no determinative role. Junior right holders affected by the delivery call may respond thereto and shall bear the burden of proving, by clear and convincing evidence, that the call would be futile or is otherwise unfounded. A determination of the call shall be made by the director of the Idaho department of water resources in a timely and expeditious manner, based on the evidence in the record and the applicable presumptions and burdens of proof. A&B Irrigation Dist. v. Spackman (In re A&B Irrigation Dist.), 155 Idaho 640, 315 P.3d 828 (2013). Priority of Diversion.

§ 42-604. Creation of water districts.

The director of the department of water resources shall divide the state into water districts in such manner that each public stream and tributaries, or independent source of water supply, shall constitute a water district: provided, that any stream or water supply, when the distance between the extreme points of diversion thereon is more than forty (40) miles, may be divided into two (2) or more water districts: provided, that any stream tributary to another stream may be constituted into a separate water district when the use of the water therefrom does not affect or conflict with the rights to the use of the water of the main stream: provided, that any stream may be divided into two (2) or more water districts, irrespective of the distance between the extreme points of diversion, where the use of the waters of such stream by appropriators in one district does not affect or conflict with the use of the waters of such stream by appropriators outside such district: provided, that this section shall not apply to streams or water supplies whose priorities of appropriation have not been adjudicated by the courts having jurisdiction thereof.

The director may create, revise the boundaries of, or abolish a water district or combine two (2) or more water districts by entry of an order if such action is required in order to properly administer uses of the water resource. Copies of the order shall be sent by regular mail to all holders of rights to the waters affected by the order. The director’s order is subject to judicial review as provided in section 42-1701A, Idaho Code.

Before entering an order creating, modifying, or abolishing a district, the director shall, by regular mail, send notice of the proposed action to each water user in the district or proposed district. The notice shall describe the proposed action to be taken, the reasons therefore, the time and place of a hearing to be held concerning the proposed action, and provide a time period within which written comment on the action will be accepted. The hearing shall not be held sooner than ten (10) days after the mailing of the notice, and the written comment period shall not close sooner than ten (10) days after the hearing. Instead of mailing notice, the director may publish notice describing the proposed action, the time and place for the hearing, and the deadline for receiving written comment. The notice shall be published once a week for two (2) weeks in a newspaper or newspapers having general circulation within the district or proposed district, with the second publication appearing at least ten (10) days before the date set for the hearing. The hearing shall be held within the district or proposed district, or at some nearby location convenient to the affected water users.

Each water district created hereunder shall be considered an instrumentality of the state of Idaho for the purpose of performing the essential governmental function of distribution of water among appropriators under the laws of the state of Idaho.

History.

1903, p. 223, § 23; am. 1907, p. 532, § 2; reen. R.C., § 3274; am. 1909, p. 326, § 1; am. 1915, ch. 34, § 9, p. 103; reen. C.L., § 3274; C.S., § 5608; am. 1927, ch. 63, § 1, p. 78; I.C.A., § 41-504; am. 1986, ch. 78, § 1, p. 236; am. 1992, ch. 339, § 5, p. 1014. CASE NOTES

Application of Section.

On streams “whose priorities of appropriation and use have not been adjudicated by the courts having jurisdiction thereof” there could be no legal organization of water district, and no persons claiming to be officers of such district have any authority to determine priorities and amounts or to interfere with the irrigation works of any user. Marsters v. United States, 236 F. 663 (9th Cir. 1916).

Combining Districts.

Where the department of water resources wishes to combine two water districts on the same creek into one and the number of uncontested water rights along the creek is unknown, it must first hold a public hearing to hear the relevant claims; if the department decides there are insufficient uncontested rights to develop a workable plan for water distribution, it should proceed to an adjudication pursuant to§ 42-1406 before combining the two districts. Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977).

Conflicting Uses.

The mere fact that in 1977 there is a conflict between the use of water in one district and the use of water in another, both districts being on the same stream, is not sufficient to show that there was a conflict when the original district was split into two in 1916. Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977).

Estoppel to Deny Validity.

In action for contribution for expense of watermaster, defendant who had participated in meetings of water district and received benefits for eleven years could not deny liability, although this section had not been complied with in the formation of such water district. Owen v. Nampa & Meridian Irrigation Dist., 48 Idaho 680, 285 P. 464 (1930).

Immunity.

Validity of District.

In a suit brought by owners of flooded farmland, the state was immune from liability for any decision of the director of the department of water resources in taking measures to protect against failure of a dike; this immunity extended to the flood control district and the chairman, and also to the water district and its watermaster and chairman since there was no evidence they owned, controlled, operated or maintained or managed the dike. Marty v. State, 117 Idaho 133, 786 P.2d 524 (1989). Validity of District.

No particular steps are specified or form prescribed to be taken or followed by department of reclamation (department of water resources) in creating or designating water district. Owen v. Nampa & Meridian Irrigation Dist., 48 Idaho 680, 285 P. 464 (1930).

Since§§ 42-607 and 42-1405 assume the existence of unadjudicated rights within a water district, this section must be construed to mean that a water district may be validly created even though not all the users within the district have had their rights adjudicated. Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977).

The validity of the creation of a water district depends upon the number of unadjudicated constitutional use rights at the time of creation, not at the present. Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977).

Waters in Boise River.

Decision in case of Farmers Cooperative Ditch Co. v. Riverside Irrigation Dist. , 16 Idaho 525, 102 P. 481, together with decree and orders of trial court in that case, though not res judicata, constituted an adjudication of the waters in Boise River for the purpose of distribution. Owen v. Nampa & Meridian Irrigation Dist., 48 Idaho 680, 285 P. 464 (1930).

Cited

DeRousse v. Higginson, 95 Idaho 173, 505 P.2d 321 (1973).

OPINIONS OF ATTORNEY GENERAL

Instruments of State.

State water districts are instrumentalities of the state that exist for the purpose of assisting the Idaho department of water resources in carrying out its duty under this section to provide for the distribution of the public waters of the state in accordance with rights of prior appropriation.OAG 91-7.

Permanency.

The term of existence of Water District 1 as an administrative and geographic unit is continuous from its date of creation until dissolved by order of the director, and it is active year-round.OAG 91-7.

§ 42-605. District meetings — Watermaster and assistants — Election — Removal — Oath and bond — Advisory committee.

There shall be held on the first Monday in March in each year, except as provided in subsection (2) of this section, a meeting of persons owning or having the use of a water right in the waters of the stream or water supply comprising such district that is assessed or proposed to be assessed by such district, which right has been adjudicated or decreed by the court or is represented by valid permit or license issued by the department of water resources.
Such meeting shall be held at some place within the water district, or at some nearby location convenient to a majority of those entitled to vote thereat. The director of the department of water resources shall, at least twenty-one (21) days prior to the meeting date, send notification by regular mail to all persons, companies, corporations or other entities known by the director to hold rights that are assessed or proposed to be assessed by such district, which right has been adjudicated or decreed by the court or is represented by valid permit or license issued by the department of water resources, of the time, date, location and purpose of the annual meeting. At any annual meeting, the water users may vote to waive the requirement for notice by mail and provide for notice to be given for future meetings by publication of the time, date, location and purpose of the meeting in a newspaper or newspapers in general circulation in the district or on the department of water resources website. Published notice in a newspaper or newspapers shall be made once per week for two (2) consecutive weeks with the second notice appearing at least fourteen (14) and not more than thirty (30) days prior to the meeting. Notice on the department of water resources website shall be posted at least twenty-one (21) days prior to the meeting date. At any annual meeting, the water users may vote to change the date for annual meetings in subsequent years to any day, except Saturday and Sunday, between the second Monday of January and the fourth Tuesday of May. At an annual meeting, the water users may adopt resolutions to assure or improve the distribution of the waters of the district within state law and may provide that such resolutions shall continue from year to year.
At the meeting of the water users of a district, there shall be elected a watermaster for such water district, who may be authorized to employ such other regular assistants as the water users shall deem necessary, and who, upon appointment by the director, shall be responsible for distribution of water within said water district. Notwithstanding any personnel classification assigned to the watermaster and assistants pursuant to the provisions of chapter 53, title 67, Idaho Code, the water users shall, prior to the election of such watermaster and approval of the employment of assistants, fix the compensation to be paid them during the time actually engaged in the performance of their duties.
Voting shall be by majority vote of the water users present at the meeting unless one (1) or more water users requests voting using the procedure which follows in this subsection. In such case, the meeting chairman shall appoint a credentials committee to determine the number of votes each water user present is authorized to cast. If requested, each person present who owns or has the use for the ensuing season of any water right in the stream or water supply comprising such water district that is assessed or proposed to be assessed by such district, which right has been adjudicated or decreed by the court or is represented by valid permit or license issued by the department of water resources, shall be entitled to a number of votes equal to the average annual dollar amount and any fraction thereof assessed for that person’s qualifying water right for the previous five (5) years, or such lesser number of years as the right has been assessed. If a right has not previously been assessed, a person present who owns or has the use of the right for the ensuing season shall be entitled to a number of votes equal to the dollar amount and any fraction thereof that the right would have been assessed had it existed and been reasonably used when water was available under the priority of the right during the previous season. Absentee voting and voting by proxy are prohibited. (5) At such meeting, the water users shall choose a meeting chairman and meeting secretary. The water users of any water district that collects or pays district expenses in accordance with section 42-613(3) or 42-619, Idaho Code, shall also elect a water district treasurer. Within five (5) business days after such meeting, the meeting chairman and meeting secretary shall forward a certified copy of the minutes of such meeting to the department of water resources. The meeting chairman, or the meeting secretary if the meeting chairman is not present, from the immediately preceding annual meeting shall call the meeting to order and preside over the election of officers for the meeting.

(6) At such meeting, the water users may choose an advisory committee to be composed of members selected as may be determined at the meeting, which committee shall serve as advisors to the director and the watermaster in matters pertaining to the distribution of water within the district. The advisory committee may be authorized to carry out policies as set forth in resolutions duly adopted by the water users at the annual meeting or at a special meeting. The advisory committee may also serve as the local committee to facilitate the rental of stored water if appointed by the water resource board for such purpose under the provisions of section 42-1765, Idaho Code.

(7) A corporation or a water delivery organization, including but not limited to a water company, an irrigation district, an irrigation company or a canal company, shall be considered a person for the purpose of this section and shall designate someone to cast its vote.

(8) Should said meeting not be held, or should said watermaster not be elected or the watermaster’s compensation not be fixed as above provided, then the director is authorized to appoint a watermaster and fix the watermaster’s compensation.

(9) The director may remove any watermaster whenever such watermaster fails to perform the watermaster’s duty, upon complaint made to the director in writing, by one (1) person owning or having the right to the use of a water right that is assessed by such district, which right has been adjudicated or decreed by the court or is represented by valid permit or license issued by the department of water resources, provided, that upon investigation the director, after a hearing with the other water users of said district, which shall be held in the district or at some location convenient to the water users of the district, finds such charge to be true, and the director may appoint a successor for the unexpired term.

(10) Before entering upon the duties of the watermaster’s office, said watermaster shall take and subscribe to an oath before some officer authorized by the laws of the state to administer oaths, to faithfully perform the duties of the watermaster’s office, as provided in section 42-607, Idaho Code, and shall file that oath with the department of water resources. Upon appointment by the director, the actions taken by a watermaster in fulfillment of the duties of the office are covered by the state group surety bond as provided by sections 59-801 through 59-804, Idaho Code. A duly appointed watermaster that is reelected in consecutive years shall not be required to take and file additional oaths with the department of water resources for each consecutive year the watermaster is reelected. If a duly elected or appointed watermaster resigns, dies or is physically unable to perform the duties of the office during the remainder of the elected or appointed watermaster term of service, then the director is authorized to appoint a successor for the unexpired term as provided in paragraphs (a) and (b) of this subsection. (a) If a water district advisory committee has been chosen as provided in subsection (6) of this section, the water district advisory committee shall meet to either nominate a successor watermaster or request a special meeting as provided in subsection (11) of this section to elect a new watermaster. Upon receipt of a nomination from a majority of the members of the water district advisory committee, the director is authorized to appoint the nominated successor watermaster for the unexpired term.

(b) If a water district advisory committee has not been chosen, the director of the department of water resources is authorized to appoint a temporary successor watermaster. The temporary appointment extends through the unexpired term unless a special meeting is requested as provided in subsection (11) of this section and water users elect a new watermaster.

(11) The director shall call a special meeting of the water district upon receipt of a written request for such meeting from a majority of the members of the advisory committee for a district, a written request from water users representing thirty percent (30%) or more of the votes cast at the last regular annual meeting, a written request from the watermaster, or on the director’s own motion if the director determines a meeting is necessary to address matters that cannot be delayed until the next regular annual meeting. Notice of the time, place and purpose of the special meeting shall be given by the director in the manner provided in subsection (2) of this section, provided however, that a special meeting notice shall be sent at least fourteen (14) days prior to the meeting date.

(12) The water users may, by resolution, authorize the watermaster to acquire, hold and dispose of such real and personal property, equipment and facilities in the name of the water district as necessary for the proper distribution of water, administration of the water district and enhancement of water supplies and shall provide that all such real and personal property shall remain in the custody of the watermaster and the watermaster’s successor.

(13) The water users may, by resolution, authorize the watermaster to develop, coordinate or provide, through contract or by other means, for weather modification projects involving cloud seeding that are designed to increase the water supplies of the water district by enhancing natural precipitation and which conform to state water planning objectives.

History.

1903, § 24, p. 223; reen. R.C., § 3275; am. 1909, § 1, p. 326; am. 1915, ch. 34, § 10, p. 103; C.L., § 3275; C.S., § 5609; am. 1925, ch. 60, § 1, p. 86; am. 1931, ch. 94, § 1, p. 160; I.C.A.,§ 41-505; am. 1947, ch. 9, § 1, p. 9; am. 1969, ch. 305, § 1, p. 913; am. 1973, ch. 262, § 1, p. 534; am. 1982, ch. 14, § 1, p. 18; am. 1984, ch. 175, § 1, p. 420; am. 1987, ch. 112, § 1, p. 225; am. 1988, ch. 31, § 1, p. 38; am. 1991, ch. 101, § 1, p. 225; am. 1992, ch. 339, § 6, p. 1014; am. 2006, ch. 146, § 1, p. 458; am. 2011, ch. 176, § 1, p. 498; am. 2013, ch. 42, § 1, p. 87; am. 2013, ch. 327, § 1, p. 856; am. 2015, ch. 82, § 1, p. 204; am. 2018, ch. 40, § 1, p. 100; am. 2020, ch. 52, § 1, p. 123.

STATUTORY NOTES

Cross References.

Appointment of watermaster by owner of ditch, canal, or lateral,§ 42-901.

Compensation: Allotment and charge against land and canals,§ 42-610; Budget of water district, and district expenses,§§ 42-612 to 42-619.

Amendments.

The 2006 amendment, by ch. 146, in subsection (2), substituted “at least twenty-one (21) days prior to the meeting date, send notification” for “between January first and February first of each year, notify”, substituted “fourteen (14)” for “thirty (30)” and “thirty (30)” for “sixty (60)” in the fourth sentence, and substituted “twenty-one (21)” for “thirty (30)” in the fifth sentence; and in subsection (11), substituted “subsection (2) of this section, provided however, that a special meeting notice shall be sent at least fourteen (14) days prior to the meeting date” for “section 42-605(2), Idaho Code” at the end.

The 2011 amendment, by ch. 176, in subsection (10), inserted “to” following “and subscribe” in the first sentence and added the last sentence.

This section was amended by two 2013 acts which appear to be compatible and have been compiled together.

The 2013 amendment, by ch. 42, in subsection (10), added the last sentence in the introductory paragraph and added paragraphs (a) and (b).

The 2013 amendment, by ch. 327, in subsection (3), split the subsection into two sentences, inserting “Notwithstanding any personnel classification assigned to the watermaster and assistants pursuant to the provisions of chapter 53, title 67, Idaho Code” at the beginning of the second.

The 2015 amendment, by ch. 82, inserted “administration of the water district and enhancement of water supplies” in subsection (12) and added subsection (13).

The 2018 amendment, by ch. 40, rewrote this section, lengthening the period of time in which state water districts can hold annual meetings and clarifying that absentee and proxy voting are prohibited.

The 2020 amendment, by ch. 52, in subsection (1), deleted “all” preceding “persons owning” near the beginning and inserted “that is assessed or proposed to be assessed by such district” near the end; in subsection (2), substituted “that are assessed or proposed to be assessed by” for “to the use of the waters of” near the middle of the second sentence, added “or on the department of water resources website” at the end of the third sentence, inserted “in a newspaper or newspapers” near the beginning of the fourth sentence, added the present fifth sentence, and deleted “in which case the director shall send notification at least twenty-one (21) days prior to said meeting date” at the end of the sixth sentence; in subsection (4), substituted “present who owns or has” for “present, owning, or having” and inserted “that is assessed or proposed to be assessed by such district” near the beginning of the last sentence, and substituted “section 42-613(3) or 42-619, Idaho Code” for “section 42-618(3) or 42-619, Idaho Code” near the end of the second sentence in subsection (5).

Effective Dates.

Section 2 of S.L. 1982, ch. 14 declared an emergency. Approved February 26, 1982.

CASE NOTES

Immunity.

In a suit brought by owners of flooded farmland, the state was immune from liability for any decision of the director of the department of water resources in taking measures to protect against failure of a dike; this immunity extended to the flood control district and the chairman, and also to the water district and its watermaster and chairman since there was no evidence they owned, controlled, operated or maintained or managed the dike. Marty v. State, 117 Idaho 133, 786 P.2d 524 (1989).

Jurisdiction of Watermaster.

The 1969 amendment to this section defining a water right as “any water right which has been adjudicated by the court or is represented by valid permit or license issued by the department of reclamation” (department of water resources) delineates the jurisdiction and control of the watermaster of a water district. DeRousse v. Higginson, 95 Idaho 173, 505 P.2d 321 (1973). (Decision prior to 1973 amendment.).

Liability for Watermaster’s Acts.

Water company was no more responsible for acts of watermaster than any water user of system, so long as it did not aid, abet or ratify his acts. Bailey v. Idaho Irrigation Co., 39 Idaho 354, 227 P. 1055 (1924).

Nature of Office.

Watermaster is not an agent of water company or water user, but is a ministerial officer. Bailey v. Idaho Irrigation Co., 39 Idaho 354, 227 P. 1055 (1924).

Watermaster is a public administrative officer and holds office until his successor is elected or appointed and qualified. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Power of Commissioner.

Commissioner of reclamation (director of the department of water resources) had no power to determine legality of election of watermaster and appoint another in his place. Whitten v. Chapman, 45 Idaho 653, 264 P. 871 (1928).

Suit against Watermaster.

In suit against watermaster to adjudicate the rights of water users of certain wells, proceedings were not binding on users not made parties thereto. Owsley Canal Co. v. Henninger, 66 Idaho 485, 162 P.2d 389 (1945).

Voting Rights.

Each person or corporation with right equal to ten inches of water was entitled to one vote for every ten inches thus possessed and not to one vote only for his entire holdings. Whitten v. Chapman, 45 Idaho 653, 264 P. 871 (1928).

Corporation is person and may properly designate someone to cast its vote, based on whole number of inches of water to which it is entitled. Whitten v. Chapman, 45 Idaho 653, 264 P. 871 (1928).

Cited

Marsters v. United States, 236 F. 663 (9th Cir. 1916).

OPINIONS OF ATTORNEY GENERAL

District Funds.

Idaho law provides four alternative methods for the collection and disbursement of water district funds: (1) the county auditor and treasurer may collect and disburse the assessments; (2) the county auditor and treasurer may collect the assessments, and the water district treasurer may hold and disburse the water district funds; (3) the watermaster may collect the assessments, and the county treasurer may hold and disburse the assessments; (4) the watermaster may collect the funds, and the water district treasurer may hold and disburse the assessments; Idaho law does not permit the watermaster to act as treasurer for a water district, thus, Water District 1’s present practice of allowing the watermaster to also serve as treasurer is not permissible.OAG 91-7.

Officers.

The current officers of Water District 1 are the chairman and secretary whose primary duties are (1) presiding over the annual meeting of the district, (2) transmitting a certified copy of the budget to the Idaho department of water resources (IDWR) and the county auditor in some circumstances, and (3) preparing, maintaining and transmitting the minutes of the meeting to the IDWR; the daily business activities of the district are transacted by a watermaster elected by the water users and appointed by the director and the watermaster of Water District 1 presently serves as treasurer.OAG 91-7.

§ 42-605A. Nonconsumptive water rights — Assessments — Voting.

Notwithstanding other provisions of this chapter, the setting of annual water district assessments and the voting of permitted, licensed and decreed water rights administered by the watermaster solely for nonconsumptive purposes shall be determined in accordance with the provisions of this section. For purposes of this chapter, a water right is nonconsumptive if so designated by provisions of the permit or license issued by the department of water resources, or otherwise so designated by the director, or by decree of the court allowing use of the right to continue when the diversion of earlier priority water rights from the same source has been reduced or stopped by action of the watermaster.
A nonconsumptive water right is subject to the provisions of this section if water is taken into man-made facilities for beneficial use whether or not the water leaves the river or stream channel. Instream flow water rights held in the name of governmental entities or agencies for the protection of fish and wildlife habitat, aquatic life, recreation, aesthetic beauty, transportation and navigation values, and water quality shall be exempt from the payment of assessments and the rights shall not be voted. The procedure for collection and payment of the assessments shall be the same as used for consumptive water rights under this chapter.
In preparing the next year’s budget, the watermaster shall determine an assessment for the ensuing year for each water right used solely for nonconsumptive purposes. The assessment shall be sufficient to pay the additional costs and expenses for watermaster services for data collection, water measurement, delivery of water, and record keeping directly attributable to delivery of the water right.
The assessment shall not become final until adopted as part of the water district budget at the annual meeting of water users in accordance with section 42-612, Idaho Code. The assessment shall not exceed an amount necessary to pay for watermaster services associated with the nonconsumptive right. Nothing in this section shall affect the right, under section 42-612, Idaho Code, of the water users at the annual meeting to provide by resolution for a minimum charge for watermaster services, except as to those instream flow rights exempt from the payment of assessments under this section.
The holder of a water right assessed under the provisions of this section who desires to contest the amount of an assessment for a nonconsumptive water right shall file a written petition with the director of the department of water resources stating the grounds for contesting the assessment and requesting a hearing. The petition must be filed with the director within thirty (30) days after the billing is mailed to the holder of the water right as provided in section 42-613, Idaho Code. The hearing before the director and any judicial review thereof shall be in accordance with the provisions of section 42-1701A, Idaho Code. The filing of a petition under this section shall not relieve the holder of a nonconsumptive water right from the obligation to pay the assessment when due and payable. The amount of any excessive or deficient assessment determined by a final order of the director shall be credited or collected in the succeeding year in the manner provided under section 42-606, Idaho Code. (6) At water district meetings, each person present holding a water right used solely for nonconsumptive purposes shall be entitled to a number of votes equal to the average dollar amount and any fraction thereof assessed in accordance with subsection (3) of this section for that person’s qualifying nonconsumptive water right for the previous five (5) years, or such lesser number of years as the right has been assessed in accordance with subsection (3) of this section. If a nonconsumptive right has not been assessed in previous years using subsection (3) of this section, a person present owning or having the use of the right for the ensuing season shall be entitled to a number of votes equal to the dollar amount and any fraction thereof which the right is assessed under subsection (3) of this section for the ensuing season.

History.

I.C.,§ 42-605A, as added by 1991, ch. 101, § 2, p. 225; am. 1992, ch. 339, § 7, p. 1014; am. 2020, ch. 52, § 2, p. 123.

STATUTORY NOTES

Amendments.

The 2020 amendment, by ch. 52, substituted “section 42-613, Idaho Code” for “section 42-613 or 42-618, Idaho Code” near the end of the second sentence in subsection (5).

§ 42-606. Reports of watermasters.

All watermasters shall make an annual report to the department of water resources prior to the expiration of the watermaster’s appointment for the current year. This report shall show the total volume of water delivered by the watermaster during the preceding year, the volume delivered to each water user, the total expense of delivery and the apportionment of expenses among users and all debits and credits to be carried over to the following year. Such report shall also include the number of days the watermaster and watermaster assistants have devoted to the distribution of such water and any records of stream flow the watermaster used or made in the process of distributing water supplies. The director may ask for other information deemed necessary in assuring proper distribution of water supplies within the district. The reports of watermasters to the department of water resources shall be filed and kept in the office of the department.

History.

1903, p. 223, § 25; reen. R.C., § 3276; am. 1915, ch. 34, § 11, p. 103; reen. C.L., § 3276; C.S., § 5610; I.C.A.,§ 41-506; am. 1992, ch. 339, § 8, p. 1014; am. 2020, ch. 52, § 3, p. 123.

STATUTORY NOTES

Amendments.

The 2020 amendment, by ch. 52, substituted “volume” for “amount” twice in the second sentence and rewrote the third sentence, which formerly read: “Such report shall also include records of stream flow the watermaster used or made in the process of distributing water supplies.”

Compiler’s Notes.

§ 42-607. Distribution of water.

It shall be the duty of said watermaster to distribute the waters of the public stream, streams, or water supply comprising a water district among the water users taking water therefrom according to the prior rights of each respectively, in whole or in part, and to shut and fasten, or cause to be shut or fastened, under the direction of the department of water resources, the headgates or controlling works for the diversion of water from such stream, streams, or water supply, during times of water scarcity, in order to supply the prior rights of others from such stream or water supply; provided, that any person or corporation claiming the right to the use of the waters of the stream or water supply comprising a water district, but not owning or having the use of an adjudicated or decreed right therein, or right therein evidenced by permit or license issued by the department of water resources, shall, for the purposes of distribution during times of water scarcity, be held to have a right subsequent to any adjudicated, decreed, permit, or licensed right from such stream or water supply, and the watermaster shall close all headgates or controlling works of diversions having no adjudicated, decreed, permit or licensed right if necessary to supply adjudicated, decreed, permit or licensed right in such stream or water supply. As long as a duly elected watermaster is charged with the administration of the waters within a water district, no water user within such district can adversely possess the right of any other water user.

History.

1903, § 26; p. 223; reen. R.C., § 3277; am. 1909, § 1, p. 326; am. 1915, ch. 34, § 12, p. 103; C.L., § 3277; C.S., § 5611; am. 1927, ch. 63, § 2, p. 78; I.C.A.,§ 41-507; am. 1969, ch. 305, § 2, p. 913; am. 1973, ch. 262, § 2, p. 534; am. 1992, ch. 339, § 9, p. 1014; am. 2020, ch. 52, § 4, p. 123.

STATUTORY NOTES

Amendments.

Compiler’s Notes.

Effective Dates.

Section 3 of S.L. 1973, ch. 262 declared an emergency. Approved March 16, 1973.

CASE NOTES

Abandonment of Priority.

The right of priority to water in time of shortage, given under this section, may be abandoned. Graham v. Leek, 65 Idaho 279, 144 P.2d 475 (1944).

Constitutionality.

Although this section does not provide for notice and hearing prior to the shutting off of unadjudicated water rights, it is not in violation of procedural due process, since the need to restrict the use of water in times of shortage constitutes an extraordinary circumstance where valid governmental interest justifies the postponement of notice and hearing. Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977).

Since private water rights cannot be adequately protected unless the watermaster has specific record of the users’ priority dates, use and points of diversion through adjudication of licensing, the preference granted to users with adjudicated or licensed rights by this section does not constitute an unconstitutional denial of equal protection to users with unadjudicated “constitutional use” water rights. Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977).

Constitutional Use Water Right.

Construction.

One in possession of an unadjudicated constitutional use water right may have this right adjudicated at any time pursuant to§ 42-1405 and thereby acquire the protection of this section. Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977). Construction.

This section is intended to make the watermaster’s authority more certain, duties less difficult, and decisions less controversial; however, this section does not apply outside its own language to subordinate constitutional water rights for all purposes, it does not authorize one water user unilaterally to interfere with another’s superior rights, and it is not applicable to private disputes. R.T. Nahas Co. v. Hulet, 114 Idaho 23, 752 P.2d 625 (Ct. App. 1988).

Decree Governs Watermaster.

Watermaster could not be required to go beyond provisions of decree to ascertain whether or not the same was supported by findings or whether there was a conflict between the findings and decree, but he could look only to the decree for his instructions as to the amount of water to be distributed to each claimant. Stethem v. Skinner, 11 Idaho 374, 82 P. 451 (1905).

Landowners Outside District.

Only method by which owners of land lying outside the boundaries of an irrigation district could be entitled to use the waters or to acquire an interest in the district’s water was by annexation to the district itself. Jones v. Big Lost River Irrigation Dist., 93 Idaho 227, 459 P.2d 1009 (1969).

Loss of Right by Estoppel.

Holders of water rights are entitled to presume that a watermaster, who is authorized to distribute water only in compliance with applicable decrees, is delivering water to them in compliance with the priorities expressed in the governing decree, and unless holder of water right was aware that he was not receiving water from the watermaster in accordance with his decreed right, that right could not be lost through estoppel, the element of knowing acquiescence being lacking. Almo Water Co. v. Darrington, 95 Idaho 16, 501 P.2d 700 (1972).

Loss of Rights Through Forfeiture.

This section applies only to loss of water rights through adverse possession and does not affect the potential loss of water rights through forfeiture or abandonment. Olson v. Bedke, 97 Idaho 825, 555 P.2d 156 (1976).

Preference During Scarcity.

Where water rights of parties have been adjudicated, it is duty of watermaster during scarcity of water to treat unadjudicated rights as inferior and subordinate to decreed rights. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927); State v. Hall, 90 Idaho 478, 413 P.2d 685 (1966).

Since the right of appropriation does not carry with it an unconditional guarantee of water regardless of the supply of water available, the fact that the diversion belonging to a holder of an appropriated constitutional use water right must be shut off to allow those with priority to receive water does not justify a contention that private property has been taken for public use without just compensation contrary toIdaho Const., Art. I, § 14. Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977).

Preferential Use Not Adverse.

Distribution of water to decreed rights in time of scarcity was not adverse but permissive use based upon watermaster’s statutory duty to give preference. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Status of Watermaster.

A watermaster is an administrative officer and has no interest in the subject of litigation involving the water under his control. Nampa & Meridian Irrigation Dist. v. Barclay, 56 Idaho 13, 47 P.2d 916 (1935).

The watermaster is not the agent of the water company or water user, but is a ministerial officer. Jones v. Big Lost River Irrigation Dist., 93 Idaho 227, 459 P.2d 1009 (1969).

Unadjudicated Water Rights.

The 1969 amendment to this section deleting the preference of adjudicated water rights over unadjudicated water rights in times of water scarcity divested the watermaster of control and jurisdiction over unadjudicated water rights, and state reclamation engineer (now the director of department of water resources) and watermaster were properly enjoined from interfering with water diversion by plaintiff who claimed water right by constitutional appropriation. DeRousse v. Higginson, 95 Idaho 173, 505 P.2d 321 (1973) (Decision prior to 1973 amendment.).

Watermaster’s Duties.

His only duty is to distribute the waters of his district in accordance with the respective rights of appropriators, adjudicated rights having preference over unadjudicated rights. Nampa & Meridian Irrigation Dist. v. Barclay, 56 Idaho 13, 47 P.2d 916 (1935).

The watermaster’s duties are to determine decrees, regulate flow of streams and transfer the water of decreed rights to the appropriate diversion points. Jones v. Big Lost River Irrigation Dist., 93 Idaho 227, 459 P.2d 1009 (1969).

This section does not alter the doctrine of prior appropriation as applied to private water right disputes; rather, it governs the duties of the watermaster. R.T. Nahas Co. v. Hulet, 114 Idaho 23, 752 P.2d 625 (Ct. App. 1988).

Cited

Marsters v. United States, 236 F. 663 (9th Cir. 1916); Sears v. Berryman, 101 Idaho 843, 623 P.2d 455 (1981); Boise-Kuna Irrigation Dist. v. Gross, 118 Idaho 940, 801 P.2d 1291 (Ct. App. 1990).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the 1984 Swan Falls Settlement, Clive J. Strong & Michael C. Orr. 52 Idaho L. Rev. 223 (2016).

C.J.S.

§ 42-608. Watermaster’s term of service.

The director of the department of water resources, upon receipt of a certified copy of the meeting minutes and the oath of the watermaster as provided for in section 42-605, Idaho Code, shall appoint the watermaster to a term of service throughout the year, extending until the annual meeting for the ensuing year, or until a successor is appointed. A full-year appointment of the watermaster by the director shall have no effect on the watermaster’s compensation fixed by the water users at the annual water district meeting as provided for in section 42-605, Idaho Code.
A watermaster shall not begin work for the distribution and control of water required under section 42-607, Idaho Code, until called upon by one (1) or more owners or managers of ditches or persons controlling ditches or other diversion facilities in the district stating that there is a necessity for the distribution and control of the waters of the district. In the absence of a call by one (1) or more water users, the watermaster may be called upon to assume the watermaster’s duties at any time the department of water resources finds that there is a necessity for the distribution and control of the waters of the district.
The watermaster shall not continue performing services for the distribution and control of water after the necessity shall cease, which shall be determined by the department of water resources, and which shall not be after the first of November of each year, unless determined necessary by the department of water resources, or is otherwise provided by a resolution adopted at the annual water users’ meeting for the water district, or upon receipt of a petition requesting an extension of the watermaster’s services for the distribution and control of water in any year from the holder of a water right authorizing the diversion or storage of water during the time period for which the extension is sought and upon a determination of necessity for the diversion or storage of water. Payment for watermaster services during the extension shall be the responsibility of the holders of water rights delivered by the watermaster during the extension. For the purpose of determining voting rights at a water district meeting, amounts paid for watermaster services pursuant to this subsection shall be included in the calculation of annual assessment amounts and assessment rates under sections 42-605 and 42-605A, Idaho Code.
At any annual meeting the water users may, by resolution, provide that the watermaster shall serve throughout the year, or for a set term during each year, for purposes of distribution and control as provided in section 42-607, Idaho Code.

History.

1903, p. 223, § 27; reen. R.C., § 3278; am. 1909, p. 326, § 1; am. 1915, ch. 34, § 13, p. 103; reen. C.L., § 3278; C.S., § 5612; am. 1927, ch. 63, § 3, p. 78; I.C.A.,§ 41-508; am. 1939, ch. 199, § 1, p. 378; am. 1991, ch. 101, § 3, p. 225; am. 1992, ch. 339, § 10, p. 1014; am. 2011, ch. 176, § 2, p. 498.

STATUTORY NOTES

Amendments.

The 2011 amendment, by ch. 176, rewrote the section to the extent that a detailed comparison is impracticable.

Compiler’s Notes.

Effective Dates.

Section 4 of S.L. 1991, ch. 101 declared an emergency. Approved March 27, 1991.

CASE NOTES

Construction.

This provision is mandatory and watermaster could not recover for services as such watermaster unless services were rendered after written application had been presented to him. Walker v. Elmore County, 16 Idaho 696, 102 P. 389 (1909).

Watermaster is paid per diem compensation. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Term of Office.

This section does not expressly fix term of office of watermaster but he holds office until his successor is elected or appointed and has qualified. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

§ 42-609. Watermaster’s assistants — Employment in emergency — Oath and compensation.

A watermaster shall have power, in case of emergency, with the approval of the director of the department of water resources, to employ suitable assistants in addition to those who may have been approved at the annual meeting of the water users of the district to aid the watermaster in the discharge of the watermaster’s duties, who shall take the same oath as the watermaster, and shall obey the watermaster’s instructions, and shall be entitled to a salary as set by the water users in their adopted budget and approved by the director of the department of water resources, or if no budget is adopted, then as set by the director of the department of water resources, to be paid in the same manner as provided for the payment of watermasters.

History.

1903, p. 223, § 28; reen. R.C., § 3279; am. 1915, ch. 34, § 14, p. 103; reen. C.L., § 3279; C.S., § 5613; am. 1927, ch. 63, § 4, p. 78; I.C.A.,§ 41-509; am. 1980, ch. 277, § 1, p. 721; am. 1992, ch. 339, § 11, p. 1014.

STATUTORY NOTES

Effective Dates.

Section 5 of S.L. 1927, ch. 63 declared an emergency.

§ 42-610. Compensation of watermasters — Allotment and charge against land — Charge against canal.

The pay for the services of the watermaster and the watermaster’s assistants shall be assessed against the land of the water users to which said water was so delivered. The amount assessed to each user shall be a pro rata share based on the volume of water delivered to each water user in proportion to the whole amount delivered to all water users. When any portion of the allotted waters is distributed by said watermaster to the canal of any water delivery organization, the amount of the expense chargeable for such services shall be assessed against such canal.

History.

1903, p. 223, § 29; am. 1907, p. 482, § 1; reen. R.C., § 3280; am. 1915, ch. 34, § 15, p. 110; reen. C.L., § 3280; C.S., § 5614; am. 1925, ch. 60, § 2, p. 86; am. 1927, ch. 81, § 1, p. 99; I.C.A.,§ 41-510; am. 1992, ch. 339, § 12, p. 1014; am. 2020, ch. 52, § 5, p. 123.

STATUTORY NOTES

Cross References.

Compensation fixed by election at district meeting or by department of water resources,§ 42-605.

Compensation of watermaster appointed by court,§ 42-901.

Amendments.

The 2020 amendment, by ch. 52, rewrote the section to the extent that a detailed comparison is impracticable.

Compiler’s Notes.

CASE NOTES

Assessment of Compensation.

Portion of judgment which required direct assessment of costs of watermaster against defendant in order to discourage future interference with plaintiff’s water rights was premature and inappropriate; while plaintiff might have an action against defendant for those costs, the costs must first be assessed against plaintiff. R.T. Nahas Co. v. Hulet, 106 Idaho 37, 674 P.2d 1036 (Ct. App. 1983), modified on other grounds, 114 Idaho 23, 752 P.2d 625 (Ct. App. 1988).

Cited

Bailey v. Idaho Irrigation Co., 39 Idaho 354, 227 P. 1055 (1924).

§ 42-611. Compensation of watermaster and assistants

Payment and collection from water users. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised 1903, p. 223, § 30; am. R.C. & C.L., § 3281; C.S., § 5615; I.C.A.,§ 41-511, was repealed by S.L. 1989, ch. 286, § 1.

§ 42-612. Proposed water district budget for succeeding year — Adoption and contents of budget — Debt of water user.

Each watermaster shall, at least fourteen (14) days prior to the annual meeting of the water users of the water district, prepare a proposed budget for the succeeding year, together with a distribution of the pro rata amounts of the budget assessed to the respective water users or water delivery organizations using the actual volume of water delivered for the past season or seasons. The proposed budget and distribution of pro rata assessments shall be presented to the water users for consideration and approval at the next annual meeting.
At any annual meeting, the water users must adopt a budget covering the estimated expenses of delivering the water of the district for the ensuing year and by resolution determine that the budget shall be collected. The compensation of the watermaster and the watermaster’s assistants and any other expenses of delivering the water of the district to the users thereof, including the costs of the advisory committee in implementing resolutions adopted by the water users of the district for activities other than the payment of the salary and operating expenses of the watermaster and assistants, shall be paid in the manner hereinafter, in this section, provided.
To the extent possible, funding for advisory committee expenses associated with implementing resolutions adopted by the water users for other than the payment of the salary and operating expenses of the watermaster and assistants shall come from funds available pursuant to section 42-613A, Idaho Code. If funds available pursuant to section 42-613A, Idaho Code, are not sufficient to cover expenses incurred in implementing resolutions adopted by the water users, then such expenses shall come from assessments.
The budget shall show the aggregate amount to be collected from all the water users in the district and the amount to be paid by each water delivery organization or other water user. For the purpose of computing the respective amounts to be paid by each water user, the actual volume of water delivered to each water delivery organization or other water user during the past season or seasons, not exceeding five (5) seasons, shall be used as a basis. If a right has not previously been assessed or if past season delivery records are not available, the watermaster may, by resolution of the water users, estimate the volume of water delivered or reasonably used when water was available under the priority of the right during the past season or seasons.
Upon the adoption of the budget, the amount payable by each water delivery organization or other water user, as shown by the budget, shall become the debt of each respectively and shall become due and payable as hereinafter provided. Other provisions of chapter 6, title 42, Idaho Code, notwithstanding, water users may at the annual meeting by resolution provide for an annual minimum charge not to exceed two hundred fifty dollars ($250) per water user for watermaster services. The minimum charge is applicable whenever the prorated charge against any water delivery organization or other water user is less than the minimum charge.

History.

(6) Other provisions of chapter 6, title 42, Idaho Code, notwithstanding, water users at the annual meeting may provide, by resolution, that the respective amounts owed by each water user as shown in the adopted budget shall constitute a final determination of the amount due for that year without the need to carry forward any water user debits or credits to the following year. History.

C.S., § 5615-A, 1st par., as added by 1927, ch. 39, § 1, p. 51; I.C.A.,§ 41-512; am. 1933, ch. 217, § 1, p. 462; am. 1980, ch. 139, § 1, p. 305; am. 1992, ch. 339, § 13, p. 1014; am. 1998, ch. 179, § 1, p. 665; am. 2000, ch. 83, § 1, p. 173; am. 2014, ch. 65, § 1, p. 168; am. 2015, ch. 82, § 2, p. 204; am. 2020, ch. 52, § 6, p. 123.

STATUTORY NOTES

Amendments.

The 2014 amendment, by ch. 65, substituted “exceed two hundred fifty dollars ($250.00)” for “exceed fifty dollars ($50.00)” in the second sentence of subsection (4).

The 2015 amendment, by ch. 82, added the last sentence in subsection (2).

The 2020 amendment, by ch. 52, rewrote the section heading, which formerly read: “Budget of water district — Adoption and contents — Debt of water user”; added present subsection (1) and redesignated the existing subsections accordingly; rewrote subsection (4), which formerly read: “The budget shall show the aggregate amount to be collected from all the water users in the district, and the amount to be paid by each ditch, canal company, irrigation district or other water user. For the purpose of computing the respective amounts to be paid by each water user, the water delivered to the various ditches, canal companies, irrigation districts or other users during the past season or seasons, not exceeding five (5) seasons, shall be used as a basis”; and substituted “water delivery organization” for “ditch, canal company, irrigation district” near the beginning of the first sentence and near the end of the last sentence in subsection (5).

§ 42-613. Budget — Filing of resolutions and copies — Collection — Time for collection of budget — Payment of district expenses by county — Water not delivered until charges paid.

The budget when adopted shall be filed with the secretary of the meeting and thereupon the watermaster shall immediately prepare and file a certified copy of the budget, along with a copy of all resolutions adopted at the annual meeting, with the director of the department of water resources.
At any annual meeting, the water users may, by resolution, designate the county or counties in which water is delivered to collect the compensation of the watermaster and watermaster assistants, and other expenses of delivering water within the district, in the manner provided by law for the collection of other taxes. When the county or counties are so designated, a certified copy of the budget, along with a copy of all resolutions adopted at the meeting and under the provisions of this section, shall be filed with the county or counties so designated. If more than one (1) county is designated, then the budget shall show the amount to be collected in each county and from which water users each county shall collect. Each county or counties so designated shall immediately prepare a roll showing the total amount of the budget to be collected by the county and the respective amounts to be collected from each water delivery organization or other water user. When the roll is completed, the county auditor shall deliver the roll to the county treasurer for collection. The county treasurer shall thereupon mail a notice to each water delivery organization or other water user of the amount payable by each such water user for the distribution of water and other expenses of the district for the ensuing year. The county treasurer, upon receipt of the roll, shall open a special account to be known as “Water District. . . . Funds” and shall credit to the account all moneys received from the water users of said district. The water users may, by resolution, designate the county or counties that collect the expenses of the district to pay the compensation of the watermaster and watermaster assistants and any other charges against said water district from the funds of said account in the same manner as bills against the county are paid, unless such county or counties have determined not to provide county services for the payment of district expenses as provided in section 42-619, Idaho Code.
At any annual meeting, the water users may, by resolution, authorize the watermaster or water district treasurer to collect the compensation of the watermaster and watermaster assistants, and other expenses of delivering water within the district, directly from the water users. When so authorized, the watermaster or water district treasurer shall collect such compensation and expenses directly from the water users and shall turn the collected funds over to the water district treasurer for deposit and disbursement in accordance with section 42-619, Idaho Code.
In any water district, whether expenses are collected from water users either by a county or directly by the water district watermaster or treasurer, the water users may, by resolution at an annual meeting, fix a date upon which the amount shall be due and payable of said year and if not paid when due shall bear a penalty not to exceed ten percent (10%) of the amount owed and interest of one percent (1%) per month, both of which shall be fixed by resolution from said date until paid. (5) The water users in such water districts may also, at any annual meeting, authorize the watermaster to withhold water deliveries, or suspend water deliveries in the event delivery has commenced, from those users who have not paid their pro rata share of the cost of operating the district as levied until such time as said pro rata share of the cost is paid.

(6) Notice of the amount due by each water user, as shown by the adopted budget at the annual meeting, to be mailed to each respective water user by the county treasurer or the water district watermaster or treasurer, shall also state the substance of any resolution adopted pursuant to this section.

History.

I.C.,§ 42-613, as added by 2020, ch. 52, § 8, p. 123.

STATUTORY NOTES

Cross References.

Claims against counties,§ 31-1501 et seq.

Director of department of water resources,§ 42-1801 et seq.

Prior Laws.

Former§ 42-613, Budget — Collection — Payment of district expenses, which comprised C.S., § 5615-A, 2d & 3d par., as added by 1927, ch. 39, § 1, p. 51; I.C.A.,§ 41-513; am. 1992, ch. 339, § 14, p. 1014; am. 2000, ch. 83, § 2, p. 173, was repealed by S.L. 2020, ch. 52, § 7, effective July 1, 2020.

OPINIONS OF ATTORNEY GENERAL

District Funds.

§ 42-613A. Proceeds from the lease of stored water — District retention — Control and use by advisory committee.

The advisory committee of a water district created pursuant to section 42-604, Idaho Code, and chosen pursuant to section 42-605(6), Idaho Code, when appointed by the water resource board to facilitate the rental of stored water in the district pursuant to section 42-1765, Idaho Code, shall be authorized to manage and retain in a special account the proceeds accruing within the district from the rental of storage water leased under the provisions of section 42-1765, Idaho Code. Notwithstanding the supervisory responsibilities of the director of the department of water resources over the activity of watermasters delivering water within water districts, the account shall be under the exclusive control of the advisory committee of the water district when such committee has been appointed by the water resource board to facilitate the rental of stored water in the district within which the leased water is stored.

All proceeds from the lease of stored water which are retained by the advisory committee of any district under this section shall be used in accordance with the resolutions duly adopted by the water users of the district solely for one or more of the following public purposes:

Expenses of the district.
Improvements to the district’s facilities, including a reasonable reserve for future improvements.
Educational projects designed to increase public awareness in the area of water distribution, water rights and water conservation.
Other public projects designed to assist in the adjudication, conservation or more efficient distribution of water.

All funds retained by an advisory committee pursuant to this section shall be deposited by the water district treasurer pursuant to the public depository law.

History.

I.C.,§ 42-613A, as added by 1986, ch. 78, § 3, p. 236; am. 1992, ch. 339, § 15, p. 1014.

STATUTORY NOTES

Cross References.

Public depository law,§ 57-101 et seq.

Water resource board,§ 42-1701 et seq.

OPINIONS OF ATTORNEY GENERAL

Water Bank Funds.

This section does not vest in the local committee of a water district any responsibilities regarding the collection, investment, or disbursement of water bank funds; the water district retains authority over water bank funds.OAG 91-7.

§ 42-614. Report of water delivered — Basis for apportionment of expenses — Excessive or deficient payments

Filing of report. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.S., § 5615-A, 4th par., as added by 1927, ch. 39, § 1, p. 51; I.C.A.,§ 41-514; am. 1937, ch. 24, § 1, p. 33; am. 1939, ch. 199, § 2, p. 378, was repealed by S.L. 1992, ch. 339, § 16.

§ 42-615. Proposed budget for succeeding year. [Repealed.]

Repealed by S.L. 2020, ch. 52, § 9, effective July 1, 2020.

History.

C.S., § 5615-A, 5th par., as added by 1927, ch. 39, § 1, p. 51; I.C.A.,§ 41-515; am. 1992, ch. 339, § 17, p. 1014; am. 2011, ch. 176, § 3, p. 498.

§ 42-616. Budget — Action to collect charges — Attorney’s fees.

The county treasurer or water district treasurer of a water district shall have the right to collect any charges due and unpaid, by civil action, said action to be brought in any court of competent jurisdiction, in the name of the county treasurer or water district treasurer to whom such charges are payable, and in addition to the amount found due, together with interest and costs, may also recover such sum as the court may adjudge reasonable as attorney’s fees in said action.

History.

C.S., § 5615-A, 6th par., as added by 1927, ch. 39, § 1, p. 51; I.C.A.,§ 41-516; am. 1992, ch. 339, § 18, p. 1014.

STATUTORY NOTES

Effective Dates.

Section 2 of S.L. 1927, ch. 39 declared an emergency.

CASE NOTES

Cited

Owen v. Nampa & Meridian Irrigation Dist., 48 Idaho 680, 285 P. 464 (1930).

§ 42-617. Time for collection of budget — Water not delivered until charges paid — Filing of resolutions and copies

Collection at time fixed. [Repealed.]

Repealed by S.L. 2020, ch. 52, § 10, effective July 1, 2020.

STATUTORY NOTES

Amendments.

The 2011 amendment, by ch. 176, added the last sentence in subsection (4); added “as provided by section 42-605(9), Idaho Code” at the end of subsection (5); and twice substituted “seven thousand five hundred dollars ($7,500)” for “three thousand dollars ($3,000)” in subsection (11).

Compiler’s Notes.

The 2020 amendment, by ch. 52, added “Treasurer — Election — Oath and Bond — Removal — Compensation” to the end of the section heading; substituted “section 42-613(2), Idaho Code” for “section 42-613, Idaho Code” near the beginning of subsection (1); in subsection (3), in the first sentence, inserted “or for which the water users have taken the action provided for in section 42-613(2), Idaho Code” near the beginning and substituted “election and appointment” for “election or appointment” near the end, in the second sentence, substituted “resources is authorized to” for “resources shall” near the end and added “and fix the treasurer’s compensation” at the end; substituted “section 42-613(3), Idaho Code” for “in subsection (10) of this section and have notified the county thereof” near the beginning of subsection (7); substituted “shall disburse moneys from the water district account only” for “shall only disburse moneys from the water district account” near the beginning of subsection (8); deleted former subsection (10), which read: “In any water district for which the county commissioners have not taken the action provided for in subsection (1) of this section, the water users may at the annual meeting of the district approve a resolution authorizing the election or appointment of a water district treasurer who shall exercise all duties and responsibilities of a treasurer provided for in this section”; and redesignated former subsection (11) as present subsection (10). Compiler’s Notes.

The bracketed insertion in the first sentence in subsection (7) was added by the compiler, as an extra comma was left in that sentence by the 2020 amendment of this section.

OPINIONS OF ATTORNEY GENERAL

District Funds.

The watermaster of Water District 1 should not have custody of the funds of Water District 1 and assuming Water District 1 has elected to follow this section, a district treasurer should be elected to have custody of Water District 1 funds and to make disbursements from these funds; the district treasurer is prohibited by the provisions of the Public Depository Law from investing any district funds in common stocks, corporate bonds, mutual funds and other types of equity securities.OAG 91-7.

§ 42-620. Additional water district expenses relating to costs of the department of water resources for administration of water rights on the eastern snake river plain. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised I.C.,§ 42-620, as added by 2005, ch. 363, § 1, p. 1151; am. 2007, ch. 204, § 1, p. 627, was repealed by S.L. 2008, ch. 134, § 1.

Chapter 7 HEADGATES AND MEASURING DEVICES

Sec.

§ 42-701. Installation and maintenance of controlling works and measuring devices by water appropriators — Procedure upon failure to install and maintain — Measuring and reporting of diversions — Penalty for failure to comply — Enforcement procedure — Report filing fee.

The appropriators or users of any public waters of the state of Idaho shall maintain to the satisfaction of the director of the department of water resources suitable headgates and controlling works at the point where the water is diverted. Each device shall be of such construction that it can be locked and kept closed by the watermaster or other officer in charge, and shall also be of such construction as to regulate the flow of water at the diversion point. Each such appropriator shall construct and maintain, when required by the director of the department of water resources, a rating flume or other measuring device at such point as is most practical in such canal, ditch, wellhead or pipeline for the purpose of assisting the watermaster or department in determining the amount of water that may be diverted into said canal, ditch, wellhead or pipeline from the stream, well or other source of public water. Plans for such headgates, rating flumes or other measuring devices shall be approved by the department of water resources.
If an appropriator determines that installation and maintenance of a measuring device required by the director would be burdensome for his diversion, the appropriator may, upon approval of the director, execute an agreement with the director and submit to the director such information and technical data concerning the diversion and pumping facilities as the director determines necessary to establish the relationship of power usage to water withdrawal by any pump used to divert public water.
Any appropriator or user of the public waters of the state of Idaho that neglects or refuses to construct or maintain such headgates, controlling works, or measuring devices, or has not executed an agreement in lieu of a measuring device as provided in subsection (2) of this section, upon receiving ten (10) days’ notice from the director of the department of water resources within which to begin and diligently pursue to completion the construction or installation of the required device or devices or to begin and diligently pursue to completion a remedy to such defects as exist in accordance with said notice, then the director of the department of water resources may order the duly qualified and acting watermaster of the water district to shut off and refuse to deliver at the point of diversion, the water owned by such appropriator or user until the user does construct and maintain such headgates, controlling works or measuring devices or remedy the defects which exist or the director may take action pursuant to section 42-1701B, Idaho Code, to enforce the requirement to construct, install or maintain such devices.
The appropriators or users of the public waters of the state of Idaho shall be given a reasonable time within which to complete construction of such headgates, controlling works or measuring devices, depending upon the size and extent thereof, when due diligence has been used in the prosecution of such work. (5) All appropriators of the public waters of the state of Idaho who are given thirty (30) days’ written notice by the director prior to the beginning of the irrigation season but no later than March 15 of any year, shall measure their water diversions and report said diversions annually thereafter on a form approved by the director of the department of water resources. Such report shall include: a legal description of the point of diversion, the number assigned to each water right diverting from the public waters of the state, the maximum authorized rate of diversion, the maximum rate at which diversions have been made during the reporting period, the total volume diverted during the reporting period, and a description of the physical changes to the diversion works that have been made during the reporting period. The appropriator shall furnish each year the depth to water in any well prior to commencement of pumping, the depth to water during the pumping period, and the pressure in the pipe distribution system during diversion if the well is not free flowing. When the director of the department of water resources determines that any person is in substantial violation of any provision of this section or any rule, permit, condition of approval or order issued or promulgated pursuant to this section, the director may commence an administrative enforcement action by issuing a written notice of violation in accordance with the provisions of section 42-1701B, Idaho Code. Subsections (5) and (6) of this section shall not apply to:
1. any appropriator or water user with respect to a water right included in an active water district created pursuant to chapter 6, title 42, Idaho Code, the annual report of which meets the reporting requirements of section 42-708, Idaho Code;
2. any irrigation district or ground water district having shown to the satisfaction of the director that they are currently making and recording sufficient measurements of their diversions with measuring methods acceptable to the director and upon their agreement to provide an annual report of their diversions to the director in substantially the same form as required in section 42-708, Idaho Code; and
3. any water right included in an active water measurement district created pursuant to this chapter.

(6) The director of the department of water resources shall collect a report processing fee of twenty-five dollars ($25.00) per diversion required to be reported, including those diversions covered by an agreement in lieu of a measuring device as provided in subsection (2) of this section. Such fee shall be submitted with the annual report of diversions and well data. All such fees received by the department shall be deposited in the water administration account created pursuant to section 42-238a, Idaho Code, for use by the department to collect, analyze and report water use information and to regulate water withdrawal and use.

(7) All domestic uses, as defined in section 42-111, Idaho Code, and all stock watering uses, as defined in section 42-1401A, Idaho Code, shall be exempt from the measuring device installation and maintenance, measuring and reporting requirements of this section.

History.

1899, p. 223, § 31; reen. R.C., § 3282; am. 1913, ch. 68, p. 305; am. 1915, ch. 34, § 16, p. 111; am. 1917, ch. 53, part of § 1, p. 122; reen. C.L., § 3282; C.S., § 5616; am. 1927, ch. 69, § 2, p. 85; I.C.A.,§ 41-601; am. 1994, ch. 430, § 1, p. 1388; am. 1995, ch. 291, § 1, p. 1013; am. 1996, ch. 298, § 2, p. 977; am. 1997, ch. 374, § 1, p. 1192; am. 1998, ch. 173, § 6, p. 595.

STATUTORY NOTES

Cross References.

Distributor of water under fixed annual charge, water companies to furnish headgates and measuring devices,§ 42-903.

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation), was changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Effective Dates.

Section 3 of 1994, ch. 430, declared an emergency. Approved April 7, 1994.

Section 8 of S.L. 1997, ch. 374 declared an emergency. Approved March 24, 1997.

CASE NOTES

Requirement as Permit Condition.

The director of the Idaho department of water resources was authorized to require that a permittee maintain a measuring device as a condition for granting an amendment to a water permit. Hardy v. Higginson, 123 Idaho 485, 849 P.2d 946 (1993).

§ 42-702. Measuring devices above reservoirs.

Any person, firm or corporation using the channel of any stream or streams or any tributary of such stream or streams in this state as an impounding reservoir shall place therein at a point above and as near as practicable to the backwater of such reservoir such system or device as the department of water resources may require for measuring the flow of water at such point and in accordance with plans and specifications which shall be furnished by the department.

§ 42-706. Creation of water measurement districts.

The director of the department of water resources is authorized to divide the state into water measurement districts in such manner that each public water source or sources or part thereof shall constitute a water measurement district; provided, that any appropriation or use included in a water district created pursuant to chapter 6, title 42, Idaho Code, shall not be included in a water measurement district. Appropriators or users of water for hydropower, instream flow, aquaculture purposes and irrigation districts duly organized under title 43, Idaho Code, holding water rights for distribution to landowners within the irrigation district, and ground water districts duly organized under chapter 52, title 42, Idaho Code, may petition to be excluded from the water measurement district at the time the water measurement district is created or modified, or at a later time, upon a showing to the satisfaction of the director that they are currently making and recording sufficient measurements of their diversions with measuring methods acceptable to the director and upon their agreement to provide an annual report of their diversions to the director in substantially the same form as required in section 42-708, Idaho Code. The director may create, revise the boundaries of, or abolish a water measurement district or combine two (2) or more water measurement districts by entry of an order if such action is required in order to properly administer uses of the water resource. Copies of the order and notice of the first meeting of the water measurement district shall be sent by regular mail to all holders of rights to the waters affected by the order.
Before entering an order creating, modifying, or abolishing a district, the director shall, by regular mail, send notice of the proposed action to each appropriator and water user in the district or proposed district. The notice shall describe the proposed action to be taken, the reasons therefor, the time and place of a hearing to be held concerning the proposed action, and provide a time period within which written comment on the action will be accepted. The hearing shall not be held sooner than ten (10) days after the mailing of the notice, and the written comment period shall not close sooner than ten (10) days after the hearing. Instead of mailing notice, the director may publish notice describing the proposed action, the time and place for the hearing, and the deadline for receiving written comment. The notice shall be published once a week for two (2) weeks in a newspaper or newspapers having general circulation within the district or proposed district, with the second publication appearing at least ten (10) days before the date set for the hearing. The hearing shall be held within the district or proposed district, or at some nearby location convenient to the affected appropriators or water users.
Each water measurement district created hereunder shall be considered an instrumentality of the state of Idaho for the purpose of performing the essential governmental function of measurement of water within the district. (4) Any order of the director issued pursuant to this section is subject to judicial review as provided in section 42-1701A, Idaho Code.

History.

I.C.,§ 42-706, as added by 1995, ch. 291, § 3, p. 1013; am. 1996, ch. 298, § 3, p. 977.

STATUTORY NOTES

Effective Dates.

Section 10 of S.L. 1996, ch. 298 declared an emergency. Approved March 18, 1996.

§ 42-707. District meetings — District hydrographer and assistants — Election — Removal — Oath and bond — Advisory committee — District treasurer.

There shall be held, except as provided in subsection (2) of this section, on the first Monday in November in each year commencing at two o’clock P.M., a meeting of all persons owning or having the use of a water right in the waters of the stream or water supply comprising such district. For purposes of this chapter, a water right is a right which has been adjudicated by the court, is represented by valid permit or license issued by the department of water resources, or is based upon diversion and beneficial use and is recorded by a claim to water right on file with the department of water resources.
Such meeting shall be held at some place within the water measurement district, or at some nearby location convenient to a majority of those entitled to vote thereat, which place shall be designated by the director of the department of water resources. The director shall provide notice of district meetings by publication of the time, date, location and purpose of the meeting in a newspaper or newspapers in general circulation in the district. Published notice shall be made once per week for two (2) consecutive weeks with the second notice appearing at least thirty (30) and not more than sixty (60) days prior to the meeting. The appropriators or water users of any water measurement district may, by resolution adopted at an annual meeting or at a special meeting properly called for that purpose, change the time of day when the meeting shall commence or change the date for annual meetings in subsequent years to any day, except Saturday or Sunday, between the first Monday of November and the fourth Monday in February or change both the time and the date. At an annual meeting the appropriators or water users may adopt resolutions to assure or improve the measurement of the waters of the district within state law, and may provide that such resolutions shall continue from year to year.
At the meeting of the appropriators or water users of a district there shall be elected a qualified district hydrographer for such water measurement district, who may be authorized to employ such other qualified regular assistants as the appropriators or water users shall deem necessary, and who, upon qualification and appointment by the director of the department of water resources, shall be responsible for measurement of water as in this chapter required within the water measurement district, and the appropriators or water users shall, prior to the election of such district hydrographer and approval of the employment of assistants, fix the compensation to be paid them during the time actually engaged in the performance of their duties. Qualifications for the district hydrographer and hydrographer’s assistants include:
1. Any combination of education or experience that demonstrates to the satisfaction of the director of the department of water resources the applicant’s ability to conduct water measurements, to perform mathematical computations associated with water measurements, to keep complete and accurate records of water measurements, to be familiar with common terminology associated with water rights and water diversion and use, and to be able to read public land legal descriptions, translate written public land legal descriptions to map locations and find those locations on the land; and (b) In addition, the district hydrographer’s qualifications shall include any combination of education or experience that demonstrates to the satisfaction of the director of the department of water resources the applicant’s ability to keep financial records as those records pertain to the expenses of the district, prepare a budget, and prepare assessments and billings for the appropriators or water users in the district.
The appropriators or water users may, by resolution, authorize the district hydrographer to utilize, through a memorandum of understanding, water delivery organizations as hydrographer’s assistants.
Voting shall be by majority vote of the appropriators or water users present at the meeting unless one (1) or more appropriators or water users requests voting using the procedure which follows in this subsection. In such case the meeting chairman shall appoint a credentials committee to determine the number of votes each appropriator or water user present is authorized to cast. If requested, each person present, owning or having the use for the ensuing season of any water right in the stream or water supply comprising such water measurement district shall be entitled to a number of votes equal to the average annual dollar amount and any fraction thereof assessed for that person’s qualifying water right for the previous five (5) years, or such lesser number of years as the right has been assessed. If a right has not previously been assessed, a person present, owning or having the use of the right for the ensuing season shall be entitled to a number of votes equal to the dollar amount and any fraction thereof which the right would have been assessed had it existed and been used during the previous year.
At such meeting the appropriators or water users shall choose a meeting chairman and meeting secretary and shall determine the manner and method of electing the district hydrographer. Within five (5) days after such meeting the meeting chairman and meeting secretary shall forward a certified copy of the minutes of such meeting to the department of water resources. The meeting chairman, or the meeting secretary if the meeting chairman from the immediately preceding annual meeting is not present, shall call the meeting to order and preside over the election of officers for the meeting.
At such meeting the appropriators or water users may choose an advisory committee to be composed of members selected as may be determined at the meeting, which committee shall serve as advisors to the director and the district hydrographer in matters pertaining to the measurement of water within the district. The advisory committee may be authorized to carry out policies pertaining to the measurement of water within the district as set forth in resolutions duly adopted by the appropriators or water users at the annual meeting or at a special meeting.
A corporation or a water delivery organization including, but not limited to a corporation, a water company, an irrigation district, an irrigation company or a canal company, shall be considered a person for the purpose of this section and shall cast its vote by someone to be designated by the corporation or water delivery organization.
Should the meeting not be held, or should the district hydrographer not be elected or the district hydrographer’s compensation not be fixed as above provided, then the director of the department of water resources is authorized to appoint a district hydrographer and fix the district hydrographer’s compensation.
The director of the department of water resources may remove any district hydrographer whenever such district hydrographer fails to perform the district hydrographer’s duty, upon the director’s own motion or upon complaint in that respect being made to the director in writing, by one (1) person owning or having the right to the use of a water right in such district provided, that upon investigation the director, after a hearing with the other appropriators or water users of the district, which shall be held in the district or at some location convenient to the appropriators or water users of the district, finds such charge to be true. If at any time a vacancy occurs, for whatever reason, in the position of district hydrographer, the director may appoint a successor for the unexpired term. (11) Before entering upon the duties of the district hydrographer’s office, the district hydrographer shall take and subscribe an oath before some officer authorized by the laws of the state to administer oaths, to faithfully perform the duties of the district hydrographer’s office, as provided in section 42-709, Idaho Code, and shall file that oath with the department of water resources. Upon qualification and appointment by the director of the department of water resources, the actions taken by a district hydrographer in fulfillment of the duties of his office are covered by the state group surety bond as provided in sections 59-801 through 59-804, Idaho Code.

(12) The director shall call a special meeting of the appropriators or water users of a district upon receipt of a written request for such meeting from a majority of the members of the advisory committee for a district, a written request from appropriators or water users representing thirty percent (30%) or more of the votes cast at the last regular annual meeting, a written request from the district hydrographer or on the director’s own motion if the director determines a meeting is necessary to address matters that cannot be delayed until the next regular annual meeting. Notice of the time, place and purpose of the special meeting shall be given by the director in the manner provided in subsection (2) of this section or by regular mail to all holders of rights to the use of the waters of such district known to the director.

(13) The appropriators or water users may, by resolution, authorize the district hydrographer to acquire, hold and dispose of such real and personal property, equipment and facilities in the name of the water measurement district as necessary for the proper measurement of water and shall provide that all such real and personal property shall remain in the custody of the district hydrographer and the district hydrographer’s successor.

District hydrographers shall prepare an accounting of all expenses of the district for the year. The accounting shall show:
1. The time charged to the district by each employee of the district, the function performed by each employee for the time charged and the cost to the district for the time charged.
2. The cost to the district for each activity of the advisory committee and for each activity a breakdown of the cost by per diem for committee members, travel costs, goods and services, and other costs with a description of the substance of the other costs.
3. The cost to the district for travel and services, except as already included in paragraph (b) of this subsection, and a description of the activity performed for the district for each cost.
4. The cost to the district for all real or personal property, equipment or facilities acquired, and a description and the cost of each.
The accounting shall be submitted to the director of the department of water resources for approval.
The expenses of the district shall be a charge against the water users in the district. The expenses of the district shall be apportioned among all water users included within the district in the following manner:
1. A charge of twenty-five dollars ($25.00) per year for each diversion measured, provided the charge may be up to fifty dollars ($50.00) per year if adopted by resolution approved by vote of the water users at a meeting conducted in accordance with section 42-707, Idaho Code; and
2. A pro rata share of the total expense of the district, minus the total amount charged for all diversions in the district from paragraph (a) of this subsection determined by the fraction the recorded diversion rate for each water right is to the total recorded diversion rate of all water rights being measured by the district.
3. Except, if the total charge for all diversions measured in the district from paragraph (a) of this subsection is more than the total expense of the district, the individual charge for each diversion will be the total expense of the district divided by the number of diversions in the district and the pro rata share from paragraph (b) of this subsection will be zero (0).
An allocation of the district expenses among the various users shall be prepared by the district hydrographer and filed with the director of the department of water resources and with the water measurement district treasurer.

Legislative Intent.

Section 4 of S.L. 1995, ch. 291 read: “Statement of Legislative Intent. It is the intent of the legislature of the State of Idaho that the Director of the Department of Water Resources exercise the authority provided under Chapter 7, Title 42, Idaho Code, to create water measurement districts within the Eastern Snake River Plain Aquifer area in a timely manner to assure that water diverted from public water sources is measured and reported to the Department of Water Resources in accordance with the provisions of the chapter to be used in the management of water resources of the State.”

Effective Dates.

Section 5 of S.L. 1995, ch. 291 declared an emergency. Approved March 21, 1995.

Chapter 8 DISTRIBUTION OF STORED WATER

Sec.

§ 42-801. Conveyance of stored water through natural channel — Appointment of special deputy and assistants.

Whenever the owner of a reservoir shall desire to use the bed of a stream, or a natural water course, for the purpose of carrying stored water, he shall in writing notify the department of water resources, giving the date when it is proposed to discharge the water, its volume in acre feet, and in cubic feet per second at the point of discharge, and the persons and ditches entitled to its use. The department shall then appoint a special deputy, unless a state watermaster has already been appointed to deliver the waters from said stream, in which event the appointed watermaster and his assistants may be instructed to make the delivery of the stored water without further appointment, whose duty it shall be to adjust the headgates of all ditches not entitled to the stored water, and in such manner that those having the right to the use of such water shall secure the volume to which they are entitled. For the purpose of delivering such stored water the deputy appointed by the department of water resources may employ such number of assistants as, with the approval of the department, he may deem necessary. The owner of any reservoir proceeding under the provisions of this section shall pay to the special deputy and to each assistant a salary as determined by the director of the department of water resources, or a salary and expenses as negotiated with the owner of the said stored water and approved by the director of the department of water resources, or pay to the water district, if there is one, a sum based upon the cost of delivering a unit of water. Said charge by the water district will be determined and collected in the same manner as prescribed in chapter 6, title 42, Idaho Code, for compensating the watermaster for delivery of natural flow water.

History.

1909, p. 150, § 1; reen. C.L., § 3282h; C.S., § 5624; I.C.A.,§ 41-701; am. 1980, ch. 277, § 2, p. 721.

CASE NOTES

Constitutional Right.

Dams.

Idaho Const., Art. XV, § 3, providing that right to appropriate unappropriated waters of a natural stream to a beneficial use shall never be denied, applies to right to use of such stream as highway to carry storage water from a reservoir. Twin Falls Canal Co. v. American Falls Reservoir Dist. No. 2, 49 F.2d 632 (D. Idaho 1931), cert. denied, 287 U.S. 638, 53 S. Ct. 87, 77 L. Ed. 552 (1932). Dams.

Where plaintiff constructed a dam which resulted in the backing up of water to height which others could utilize, he could not compel reservoir district, diverting storage water from such stream, to contribute to the initial cost of constructing dam. Twin Falls Canal Co. v. American Falls Reservoir Dist. No. 2, 49 F.2d 632 (D. Idaho 1931), cert. denied, 287 U.S. 638, 53 S. Ct. 87, 77 L. Ed. 552 (1932).

Fluctuating Flow of River.

Right to Use Channel.

Where defendant built a series of dams that increased the flow of a river to such extent that plaintiff’s access to his farm land was obstructed and plaintiff sought to recover damages on the theory that the dams constituted a nuisance, court held that, by statute, defendant and other appropriators of water for lawful purposes had right to use channel of natural streams for carrying stored water or water diverted from other streams. Johnson v. Utah Power & Light Co., 215 F.2d 814 (9th Cir. 1954).

§ 42-802. Conveyance of stored water — Penalty for interference — Duty of special deputy.

After the special deputy and his assistants shall have adjusted the headgates of all ditches, the owners of which are not entitled to the use of such stored water as provided in the preceding section and before such stored water shall have passed the headgates so adjusted, any person who shall raise or tamper with any such headgate in such manner as to misappropriate any portion of such water to his own use and benefit whether he be the owner of such headgate or not, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than $100 together with imprisonment in the county jail for ten (10) days; and not more than $2000 or by imprisonment in the county jail not to exceed six (6) months, or by both such fine and imprisonment.

Whenever the special deputy or any assistant shall discover any person in the act of committing a misdemeanor declared in this section, he shall arrest such person and turn him over to the sheriff of the county in which the misdemeanor was committed and he shall also file with the county attorney of such county an affidavit setting out the facts with reference to the commission of such misdemeanor.

History.

1909, p. 150, § 2; reen. C.L., § 3282i; C.S., § 5625; am. 1921, ch. 133, § 1, p. 320; I.C.A.,§ 41-702.

Chapter 9 DISTRIBUTION OF WATER TO CONSUMERS

Sec.

§ 42-901. Appointment of watermaster — Appointment by court.

It shall be the duty of those owning or controlling any ditch, canal or lateral to appoint a superintendent or watermaster, whose duty it shall be to measure the water from such ditch, canal or lateral through the outlet of those entitled thereto, according to his or her pro rata share: provided, that any vicinity or neighborhood, the inhabitants of which use the waters of any ditch, canal or lateral for the purpose of irrigation, or have or claim a common right to the waters of any ditch or lateral for such purposes, provided the waters so claimed or used have not been allotted to the individual users thereof, shall constitute a water district.

Any one or more of said joint owners so using the water of any ditch, canal or lateral as aforesaid, when the appointment of a watermaster can not be agreed upon, may petition the judge of the district court in whose district the ditch, canal or lateral may be located for the appointment of a watermaster for said ditch, canal or lateral, and shall set forth in said petition the facts of his or her ownership in said ditch, canal or lateral; the ownership and interest of all other joint owners; the location and length of said ditch, canal or lateral, and requesting said district court to appoint a watermaster to take charge of the same. Upon due notice being given to all of the water users under said ditch, canal or lateral, and after hearing before said court, it shall be the duty of the judge of said district court if he deem it necessary or equitable in order that the rights of all water users under said ditch, canal or lateral may be protected, to appoint a watermaster for the ditch, canal or lateral described in the petition. Said watermaster to receive such compensation as the court in his judgment may deem adequate, and shall be paid in the same manner as is provided for the payment of watermasters under chapter 5 [6] of this title, and shall perform the same duties and have the same power and authority as other watermasters appointed or elected in accordance with the provisions of this code.

History.

1899, p. 380, § 17; reen. R.C., § 3284; am. 1909, p. 104, § 1; reen. C.L., § 3284; C.S., § 5626; I.C.A.,§ 41-801.

STATUTORY NOTES

Cross References.

Election of watermaster in water districts,§ 42-605.

Fish and game laws, arrest of violators authorized,§ 36-1301.

Compiler’s Notes.

The bracketed number “6” near the end of the section was inserted by the compiler to correct the statutory reference.

CASE NOTES

Cited

Walbridge v. Robinson, 22 Idaho 236, 125 P. 812 (1912); Brunzell v. Stephenson, 30 Idaho 202, 164 P. 89 (1917).

§ 42-902. Injuring ditch or headgate — Triple damages.

Any person who, without the consent of the watermaster of the district, diverts any water from the ditch or channel where it was placed, or caused, or left to run by the watermaster or his deputies, or who shuts or opens any ditch, gate or dam with intent so to divert any water, and thereby deprive any person of the use of the same during any part of the time he is entitled to such use, or who, without the consent of the watermaster, cuts any ditch or the banks thereof, or breaks or destroys any gate or flume, is liable in a civil action to any person injured thereby in three times the actual damage sustained in consequence of any such wrongful act or acts.

History.

1880, p. 273, § 6; R.S., § 3205; am. R.C. & C.L., § 3285; C.S., § 5627; I.C.A.,§ 41-802.

CASE NOTES

Construction.

Phrase “cuts any ditch or the banks thereof”, as contemplated in this section, means cutting through the bank of the ditch; hence, because landowners did not cut into the irrigation district’s lateral, which ran in an easement over the landowners’ property, the district was not entitled to treble damages for the landowners’ interference with the easement. Nampa & Meridian Irrigation Dist. v. Mussell, 139 Idaho 28, 72 P.3d 868 (2003).

Because the treble damage award provided in this section is intended as a penalty, the statute must be strictly construed. Nampa & Meridian Irrigation Dist. v. Mussell, 139 Idaho 28, 72 P.3d 868 (2003).

§ 42-903. Headgates and measuring devices — Water companies to furnish.

Any person, association or corporation delivering or distributing water under any fixed annual charge or rental shall provide the necessary gates and measuring devices to render possible and practicable a measurement of the quantity of water being delivered to any consumer (or number of consumers using a common lateral or distributing ditch); and the price charged for the annual use of the water so distributed shall be in proportion to the quantity of water delivered from the works of such person, association or corporation. Such measuring devices shall be of such a character, and provided with such gauges or scales, that the quantity of water being delivered at any time can be ascertained by inspection; and shall be of such general plan as shall meet with the approval of the department of water resources, which shall inspect any such devices whenever possible to ascertain their character, and the department shall furnish such general information and instructions to any consumer, or the watermaster of any number of consumers of water, as may be necessary to enable him to ascertain the quantity of water flowing through any such measuring device.

History.

1897, p. 127, § 2; compiled R.C. & C.L., § 3286; C.S., § 5628; I.C.A.,§ 41-803.

STATUTORY NOTES

Cross References.

Appropriators and users of public waters to maintain headgates and measuring devices,§ 42-701.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

CASE NOTES

Cited

Johnson v. Strong Arm Reservoir Irrigation Dist., 82 Idaho 478, 356 P.2d 67 (1960); Savage Lateral Ditch Water Users Ass’n v. Pulley, 125 Idaho 237, 869 P.2d 554 (1994).

§ 42-904. Division of land into classes by priority.

When any ditch, canal or reservoir delivering or distributing water to several users has one or more rights or priorities by reason of enlargements made from time to time, the right of the land being irrigated by such works shall be divided into classes; rights of the first class belonging to those lands reclaimed between the dates of the first and second priorities or rights of such works; rights of the second class belonging to those lands reclaimed between the dates of the second and third priorities of such works; rights of any other class being determined in like manner; but all the rights belonging to the same class shall be equal and subject alike to the regulations of their respective class.

History.

1901, p. 191, § 9a; reen. R.C. & C.L., § 3287; C.S., § 5629; I.C.A.,§ 41-804.

CASE NOTES

Classification by Board.

Board must classify land as the best it can under such evidence it has or may be able to obtain and in accordance with law. Brose v. Board of Dirs., 24 Idaho 116, 132 P. 799 (1913).

Constitutionality.

This section does not contraveneIdaho Const., Art. V, §§ 3, 5. Brose v. Board of Dirs., 20 Idaho 281, 118 P. 504 (1911).

Effect on Rights of Water Users.

Any classification made by irrigation company under provisions of this section could in no way affect or control question of priorities between users, and in no way prohibited or limited any user of water in having question of priority between users settled and adjudicated in proper court of state. Brose v. Board of Dirs., 20 Idaho 281, 118 P. 504 (1911).

Canal company was not given right to ultimately decide question of priority as between water users as that power remains with court, and adjustment of land into classes was not permanent unless water users decided so. Brose v. Board of Dirs., 24 Idaho 116, 132 P. 799 (1913).

Judicial Determination of Priority.

Priority in Use.

A decree determining the priority of use of water in an irrigation canal did not affect appropriators who were not made parties thereto. Scott v. Nampa Meridian Irrigation Dist., 55 Idaho 672, 45 P.2d 1062 (1934). Priority in Use.

As between the various classes of users, their rights would appear to be governed by the doctrine that priority in use, or first in time of use, gives superiority of right under the statutory system of distribution governing irrigation districts. Scott v. Nampa Meridian Irrigation Dist., 55 Idaho 672, 45 P.2d 1062 (1934).

Where the owners of the original lands of an irrigation district had acquired and, for many years, applied to the irrigation of their lands valuable water rights which had become appurtenant and dedicated to their lands and which were held in trust by the district for their use, they could not, without their consent, upon the annexation of new lands to the district, be deprived of that water when needed to irrigate their lands. Bradshaw v. Milner Low Lift Irrigation Dist., 85 Idaho 528, 381 P.2d 440 (1963).

Cited

Bradshaw v. Milner Low Lift Irrigation Dist., 85 Idaho 528, 381 P.2d 440 (1963).

RESEARCH REFERENCES

C.J.S.

§ 42-905. Point of delivery.

Any person, association or corporation which may contract to deliver a certain quantity of water to any party or parties, shall deliver the same to such party or parties, together with a reasonable and necessary allowance for loss by evaporation and seepage, at some convenient point on the main ditch, canal or reservoir of said person, association or corporation, or on any branch or lateral thereof belonging to the owner or owners of such ditch, canal or reservoir.

History.

1895, p. 174, part of § 17; reen. R.C. & C.L., § 3288; C.S., § 5630; I.C.A.,§ 41-805.

STATUTORY NOTES

Cross References.

Duties of consumers,§§ 42-907, 42-908.

CASE NOTES

Community Ditch.

There is no law making company furnishing water responsible for its distribution among users through community ditch and thus when it has turned into such ditch aggregate amount of water required, its responsibility is ended. Preis v. Idaho Irrigation Co., 37 Idaho 109, 215 P. 466 (1923).

Construction.

This and following sections clearly authorize parties to contract with reference to delivery of water from reservoir or canal and to fix and determine amount to be charged as an annual maintenance fee therefor. Jackson v. Indian Creek Reservoir Ditch & Irrigation Co., 16 Idaho 430, 101 P. 814 (1909).

A company may use canal it does not own, provided it has a lawful right to use it. Dukes v. Canyon Hill Ditch Co., 38 Idaho 696, 224 P. 85 (1924).

Duty of Canal Company.

Rights of Water Users.

It was the duty of canal company to keep its ditches and canals in repair and to turn water for consumer out of its main canal or lateral at such place as would be most convenient for consumer and cause least waste by seepage and evaporation. Niday v. Barker, 16 Idaho 73, 101 P. 254 (1909). Rights of Water Users.

Water users were entitled to organize and provide for transfer of management of laterals owned by them to a ditch company pursuant to a unilateral agreement signed by the majority of the water users. Hale v. McCammon Ditch Co., 72 Idaho 478, 244 P.2d 151 (1951).

§ 42-906. Amount and lien of rental or maintenance.

The amount to be paid by said party or parties for the delivery of said water, which amount may be fixed by contract, or may be as provided by law, is a first lien upon the land for the irrigation of which said water is furnished and delivered. But if the title to said tract of land is in the United States or the state of Idaho, then the said amount shall be a first lien upon any crop or crops which may be raised upon said tract of land, which said lien shall be recorded and collected as provided by law for other liens in this state. And any mortgage or other lien upon such tracts of land that may hereafter be given shall in all cases be subject to the lien for price of water as provided in this section.

History.

1895, p. 174, part of § 17; reen. R.C., § 3288; reen. C.L., § 3288a; C.S., § 5631; I.C.A.,§ 41-806.

STATUTORY NOTES

Cross References.

Land mortgaged to secure state endowment funds,§ 43-2007.

CASE NOTES

Alternative Remedy.

For user’s default in payment of maintenance, water company may have proceeded either under this section or under§ 42-101. Adams v. Twin Falls-Oakley Land & Water Co., 29 Idaho 357, 161 P. 322 (1916); Blaine County Canal Co. v. Hansen, 49 Idaho 649, 292 P. 240 (1930).

Construction.

This section clearly authorizes parties to contract with reference to the delivery of water and to fix and determine amount to be charged as an annual maintenance fee therefor. Jackson v. Indian Creek Reservoir Ditch & Irrigation Co., 16 Idaho 430, 101 P. 814 (1909).

Maintenance Charges.

Preferential Rate.

Maintenance charges may be recovered in action in quantum meruit. Blaine County Canal Co. v. Hansen, 49 Idaho 649, 292 P. 240 (1930). Preferential Rate.

Canal company, not a common carrier, may allow a valid preferential maintenance rate. Nampa & Meridian Irrigation Dist. v. Briggs, 27 Idaho 84, 147 P. 75 (1915).

Unpaid Assessments.

This section provides remedy for unpaid assessments by foreclosure of lien on premises as this furnishes ample protection and works no injustice to user of water. Reynolds v. North Side Canal Co., 36 Idaho 622, 213 P. 344 (1923).

Cited

Portneuf-Marsh Valley Canal Co. v. Brown, 274 U.S. 630, 47 S. Ct. 692, 71 L. Ed. 1243 (1927).

§ 42-907. Duties of consumers — Appointment of manager of distributing lateral.

Where two (2) or more parties take water from said ditch, canal or reservoir at the same point, to be conveyed to their respective premises for any distance through the same lateral or distributing ditch, such parties shall, on or before April first of each year, select some person to have charge during the succeeding season of the distribution of water from such lateral, whose duty it shall be to ascertain and see that the amount of water to which each of the parties interested is entitled is properly apportioned and distributed. It shall be his further duty to see that the said person, association or corporation, contracting to furnish such water shall deliver the amount as provided in section 42-905[, Idaho Code], and in case of dispute between such person and the said person, association or corporation as to the quantity of water to be delivered, or the amount actually delivered, the matter shall be referred to the department of water resources. The parties entitled to said water shall keep their ditches and laterals in good condition for carrying and distributing the same. In case the parties entitled to the use of water as in this section stated shall neglect or refuse to perform the duties imposed upon them by this section, they shall have no cause for damage against the person, association or corporation furnishing said water for failure to properly furnish and distribute the same.

History.

1895, p. 174, part of § 17; reen. R.C. § 3288; reen. C.L., § 3288b; C.S., § 5632; I.C.A.,§ 41-807.

STATUTORY NOTES

Cross References.

Appointment by district watermaster or directors of irrigation district,§ 42-909.

Duties of manager,§ 42-910.

Compiler’s Notes.

The bracketed insertion in the second sentence was added by the compiler to conform to the statutory citation style.

CASE NOTES

Construction.

Viewing provisions of this section in connection with other sections of chapter, it would seem that purpose of legislature was simply to provide means of insuring equitable distribution of water received through community ditch and enforcing payment by each user of his part of expenses necessarily incurred. Preis v. Idaho Irrigation Co., 37 Idaho 109, 215 P. 466 (1923).

Where water users fail to select watermaster, company was not liable for unfair distribution of water from community ditch, although it had not delivered the full amount of water contracted for. Preis v. Idaho Irrigation Co., 37 Idaho 109, 215 P. 466 (1923).

Construction of Prior Decree.

Since this statute was enacted subsequent to decree as to water rights, it could not be considered as controlling in construing that decree, and the decree should have been construed in the light of the facts in the case and the law as it existed when the decree was entered. Anderson v. Dewey, 82 Idaho 173, 350 P.2d 734 (1960).

Costs of Repair and Maintenance.

If the servient estate landowner’s use of irrigation ditch had increased the cost of repairs and maintenance, he would have been responsible for the additional costs; but since his use did not increase those costs, he had no obligation to pay for any portion of those costs. Sellers v. Powell, 120 Idaho 250, 815 P.2d 448 (1991).

Effect of Failure to Appoint.

Failure of plaintiff to select watermaster for ditches used by himself and others jointly was not ground upon which motion for nonsuit could be sustained in action against water company for failure to deliver water. Preis v. Idaho Irrigation Co., 37 Idaho 109, 215 P. 466 (1923); Meservy v. Idaho Irrigation Co., 37 Idaho 227, 217 P. 595 (1923).

Nature of Office.

Manager of distributing lateral is not public officer in any sense of term. He gives no bond and takes no oath, nor is he paid from public treasury. Carter v. Niday, 46 Idaho 505, 269 P. 91 (1928).

Rights of Water Users.

§ 42-908. Manager of distributing lateral — Alternative method of selection.

Wherever two or more persons take water from any main ditch, canal or reservoir, at the same point, to be conveyed to their respective premises for any distance through the same lateral or distributing ditch, as provided in section 42-905[, Idaho Code], the person to be selected by such parties on or before April first of each year, as provided in section 42-907[, Idaho Code], may be selected and appointed by a written instrument designating such person, signed by the majority of such persons so using the said ditch for their said water, and filed with the watermaster or other managing agent or director of such main canal, ditch or reservoir.

History.

1909, p. 108, § 1; reen. C.L., § 3288c; C.S., § 5633; I.C.A.,§ 41-808.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertions were added in two places by the compiler to conform to the statutory citation style.

CASE NOTES

Water Decree Prior to Statute.

Since this statute was enacted subsequent to decree as to water rights, it could not be considered as controlling in construing that decree, as the decree is to be construed in light of the facts in the case and the law as it existed when the decree was entered. Anderson v. Dewey, 82 Idaho 173, 350 P.2d 734 (1960).

Cited

Hale v. McCammon Ditch Co., 72 Idaho 478, 244 P.2d 151 (1951).

§ 42-909. Manager of distributing lateral — Appointment by district watermaster — By directors of irrigation district — Payment of compensation.

If two (2) or more parties taking water from any main ditch, canal or reservoir at the same point to be conveyed to their respective premises for any distance, through the same lateral or distributing ditch, do not select a manager for said lateral, as provided in section 42-907[, Idaho Code,] or section 42-908[, Idaho Code], the watermaster of the water district, shall on the written demand of any one or more of said parties, appoint a manager for said lateral, who shall have and exercise all the powers and perform all of the duties of a manager of the distributing lateral as provided in section 42-910[, Idaho Code]: provided, that if an irrigation district is owner of the main ditch, canal or reservoir, then the board of directors of such district shall, upon such demand, make such appointment.

The compensation of said manager shall be fixed by said watermaster, and shall be paid in the manner provided by section 42-910[, Idaho Code,] for the payment of expenses incurred by him. If not paid, it may be collected, with other damages in the action provided by said section: provided, that if an irrigation district is the owner of the main ditch, canal or reservoir, the board of directors of such district shall fix the compensation of said manager; and at the end of the irrigation season upon the request of such manager the secretary of such district shall prorate the amount of such compensation among the several parties taking water through such lateral, or distributing ditch upon the basis of the number of acres irrigated by each, and mail each a statement of the amount prorated to such party, requesting that remittance be made to such secretary for and on behalf of such manager. In the event such parties or either of them, not later than the date when irrigation district assessments are delinquent, remit to such secretary, he shall, upon receiving same, and without making any entry in his books of account, deliver it to such manager. Should such parties or either of them fail or refuse at such time to remit to said secretary, then such manager may collect as hereinbefore provided.

History.

C.S., § 5633-A, as added by 1925, ch. 99, § 1, p. 144; am. 1929, ch. 45, § 1, p. 57; am. 1931, ch. 62, § 1, p. 105; I.C.A.,§ 41-809.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertions throughout this section were added by the compiler to conform to the statutory citation style.

CASE NOTES

Cited

Cronwall v. Talboy, 45 Idaho 459, 262 P. 871 (1928); Hale v. McCammon Ditch Co., 72 Idaho 478, 244 P.2d 151 (1951).

§ 42-910. Duties of manager of distributing lateral — Assessment of repair and maintenance costs — Appeals.

Such person shall be known as the manager of such distributing lateral for the season for which he is selected, and in addition to the powers granted to him by section 42-907[, Idaho Code,] he shall have power to require of each user of such lateral such user’s proportion of the amount of labor, material or money reasonably necessary for the proper repair and maintenance of such lateral, and to require measuring weirs, head-gates and checks to be installed for distributing the water among the users, and each user of such lateral shall furnish his proportion of such labor, material or money upon three days’ notice so to do, and, in default of so doing, such manager may employ other labor in his place, or furnish the material or money necessary, and such user shall pay to the manager the reasonable value of such material or labor so furnished by the manager, upon demand, in case of default in payment by such user the said manager may sue and collect the same in any court of competent jurisdiction, and in addition to all costs, the court shall allow said manager his reasonable attorney’s fees incurred in that behalf.

History.

1909, p. 108, § 2; reen. C.L., § 3288d; C.S., § 5634; I.C.A.,§ 41-810; am. 1939, ch. 213, § 1, p. 435.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion near the beginning of the first paragraph was added by the compiler to conform to the statutory citation style.

CASE NOTES

Attorney’s Fees.

In order to recover attorney’s fees in action by watermaster against users of system, it was necessary to allege and prove three days’ verbal notice or service of written demand to contribute his proportion for maintenance and subsequent failure to comply. Carter v. Niday, 46 Idaho 505, 269 P. 91 (1928).

Expenses and Salary.

Legislature intended that cost of repairs and maintenance should be borne by water users individually without recourse to any public fund and watermaster’s salary should be paid in same way. Carter v. Niday, 46 Idaho 505, 269 P. 91 (1928).

Legislative Purpose.

Purpose of legislature was simply to provide means of insuring an equitable distribution of water received through community ditch, apportioning expense of operating and maintaining such community ditch and enforcing payment by each user of his part of expenses necessarily incurred. Preis v. Idaho Irrigation Co., 37 Idaho 109, 215 P. 466 (1923).

Set-off.

In action by watermaster for failure of user to contribute for maintenance, such water user could not set off against claim, expenses and damages incurred in maintaining mandamus proceedings to protect his rights as such damages should have been recovered in mandamus proceeding and could not be litigated in collateral action. Carter v. Niday, 46 Idaho 505, 269 P. 91 (1928).

§ 42-911. Users of water defined.

The term “users of water” from a community ditch shall be understood to include the owner of the land on which the water is used, or any tenant or other person in possession and control of said premises.

History.

1909, p. 108, § 3; reen. C.L., § 3288e; C.S., § 5635; I.C.A.,§ 41-811.

§ 42-912. Company to furnish water on demand.

Any person, company or corporation owning or controlling any canal or irrigation works for the distribution of water under a sale or rental thereof, shall furnish water to any person or persons owning or controlling any land under such canal or irrigation works for the purpose of irrigating such land or for domestic purposes, upon a proper demand being made and reasonable security being given for the payment thereof: provided, that no person, company or corporation shall contract to deliver more water than such person, company or corporation has a title to, by reason of having complied with the laws in regard to the appropriation of the public waters of this state.

History.

1899, p. 380, § 19; reen. R.C. & C.L., § 3289; C.S., § 5636; I.C.A.,§ 41-812.

STATUTORY NOTES

Cross References.

Penalty for neglect to deliver water,§ 18-4310.

CASE NOTES

Action for Damages.

Water user makes prima facie case by proving contract and failure in delivery of water according to its terms, together with damages resulting to his crops and it is incumbent upon water company to prove failure of water supply on account of extraordinary drought and that it delivered to user his just proportion of water supply which it had. Tapper v. Idaho Irrigation Co., 36 Idaho 78, 210 P. 591 (1922); Preis v. Idaho Irrigation Co., 37 Idaho 109, 215 P. 466 (1923).

Action to Compel Delivery.

Applicant for use of water who had complied with provisions of this act and who was refused water, although company had sufficient unsold water to supply him, was entitled to writ of mandamus to compel delivery of water. Bardsly v. Boise City Irrigation & Land Co., 8 Idaho 155, 67 P. 428 (1901). Complaint must allege demand and must tender compensation or security for payment of charges for delivery, and it was insufficient to allege that plaintiff offered to secure payment of such charges. Bardsly v. Boise City Irrigation & Land Co., 8 Idaho 155, 67 P. 428 (1901).

Applicability.

This section was inapplicable to defendant’s distribution of water to certain subdivision lot owners, as defendant was not a person, company, or corporation owning or controlling any canal or irrigation works for the distribution of water. Therefore, the district court erred by stating in its findings and conclusions that plaintiffs were entitled to have defendant furnish water to plaintiffs’ property under this section. Mullinix v. Killgore’s Salmon River Fruit Co., 158 Idaho 269, 346 P.3d 286 (2015).

Construction.

This section does not provide its own penalty for violations. Sanderson v. Salmon River Canal Co., 34 Idaho 303, 200 P. 341 (1921), appeal dismissed, 260 U.S. 755, 43 S. Ct. 94, 67 L. Ed. 497 (1922).

Estoppel.

State, in dealing with Carey Act project, acts by virtue of its sovereignty and not in capacity of private owner, and doctrine of estoppel cannot be invoked against it but this does not apply to individual contract holders who, having obtained rights under contract providing that there shall be no priorities among them, are estopped to claim priorities as against each other. Sanderson v. Salmon River Canal Co., 34 Idaho 303, 200 P. 341 (1921), appeal dismissed, 260 U.S. 755, 43 S. Ct. 94, 67 L. Ed. 497 (1922).

Illegal Contracts.

Contracts whereby irrigation company agreed to furnish more water than it had ability to furnish were illegal. Gerber v. Nampa & Meridian Irrigation Dist., 16 Idaho 1, 100 P. 80 (1908).

Where party was entitled to water from ditch company and did everything that the constitution and laws of the state required him to do in order to get it, water company was bound to deliver him water and could not require him to sign a special contract binding him to do things which the law did not require him to do in order to get the water. Green v. Byers, 16 Idaho 178, 101 P. 79 (1909).

Under this section any water company or corporation is forbidden to contract or sell more water than it is entitled to and must not sell more water than it has. State v. Twin Falls Salmon River Land & Water Co., 30 Idaho 41, 166 P. 220 (1916).

Provision in contract that no water should be delivered to purchaser while he is in default as to any toll or assessment was invalid and void as to tolls and assessments for preceding year, but valid as to such charges for current year. Parrot v. Twin Falls Salmon River Land & Water Co., 32 Idaho 759, 188 P. 451 (1920).

Limit on Sale of Water.

Carey Act company could not sell water rights it did not have. Idaho Irrigation Co. v. Gooding, 265 U.S. 518, 44 S. Ct. 618, 68 L. Ed. 1157 (1924). State land board was without authority to authorize construction company to sell indefinite fractional water right to settlers under Carey Act project, but was required to limit such sales to amount of water available from company’s appropriation, which could be seasonably delivered by proposed system. State v. Twin Falls Land & Water Co., 37 Idaho 73, 217 P. 252 (1923).

Priorities.

All settlers who purchase water rights and apply water to land shall be in same class without priorities among themselves. Sanderson v. Salmon River Canal Co., 34 Idaho 303, 200 P. 341 (1921), appeal dismissed, 260 U.S. 755, 43 S. Ct. 94, 67 L. Ed. 497 (1922).

Rights and Remedies of Water Company.

Carey Act company furnishing all water good husbandry required could foreclose liens therefor, although it had not furnished the full amount of water contracted for. Sallee v. Commonwealth Trust Co., 8 F.2d 227 (9th Cir. 1925).

This section did not repeal§ 42-1206, and water company which delivered water to consumer without demanding prepayment of charges therefor may sue at law to recover amount of such charges already earned by it, but cannot shut off consumer’s water because he refused to make payment. Shelby v. Farmers Coop. Ditch Co., 10 Idaho 723, 80 P. 222 (1905).

Company may require persons claiming water to pay or give security for payment of maintenance assessments in advance of furnishing water. Reynolds v. North Side Canal Co., 36 Idaho 622, 213 P. 344 (1923).

Writ of Mandamus.

Writ of mandamus would not issue to compel Carey Act company to issue shares where shares of stock already sold were in excess of available water supply and contract between company and state was entered into under mutual mistake of material fact. State v. Twin Falls Salmon River Land & Water Co., 30 Idaho 41, 166 P. 220 (1916); Sanderson v. Salmon River Canal Co., 34 Idaho 303, 200 P. 341 (1921), appeal dismissed, 260 U.S. 755, 43 S. Ct. 94, 67 L. Ed. 497 (1922).

§ 42-913. Application for water.

Any person or persons owning or controlling land which has or has not been irrigated from any such canal, shall on or before January first of any year, inform the owner or person in control of such canal whether or not he desires the water from said canal for the irrigation of land during the succeeding season, stating also the quantity of water needed. In distributing water from any such canal, ditch or conduit during any season, preference shall be given to those applications for water for land irrigated from said canal the preceding season, and a surplus of water, if any there be, shall be distributed to the lands in the numerical order of the applications for it. But no demand for the purchase of a so called perpetual water right, or any contract fixing the annual charges or the quantity of water to be used per acre, shall be imposed as a condition precedent to the delivery of water annually as provided in this chapter; but the consumer of water shall be the judge of the amount and the duty of the water required for the irrigation of his land; and the annual charges to be made and to be fixed under the further provisions of this title, shall hereafter be based upon the quantity of water delivered to consumers, and shall not in any case depend upon the number of acres irrigated by means of such amount of water delivered.

History.

1899, p. 380, § 20; reen. R.C. & C.L., § 3290; C.S., § 5637; I.C.A.,§ 41-813.

CASE NOTES

Application of Section.

This section had no application to case where all prior applications for water had been supplied and ditch company still had water for rental and distribution, and in such case applicant could have enforced delivery of water, although he did not make his application prior to January 1. Helphery v. Perrault, 12 Idaho 451, 86 P. 417 (1906).

Cited

Bardsly v. Boise City Irrigation & Land Co., 8 Idaho 155, 67 P. 428 (1901).

§ 42-914. Sale or rental constitutes a dedication — Domestic purposes construed — Liability for violation.

Whenever any waters have been or shall be appropriated or used for agricultural or domestic purposes under a sale, rental or distribution thereof, such sale, rental or distribution shall be deemed an exclusive dedication to such use upon the tract of land for which such appropriation or use has been secured, and, whenever such waters so dedicated shall have once been sold, rented or distributed to any person who has settled upon or improved land for agricultural purposes with the view of receiving the benefit of such water under such dedication, such person, his heirs, executors, administrators, successors or assigns, shall not thereafter be deprived of the annual use of the same when needed for agricultural or domestic purposes upon the tract of land for which such appropriation or use has been secured, or to irrigate the land so settled upon or improved, upon payment therefor, and compliance with such equitable terms and conditions as to the quantity used and times of use as may be prescribed by law. “Domestic purposes” shall not be construed to include any manner of land irrigation. Any person, association or corporation violating any of the provisions of this section, shall be liable for all damage to any party or parties injured thereby, which damage shall be determined by the proper court.

History.

1895, p. 174, § 14; reen. R.C. & C.L., § 3291; C.S., § 5638; I.C.A.,§ 41-814.

STATUTORY NOTES

Cross References.

Domestic purposes defined,§ 42-111.

Continuing rights to water guaranteed, Idaho Const., Art. XV, § 4.

CASE NOTES

Delivery Outside District.

Determination of Conditions of Use.

Delivery of water outside irrigation district, when same was not needed by users within district, was not a dedication and did not confer vested right in owner outside district. Yaden v. Gem Irrigation Dist., 37 Idaho 300, 216 P. 250 (1923). Determination of Conditions of Use.

Terms and conditions upon which a person is entitled to use of water from ditch or canal company are to be determined by courts. Wilterding v. Green, 4 Idaho 773, 45 P. 134 (1896).

Enlargement of District.

United States Party to Adjudication Action.

Where the United States was interested in a contract with an irrigation district and such district brought an action for an adjudication of its water rights, which were affected by said contract, the United States was an indispensable party to such suit and this was true notwithstanding the fact that the secretary of the interior was made a party, and that the contract in question was made and executed through and by him and neither was the situation changed by the fact that there had been a prior decree of the state court adjudicating such rights wherein the secretary was a party defendant. American Falls Reservoir Dist. No. 2 v. Crandall, 82 F.2d 973, modified on other grounds, 85 F.2d 864 (9th Cir. 1936).

§ 42-915. Consumer’s title not affected by transfer of ditch.

When any payment is made under the terms of a contract, by means of which payment a perpetual right to the use of water necessary to irrigate a certain tract of land is secured, said water right shall forever remain a part of said tract of land, and the title to the use of said water can never be affected in any way by any subsequent transfer of the canal or ditch property or by any foreclosure or any bond, mortgage or other lien thereon; but the owner of said tract of land, his heirs or assigns, shall forever be entitled to the use of the water necessary to properly irrigate the same, by complying with such reasonable regulations as may be agreed upon, or as may from time to time be imposed by law. And said payment for said water right shall be a release of any bond or mortgage upon the canal property of the person or company from whom such right is purchased or their successors or assigns, to the amount of such water right thus purchased and paid for, and said person or company from whom such water right is purchased shall furnish to the party or parties purchasing such right a release, or a good and sufficient bond for a release, from said mortgage or bonded indebtedness to the amount of the water right thus purchased.

History.

1895, p. 174, § 16; reen. R.C. & C.L., § 3292; C.S., § 5639; I.C.A.,§ 41-815.

CASE NOTES

Beneficial Use.

Construction.

Mortgage Foreclosure.

This section was intended to apply to such water rights as are described in Idaho Const., Art. XV, § 4, that is, a water right only where there has been an actual application of water to land for a beneficial use. Hewitt v. Great W. Beet Sugar Co., 20 Idaho 235, 118 P. 296 (1911). Mortgage Foreclosure.

Upon purchase and payment of permanent water right, such water right thereafter was in no way affected by the lien of any mortgage given by company from whom such water right was purchased, or by any foreclosure of any such mortgage, whether given before or after the sale of such water right. Hewitt v. Great W. Beet Sugar Co., 20 Idaho 235, 118 P. 296 (1911).

Cited

Brown v. Portneuf-Marsh Valley Irrigation Co., 299 F. 338 (D. Idaho 1924).

§ 42-916. Liability for waste of water.

No person entitled to the use of water from any such ditch or canal, must, under any circumstances, use more water than good husbandry requires for the crop or crops that he cultivates; and any person using an excess of water, is liable to the owner of such ditch or canal for the value of such excess; and in addition thereto, is liable for all damages sustained by any other person, who would have been entitled to the use of such excess water, as fixed by this section.

History.

1880, p. 267, § 19; R.S., § 3190; reen. R.C. & C.L., § 3293; C.S., § 5640; I.C.A.,§ 41-816.

CASE NOTES

Law a Part of Contracts.

By reading this section into a water contract, water user is entitled to receive amount of water specified in his contract to the extent necessary to irrigate the crop or crops which he cultivates in accordance with the usages of good husbandry, but he is not entitled to receive a greater amount than is necessary to irrigate his crops, nor, in any event, a greater amount than that specified in the contract. State v. Twin Falls Salmon River Land & Water Co., 30 Idaho 41, 166 P. 220 (1916).

Provision that water user must not use more water than good husbandry requires is read into Carey Act contracts. Idaho Irrigation Co. v. Gooding, 265 U.S. 518, 44 S. Ct. 618, 68 L. Ed. 1157 (1924); Sallee v. Commonwealth Trust Co., 8 F.2d 227 (9th Cir. 1925).

Public Policy.

Duty of careful and economical use of water is one that by statute as well as public policy is imposed upon every water user. State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039 (1911), error dismissed, 235 U.S. 690, 35 S. Ct. 205, 59 L. Ed. 427 (1914).

It is against the public policy of state, as well as against express enactments, for a water user to take more of the water to which he is entitled than is necessary for the beneficial use for which he has appropriated it. Glavin v. Salmon River Canal Co., 44 Idaho 583, 258 P. 532 (1927).

Since it is the policy of the law of Idaho to prevent the wasting of water, at such times during the irrigation season as water is not being used and beneficially applied, other users are entitled to use and beneficially apply such water. Knutson v. Huggins, 62 Idaho 662, 115 P.2d 421 (1941).

Waste Water.

Where an excess amount of water must be diverted and utilized in order to sufficiently and economically irrigate land, the excess so diverted is not waste within meaning of this section and§ 18-4117 (repealed), since what constitutes a reasonable use of water is a question of fact and depends upon the circumstances of each case. Beasley v. Engstrom, 31 Idaho 14, 168 P. 1145 (1917).

Appropriator of waste water cannot require the owner of the water right to continue to waste the water for the benefit of the appropriator. Colthorp v. Mountain Home Irrigation Dist., 66 Idaho 173, 157 P.2d 1005 (1945).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

Chapter 10 FIXING WATER RATES

Sec.

§ 42-1001. Application to county commissioners.

The county commissioners of each county now organized, and of each county to be hereafter organized in this state, shall, at their regular session in January of each year and at such other sessions as they in their discretion may deem proper, hear and consider all applications which may be made to them by any party or parties interested in either furnishing or delivering for compensation, or by any person or persons using or consuming, water for irrigation or other beneficial purpose or purposes from any ditch, canal or conduit, the whole or any part of which shall be in such county, which application shall be supported by such affidavit as the applicant or applicants may present, showing reasonable cause for such board of county commissioners to proceed to fix a maximum rate of compensation for water thereafter delivered from such ditch, canal or conduit within such county: provided, that when any ditch, canal or conduit shall extend into two (2) or more counties, the county commissioners of each of such counties shall fix the maximum rate for water used in that county.

History.

1899, p. 380, § 26; reen. R.C. & C.L., § 3294; C.S., § 5641; I.C.A.,§ 41-901.

STATUTORY NOTES

Cross References.

Manner in which reasonable maximum rates for water use may be established, Idaho Const., Art. XV, § 6.

CASE NOTES

Change of Rates.

Rate, adjudged reasonable, must be presumed to have remained reasonable until such time as such rate is changed in conformity with the statute. Green v. Jones, 22 Idaho 560, 126 P. 1051 (1912).

At any time after expiration of one year from the time rates were established any party in interest may petition board to fix a new rate. Green v. Jones, 22 Idaho 560, 126 P. 1051 (1912).

Laborers.

Rates Fixed by Contract.

Laborers tending and maintaining water canals and reservoirs were agricultural workers for purposes of unemployment compensation act. Big Wood Canal Co. v. Unemployment Comp. Div., 61 Idaho 252, 100 P.2d 49 (1940). Rates Fixed by Contract.

Private contracts granting water rights at fixed prices entered into prior to act of March 7, 1895 (1895, p. 174), first legislation providing for fixing rates, were not affected by such act or subsequent legislation. Boise City Irrigation & Land Co. v. Turner, 176 F. 373 (C.C.D. Idaho 1905).

While county commissioners are authorized by this section to fix water rates, legislature has by§ 42-905 also authorized parties to enter into a contract with reference to rate to be charged and such contract, when made before commissioners have established any rates, will be enforced. Jackson v. Indian Creek Reservoir Ditch & Irrigation Co., 16 Idaho 430, 101 P. 814 (1909).

Cited

Walbridge v. Robinson, 22 Idaho 236, 125 P. 812 (1912); Public Utils. Comm’n v. Natatorium Co., 36 Idaho 287, 211 P. 533 (1922); South Boise Water Co. v. McDonald, 50 Idaho 409, 296 P. 591 (1931).

Cross References.

Attachment for contempt,§ 7-601 et seq.

Service of subpoenas, Idaho R. Civ. P. 4.

CASE NOTES

Appeal.

This section expressly confers jurisdiction upon district court to hear appeals from orders of boards of county commissioners fixing water rates. Rust v. Stewart, 7 Idaho 558, 64 P. 222 (1901).

Intent.

Intent of this provision is that water rate, once established, is to remain in force until the establishment of a new one in conformity with law. Green v. Jones, 22 Idaho 560, 126 P. 1051 (1912).

§ 42-1005. Matters considered in fixing rate.

In fixing the rates at which water shall be furnished, the board of commissioners shall take into consideration the cost of the works, the expense of keeping the same in repair, and all other conditions that affect the cost of delivering the same. Whenever it shall appear to the board of county commissioners from competent evidence that any consumer or consumers of water distributed through any ditch or canal, is entitled to the distribution or use of any water therefrom, at not to exceed a proportionate amount of the actual cost of maintenance and operation of said ditch or canal, they shall, upon request of such person or persons so entitled, fix the rate per cubic foot per second to be charged to such consumer or consumers for the current year.

History.

1899, p. 380, § 30; reen. R.C. & C.L., § 3298; C.S., § 5645; I.C.A.,§ 41-905.

Chapter 11 RIGHTS OF WAY

Sec.

§ 42-1101. Rights of landowners to water.

All persons, companies and corporations owning or claiming any lands situated on the banks or in the vicinity of any stream, are entitled to the use of the waters of such stream for the purpose of irrigating the land so held or claimed.

History.

R.S., § 3180; reen. R.C. & C.L., § 3299; C.S., § 5646; I.C.A.,§ 41-1001.

CASE NOTES

Riparian Rights.

In the dissenting opinion this section was cited in support of the application of the doctrine of riparian rights to the irrigation law, but the majority of the court, without citing this section, declared, in effect, that the doctrine of riparian rights has no place in the jurisprudence of this state. Drake v. Earhart, 2 Idaho 750, 23 P. 541 (1890).

Riparian rights are substantial property rights which may not be arbitrarily destroyed, but they are subject to the police power of the state and, within reasonable limits, may be modified by legislation passed in the interest of the general welfare. California-Oregon Power Co. v. Beaver Portland Cement Co., 73 F.2d 555 (9th Cir. 1934), aff’d, 295 U.S. 142, 55 S. Ct. 725, 79 L. Ed. 1356 (1935).

§ 42-1102. Owners of land — Right to right-of-way.

When any such owners or claimants to land have not sufficient length of frontage on a stream to afford the requisite fall for a ditch, canal or other conduit on their own premises for the proper irrigation thereof, or where the land proposed to be irrigated is back from the banks of such stream, and convenient facilities otherwise for the watering of said lands cannot be had, such owners or claimants are entitled to a right-of-way through the lands of others, for the purposes of irrigation. The right-of-way shall include, but is not limited to, the right to enter the land across which the right-of-way extends for the purposes of cleaning, maintaining and repairing the ditch, canal or conduit, and to occupy such width of the land along the banks of the ditch, canal or conduit as is necessary to properly do the work of cleaning, maintaining and repairing the ditch, canal or conduit with personnel and with such equipment as is commonly used or is reasonably adapted to that work. The right-of-way also includes the right to remove from and to deposit on the banks of the ditch or canal the debris, vegetation, and other matter necessarily required to be taken from the ditch, canal, or right-of-way to properly access, clean, and maintain them, but no greater width of land along the banks of the canal or ditch than is absolutely necessary for such deposits shall be occupied by the removed debris, vegetation, or other matter. The right-of-way also includes the right to remove or control vegetation within the ditch or canal or along the banks of the ditch or canal to properly access, clean, and maintain them, but the owner or operator of the ditch, canal, or conduit is not obligated to maintain or control the right-of-way or vegetation for the benefit of the owners or claimants of lands of others. Provided that in the making, constructing, keeping up and maintenance of such ditch, canal or conduit, through the lands of others, the person, company or corporation, proceeding under this section, and those succeeding to the interests of such person, company or corporation must keep such ditch, canal or other conduit in good repair and are liable to the owners or claimants of the lands crossed by such work or aqueduct for all damages occasioned by the overflow thereof, or resulting from any neglect or accident (unless the same be unavoidable) to such ditch or aqueduct.

The existence of a visible ditch, canal or conduit shall constitute notice to the owner, or any subsequent purchaser, of the underlying servient estate, that the owner of the ditch, canal or conduit has the right-of-way and incidental rights confirmed or granted by this section.

Rights-of-way provided by this section are essential for the operations of the ditches, canals and conduits. No person or entity shall cause or permit any encroachments onto the right-of-way, including public or private roads, utilities, fences, gates, pipelines, structures, landscaping, trees, vegetation, or other construction or placement of objects, without the written permission of the owner or operator of the right-of-way, in order to ensure that any such encroachments will not unreasonably or materially interfere with the use and enjoyment of the right-of-way. Encroachments of any kind placed in such right-of-way without express written permission of the owner or operator of the right-of-way shall be removed at the expense of the person or entity causing or permitting such encroachment, upon the request of the owner or operator of the right-of-way, in the event that any such encroachments unreasonably or materially interfere with the use and enjoyment of the right-of-way. Nothing in this section shall in any way affect the exercise of the right of eminent domain for the public purposes set forth in section 7-701, Idaho Code. This section shall apply to ditches, canals or other conduits existing on the effective date of this act, as well as to ditches, canals or other conduits constructed after such effective date.

History.

1880, p. 267, § 11; R.S., § 3181; reen. R.C. & C.L., § 3300; C.S., § 5647; I.C.A.,§ 42-1002; am. 1996, ch. 187, § 1, p. 594; am. 2004, ch. 179, § 1, p. 561; am. 2019, ch. 158, § 1, p. 511; am. 2019, ch. 183, § 1, p. 589.

STATUTORY NOTES

Amendments.

This section was amended by two 2019 acts which appear to be compatible and have been compiled together.

The 2019 amendment, by ch. 158, inserted “or operator” following “owner” throughout the third paragraph.

The 2019 amendment, by ch. 183, in the first paragraph, rewrote the third sentence, which formerly read: “The right-of-way also includes the right to deposit on the banks of the ditch or canal the debris and other matter necessarily required to be taken from the ditch or canal to properly clean and maintain it, but no greater width of land along the banks of the canal or ditch than is absolutely necessary for such deposits shall be occupied by the removed debris or other matter” and inserted the present fourth sentence; and inserted “landscaping, trees, vegetation” near the middle of the second sentence in the third paragraph.

Compiler’s Notes.

The phrase “the effective date of this act” in the last paragraph refers to the effective date of S.L. 1996, Chapter 187, which was effective March 12, 1996.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 3 of S.L. 1996, ch. 187 declared an emergency. Approved March 12, 1996.

CASE NOTES

Condemnation for right of way. Repair and maintenance costs.

Condemnation for Right of Way.

Where an owner of land was denied access for irrigation water across the lands of an adjacent landowner, the owner could condemn a right of way to supply the water under the law of eminent domain. White v. Marty, 97 Idaho 85, 540 P.2d 270 (1975), overruled on other grounds, Carr v. Magistrate Court, 108 Idaho 546, 700 P.2d 949 (1985).

Landlocked individuals may condemn a right of way through the lands of others for purposes of irrigation. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Repair and Maintenance Costs.

Rights of Servient and Dominant Owners.

Where irrigation district sought an injunction to prohibit servient owner from constructing a sidewalk and fence on property over which the district had an irrigation easement, it was determined that the irrigation district’s easement was not exclusive, and the district failed to produce evidence showing that construction of the sidewalk and fence along the side of the irrigation lateral would unreasonably interfere with its rights under the easement, regardless of whether those rights arose from the grant of the channel change easement or this section. Nampa & Meridian Irrigation Dist. v. Washington Fed. Sav., 135 Idaho 518, 20 P.3d 702 (2001), overruled on other grounds, Idaho Military Historical Soc’y, Inc. v. Maslen, 156 Idaho 624, 329 P.3d 1072 (2014).

Irrigation district does not enjoy exclusive rights in its primary easements and rights-of-way. Rather, this section only contemplates a right-of-way for cleaning, maintaining, and repairing canals. This section provides notice to owners of land that the owner of the ditch or canal has the right-of-way, and serves to clarify what the right-of-way includes. Pioneer Irrigation Dist. v. City of Caldwell, 153 Idaho 593, 288 P.3d 810 (2012).

Trial court did not err by determining that an irrigation district owned a right-of-way along an irrigation canal that ran the entire length of an owners’ property and that the right-of-way commenced at the top of the bank before the bank began its descent to the water, where portions of the owner’s property stretched out flat from the top of the bank. The right-of-way commenced from the outside toe of the berm levy or bank, where the land began to level out where portions of the owner’s property abutting the canal were bermed or levied. Morgan v. New Swed. Irrigation Dist., 160 Idaho 47, 368 P.3d 990 (2016).

Use of Existing Canal.

Where an irrigation company had purchased approximately 300 cfs of Snake River water and sought to put that water to beneficial use on land located west of an existing canal system, but where the irrigation company had no canal and there existed no natural waterway by which its water could be transported by gravity to its stockholders’ lands, the irrigation company could condemn the right to enlarge and use the existing canal in common with the canal company and thus the irrigation company could divert its water from the Snake River into the canal company’s canal system and then reclaim a like amount, with due allowance for seepage and evaporation, at a headgate closer to its irrigation project site. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981). RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-1103. Owners of springs and streams — Right to right of way.

Where the owners of any spring, or the appropriators thereof, or of any stream, desire to conduct the waters thereof to any lands for the purposes of irrigation, or to any city or town for the use of the inhabitants thereof, or to any factory, or to any distant place, with the intent to apply the same to a beneficial use, and to accomplish such object it is necessary to cross with ditches, flumes or other conduit, the lands owned or occupied by others than the owners or appropriators of such spring or stream, the right of way over and across the lands of others for conducting said water may be acquired in the manner above provided.

History.

1880, p. 267, § 15; R.S., § 3185; reen. R.C. & C.L., § 3301; C.S., § 5648; I.C.A.,§ 41-1003.

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-1104. Right of way over state lands.

The right of way over and upon any and all lands owned or controlled by the state of Idaho is hereby granted to any and all persons for the purpose of constructing and maintaining any ditch, canal, conduit or other works for the diversion or carrying of water for any beneficial use: provided, that no property shall be taken under the provisions of this section until a just compensation shall be paid therefor, to be ascertained in the manner prescribed by law for the taking of private property for a public use.

History.

1899, p. 380, § 13; reen. R.C. & C.L., § 3302; C.S., § 5649; I.C.A.,§ 41-1004.

STATUTORY NOTES

Cross References.

Procurement of right of way over state lands,§ 58-601 et seq.

Right of eminent domain,§ 7-701 et seq.

Running water across public highway, construction of bridges and culverts,§ 40-2321.

CASE NOTES

Compensation.

Right of way over state land can be acquired only after just compensation is paid therefor, to be ascertained in the manner prescribed by law. Tobey v. Bridgewood, 22 Idaho 566, 127 P. 178 (1912), overruled on other grounds, Idaho-Iowa Lateral & Reservoir Co. v. Fisher, 27 Idaho 695, 151 P. 998 (1915).

Condemnation of State Lands.

This section, taken in conjunction with R. S., § 5212 (§ 7-703 herein), authorizes action in district court to condemn state lands for public use. Hollister v. State, 9 Idaho 8, 71 P. 541 (1903).

Easements.

Federal Authority to Condemn Lands.

Where irrigation ditch extended in part across school section, and owners had not acquired easement therefor in the statutory manner, private party could not question such owners’ right to the easement. Swan v. Sproat, 36 Idaho 75, 209 P. 1070 (1922). Federal Authority to Condemn Lands.

The state of Idaho has consented to be sued in condemnation proceedings involving lands belonging to the state, and the federal government has the authority to condemn and acquire endowed school lands belonging to the state for purposes of an irrigation canal right of way for a migratory waterfowl refuge. United States v. Forty Acres, More or Less, of Land, 24 F. Supp. 390 (D. Idaho 1938).

Cited

Dayley v. Burley, 96 Idaho 101, 524 P.2d 1073 (1974).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-1105. Right of way for riparian proprietors.

All persons, companies and corporations owning or having the possessory title or right to lands adjacent to any stream, have the right to place in the channel or upon the banks or margin of the same, rams or other machines for the purpose of raising the waters thereof to a level above the banks, requisite for the flow thereof to and upon such adjacent lands; and the right of way over and across the lands of others, for conducting said waters, may be acquired in the manner prescribed in the following section.

History.

1880, p. 267, § 14; R.S., § 3184; am. R.C. & C.L., § 3303; C.S., § 5650; I.C.A.,§ 41-1005.

CASE NOTES

Nature of Right.

License given by this section does not confer any power to appropriate, without reference to beneficial use, the entire volume of a river or its current, to the destruction of the rights of others to make appropriations of the unused water. Schodde v. Twin Falls Land & Water Co., 224 U.S. 107, 32 S. Ct. 470, 56 L. Ed. 686 (1912).

This section gives mere license to use an appropriate method for raising water, but the method or means adopted does not attach as an appurtenance to the appropriation of the water as against other appropriators. Schodde v. Twin Falls Land & Water Co., 161 F. 43 (9th Cir. 1908), aff’d, 224 U.S. 107, 32 S. Ct. 470, 56 L. Ed. 686 (1912).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-1106. Right of eminent domain.

In case of the refusal of the owners or claimants of any lands, through which any ditch, canal or conduit is proposed to be made or constructed, to allow passage thereof, the person or persons desiring the right of way may proceed as in the law of eminent domain.

History.

1899, p. 380, § 14; reen. R.C. & C.L., § 3304; C.S., § 5651; I.C.A.,§ 41-1006.

STATUTORY NOTES

Cross References.

Law of eminent domain,§ 7-701 et seq.

CASE NOTES

Failure to Condemn Easement.

The plaintiff was not unjustly enriched by the levy of a maintenance assessment against the defendants where the defendants had failed to use legal remedies available to them to condemn an easement for a replacement ditch. Aberdeen-Springfield Canal Co. v. Peiper, 133 Idaho 82, 982 P.2d 917 (1999).

Injunction to Prevent Trespass.

An injunction will issue against trespass on owner’s land by reservoir company for maintenance purposes of ditches, etc., where reservoir company had not used water for period of 12 years. Condie v. Swainston, 62 Idaho 473, 112 P.2d 787 (1941).

Right to Condemn Right of Way.

Use of Existing Canal.

Condemnation of an easement to construct a pipeline for irrigation purposes, a beneficial use, was authorized and reasonably necessary to reduce conveyance losses. Telford Lands LLC v. Cain, 154 Idaho 981, 303 P.3d 1237 (2013). Use of Existing Canal.

Where an irrigation company had purchased approximately 300 cfs of Snake River water and sought to put that water to beneficial use on land located west of an existing canal system, but where the irrigation company had no canal and there existed no natural waterway by which its water could be transported by gravity to its stockholders’ lands, the irrigation company could condemn the right to enlarge and use the existing canal in common with the canal company and thus the irrigation company could divert its water from the Snake River into the canal company’s canal system and then reclaim a like amount, with due allowance for seepage and evaporation, at a headgate closer to its irrigation project site. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Cited

Branson v. Miracle, 107 Idaho 221, 687 P.2d 1348 (1984); Branson v. Miracle, 111 Idaho 933, 729 P.2d 408 (Ct. App. 1986).

RESEARCH REFERENCES

CASE NOTES

Water Decree Prior to Statute.

Since this statute was enacted subsequent to decree as to water rights, it could not be considered as controlling in construing that decree, rather the decree should have been construed in the light of the facts in the case and the law as it existed when the decree was entered. Anderson v. Dewey, 82 Idaho 173, 350 P.2d 734 (1960).

Cited

Twin Falls Land & Water Co. v. Lind, 14 Idaho 348, 94 P. 164 (1908).

§ 42-1202. Maintenance of ditch.

The owners or persons in control of any ditch, canal or conduit used for irrigating purposes shall maintain the same in good order and repair, ready to deliver water by the first of April in each year, and shall construct the necessary outlets in the banks of the ditches, canals or conduits for a proper delivery of water to persons having rights to the use of the water.

History.

1899, p. 380, § 16; reen. R.C. & C.L., § 3307; C.S., § 5655; I.C.A.,§ 41-1102.

STATUTORY NOTES

Cross References.

Canal rights of way infested with insect pests, or plant diseases, abatement as nuisance,§ 22-103.

Fish screens in ditches, canals, flumes or other water conduits required,§ 36-906.

Injuring ditch or headgate,§ 42-902.

CASE NOTES

Conflicting Evidence.

Where there was conflicting evidence concerning the adequacy of water supply and the court might have inferred that the water shortage resulted from construction defects in new ditch, but also could have inferred that the shortage was attributable to such other causes as lack of maintenance, for which the defendant contractor was not responsible, the court’s determination, under Idaho R. Civ. P. 41(b) motion for involuntary dismissal, that the plaintiff landowners failed to prove a right to damages resulting from alteration of an irrigation ditch by a highway construction contractor, was proper. Allen v. Burggraf Constr. Co., 106 Idaho 451, 680 P.2d 873 (Ct. App. 1984).

Liability for Costs.

Water Decree Prior to Statute.

Cited

Niday v. Barker, 16 Idaho 73, 101 P. 254 (1909).

§ 42-1203. Maintenance of embankments.

The owner, owners, and operators of any irrigating ditch, canal or conduit shall carefully keep and maintain the embankments thereof in good repair, in order to prevent the water from wasting during the irrigation season, and shall not at any time permit a greater quantity of water to be turned into said ditch, canal or conduit than the banks thereof will easily contain or than can be used for beneficial or useful purposes; it being the meaning of this section to prevent the wasting and useless discharge and running away of water. The duties referenced in this section, whether statutory or common law, require reasonable care only, and shall not be construed to impose strict liability or to otherwise enlarge the liability of the owner, owners, or operators of any irrigating ditch, canal or conduit. The owners, constructors, or operators of such ditches, canals, works or other aqueducts, while responsible for their own acts or omissions, shall not be liable for damage or injury caused by: (1) The diversion or discharge of water into a ditch, canal or conduit by a third party without the permission of the owner, owners, or operators of the ditch, canal or conduit; (2) Any other act or omission of a third party, other than an employee or agent of the owner, owners, or operators of the ditch, canal or conduit; or (3) An act of God, including fire, earthquake, storm or similar natural phenomenon. The provisions of this section shall not be construed to impair any defense that an owner, constructor, or operator of a ditch, canal, works or other aqueduct may assert in a civil action.

History.

1899, p. 380, § 22; reen. R.C. & C.L., § 3308; C.S., § 5656; I.C.A.,§ 41-1103; am. 2012, ch. 274, § 1, p. 772; am. 2019, ch. 158, § 2, p. 511.

STATUTORY NOTES

Cross References.

Penalty for wasting water,§ 18-4302.

Amendments.

The 2012 amendment, by ch 274, added the last three sentences.

The 2019 amendment, by ch. 158, inserted “and operators” or “or operators” throughout the section.

CASE NOTES

Instructions to Jury.

Giving instruction substantially embodying provisions of this section, in action by landowner for damages to crops caused by water seeping and percolating from defendant’s canal, was not improper. Stephenson v. Pioneer Irrigation Dist., 49 Idaho 189, 288 P. 421 (1930).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-1204. Prevention of damage to others.

The owners, constructors, or operators of ditches, canals, works or other aqueducts, and their successors in interest, using and employing the same to convey the waters of any stream or spring, whether the said ditches, canals, works or aqueducts be upon the lands owned or claimed by them, or upon other lands, must carefully keep and maintain the same, and the embankments, flumes or other conduits, by which such waters are or may be conducted, in good repair and condition, so as not to damage or in any way injure the property or premises of others. The duties referenced in this section, whether statutory or common law, require reasonable care only and shall not be construed to impose strict liability or to otherwise enlarge the liability of the owner, owners, or operators of any irrigating ditch, canal, works or other aqueduct. The owners, constructors, or operators of such ditches, canals, works or other aqueducts, while responsible for their own acts or omissions, shall not be liable for damage or injury caused by: (1) The diversion or discharge of water into a ditch, canal, works or other aqueduct by a third party without the permission of the owner, owners, or operators of the ditch, canal, works or other aqueduct; (2) Any other act or omission of a third party, other than an employee or agent of the owner, owners, or operators of the ditch, canal, works or other aqueduct; or (3) An act of God, including fire, earthquake, storm or similar natural phenomenon. The provisions of this section shall not be construed to impair any defense that an owner, constructor, or operator of a ditch, canal, works or other aqueduct may assert in a civil action. The owners, constructors, or operators have the right to enter the land across which the right-of-way extends, for the purposes of cleaning, maintaining and repairing the ditch, canal or conduit, and to occupy such width of the land along the banks of the ditch, canal or conduit as is necessary to properly do the work of cleaning, maintaining and repairing the ditch, canal or conduit with personnel and with such equipment as is commonly used or is reasonably adapted to that work. The right-of-way also includes the right to remove from and to deposit on the banks of the ditch or canal the debris, vegetation, and other matter necessarily required to be taken from the ditch, canal, or from the right-of-way to properly clean and maintain them, but no greater width of land along the banks of the canal or ditch than is absolutely necessary for such deposits shall be occupied by the removed debris, vegetation, or other matter. The right-of-way also includes the right to remove or control vegetation within the ditch or canal or along the banks of the ditch or canal to properly access, clean, and maintain them, but the owner or operator of the ditch, canal, or conduit is not obligated to maintain or control the right-of-way or vegetation for the benefit of the owners or claimants of lands of others.

History.

1880, p. 267, § 16; R.S., § 3186; reen. R.C. & C.L., § 3309; C.S., § 5657; I.C.A.,§ 41-1104; am. 1996, ch. 187, § 2, p. 594; am. 2012, ch. 274, § 2, p. 772; am. 2019, ch. 158, § 3, p. 511; am. 2019, ch. 183, § 2, p. 589.

STATUTORY NOTES

Amendments.

The 2012 amendment, by ch 274, added the second through fourth sentences.

This section was amended by two 2019 acts which appear to be compatible and have been compiled together.

The 2019 amendment, by ch. 158, inserted “or operators” or “or operator” throughout the section.

The 2019 amendment, by ch. 183, rewrote the present next-to-last sentence, which formerly read: “The right-of-way also includes the right to deposit on the banks of the ditch or canal the debris and other matter necessarily required to be taken from the ditch or canal to properly clean and maintain it, but no greater width of land along the banks of the canal or ditch than is absolutely necessary for such deposits shall be occupied by the removed debris or other matter”, and added the present last sentence.

Effective Dates.

Section 3 of S.L. 1996, ch. 187 declared an emergency. Approved March 12, 1996.

CASE NOTES

Crossing Ditch of Another.

In General.

It was not the province of the court to prescribe the nature, purpose or kind of a structure that could be constructed in the area referred to, the important thing was that such structure did not cause damage to or in any way injure the properties or premises of others. Smith v. Big Lost River Irrigation Dist., 83 Idaho 374, 364 P.2d 146 (1961); Pence v. Big Lost River Irrigation Dist., 83 Idaho 393, 364 P.2d 158 (1961); Donahue v. Big Lost River Irrigation Dist., 83 Idaho 393, 364 P.2d 158 (1961); Johnson v. Big Lost River Irrigation Dist., 83 Idaho 394, 364 P.2d 159 (1961).

Although this section imposes a duty to carefully keep and maintain canal banks in good repair, it does not define a standard of care by which the trier of fact may determine whether a defendant has failed to carefully keep and repair its canal banks. Brizendine v. Nampa Meridian Irrigation Dist., 97 Idaho 580, 548 P.2d 80 (1976).

Instructions to Jury.

An instruction that one who undertakes the construction of an artificial channel must build, operate and maintain it in such manner as not to cause damage to others did not conflict with an instruction covering the situation where the artificial channel was not the proximate cause of the damage. Smith v. Big Lost River Irrigation Dist., 83 Idaho 374, 364 P.2d 146 (1961); Pence v. Big Lost River Irrigation Dist., 83 Idaho 393, 364 P.2d 158 (1961); Donahue v. Big Lost River Irrigation Dist., 83 Idaho 393, 364 P.2d 158 (1961); Johnson v. Big Lost River Irrigation Dist., 83 Idaho 394, 364 P.2d 159 (1961).

Liability for Crop Losses.

The owner of irrigation ditch was liable in damages for crop losses caused by seepage from ditch. Albrethson v. Carey Valley Reservoir Co., 67 Idaho 529, 186 P.2d 853 (1947).

The contractor who had constructed a new irrigation ditch for the department of highways to facilitate the construction of a new highway through the area was not liable to a property owner for crop damage resulting from failure to properly repair damage to the ditch from trampling of the levee by pastured cows after the ditch was completed and accepted by the department of highways. Gates v. Pickett & Nelson Constr. Co., 91 Idaho 836, 432 P.2d 780 (1967), overruled on other grounds, Smith v. State, 93 Idaho 795, 473 P.2d 937 (1970).

Negligence Per Se.

This section does not require a permit or application, but rather requires the owners or constructors of ditches, canals, works, or other aqueducts to prevent damage to others. Therefore, this section does not create a negligence per se action, but only codifies that ditch owners and constructors can be held liable for damages occurring to others as a result of negligence. Stott ex rel. Dougall v. Finney, 130 Idaho 894, 950 P.2d 709 (1997).

Negligent Construction or Maintenance.

The owner of an irrigation ditch was liable for damage resulting from negligence in constructing or maintaining the ditch. Albrethson v. Carey Valley Reservoir Co., 67 Idaho 529, 186 P.2d 853 (1947).

In action brought to recover damages for injury to a crop of potatoes, a finding by the jury of negligence on the appellant’s part in maintaining the lateral was justified where either water in some considerable quantity, more than the lateral could safely carry, was emptied into the lateral while checked and backed up by flash boards, causing the banks of the lateral to overflow and break, or seepage through a gopher hole enlarged to a stream sufficient to break the bank of the lateral. Johnson v. Burley Irrigation Dist., 78 Idaho 392, 304 P.2d 912 (1956). The owner of an irrigation canal was liable for property damage resulting from water from the canal seeping into the residence basement of an abutting property owner. Harris v. Preston-Whitney Irrigation Co., 92 Idaho 398, 443 P.2d 482 (1968).

In landowners’ action for damages for injury to property caused by flooding which resulted when irrigation district’s canal bank broke, an engineer’s testimony that the break was caused by a combination of factors including inadequate design, poor construction procedures, and gopher holes penetrating the embankment supported the trial court’s findings that the canal would not have broken in the absence of negligence and that the irrigation district was thereby liable. Brizendine v. Nampa Meridian Irrigation Dist., 97 Idaho 580, 548 P.2d 80 (1976).

Owner’s Testimony for Appraisement.

Since it is a settled rule in this state that the owner of property is a competent witness as to its value, the owner’s failure or inability to explain the basis for his appraisement affected the weight of his testimony but it did not disqualify him as a witness. Smith v. Big Lost River Irrigation Dist., 83 Idaho 374, 364 P.2d 146 (1961); Pence v. Big Lost River Irrigation Dist., 83 Idaho 393, 364 P.2d 158 (1961); Donahue v. Big Lost River Irrigation Dist., 83 Idaho 393, 364 P.2d 158 (1961); Johnson v. Big Lost River Irrigation Dist., 83 Idaho 394, 364 P.2d 159 (1961).

Ownership and Water Rights Distinguished.

The fact that water is stored in a reservoir does not make those who have rights to the water the owners of the dam that creates the reservoir. Marty v. State, 117 Idaho 133, 786 P.2d 524 (1989).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-1205. Bridges over ditches.

All owners of any ditch, canal or conduit, or any other means for conveying water, shall build substantial bridges not less than sixteen (16) feet wide, and with boards not less than two (2) inches in thickness (unless the same shall be on a county or state road, when such boards shall not be less than three (3) inches thick), at all places where any county or state road crosses the same, or any road kept open and used by any neighborhood of people for their benefit and convenience. In case of neglect or refusal of such owners to build such bridges as above required, after a notice of ten (10) days being given by the said board of county commissioners of the proper county, said board shall proceed to the construction of the same, and shall collect the cost thereof together with the costs of suit: provided, that after any bridge shall have been constructed across any ditch, canal or conduit on any county or state road in accordance with the provisions of this section, it shall thereafter be maintained at the public expense.

History.

1899, p. 380, § 25; reen. R.C., § 3310; compiled and reen. C.L., § 3310; C.S., § 5658; I.C.A.,§ 41-1105.

STATUTORY NOTES

Compiler’s Notes.

The concluding proviso of this section, as it appeared in the 1899 act read, “provided, that after said bridge shall have been constructed across any county or state road . . . . .” The change is made on authority of MacCammelly v. Pioneer Irr. Dist. (1909), 17 Idaho 415, 105 P. 1076.

The words enclosed in parentheses so appeared in the law as enacted.

CASE NOTES

Liability for Cost.

County must construct all bridges to complete highway over ditch laid out after the ditch has been constructed, but not if highway built first. MacCammelly v. Pioneer Irrigation Dist., 17 Idaho 415, 105 P. 1076 (1909).

If ditch or canal was constructed prior to establishment of public highway which intersects it, expense of building bridge must be borne by county or highway district. Gooding Hwy. Dist. v. Idaho Irrigation Co., 30 Idaho 232, 164 P. 99 (1917).

§ 42-1206. Repair of community ditches.

Where a ditch is common property, or there is a common right to the use of the water of a ditch without payment therefor, and any labor or materials are necessary for the repair or cleaning of the ditch, or any gate or flume thereon or thereunto belonging, the watermaster of the district may make a fair pro rata assessment of labor or materials against the inhabitants of the district claiming the use of such water, according to the benefits received by each; and if any person so assessed neglects or refuses, for the period of three (3) days after notice so to do from the watermaster or his deputy, to furnish his just proportion of the necessary labor or materials, according to such assessment, he must pay his pro rata in cash, to be recovered, with costs, in an action by the watermaster in his own name.

History.

1880, p. 273, § 4; R.S., § 3203; reen. R.C. & C.L., § 3311; C.S., § 5659; I.C.A.,§ 41-1106.

CASE NOTES

Remedy of Water Company.

This section was not repealed by S.L. 1899, p. 380, and water company which delivered water to consumer without obtaining prepayment of charges therefor could not shut off consumer’s water because of his refusal to pay such charges, but could maintain an action to recover amount of charges. Shelby v. Farmers Coop. Ditch Co., 10 Idaho 723, 80 P. 222 (1905).

RESEARCH REFERENCES

Am. Jur. 2d.

§ 42-1207. Change of ditch, canal, lateral, drain or buried irrigation conduit.

Where any ditch, canal, lateral or drain or buried irrigation conduit has heretofore been, or may hereafter be, constructed across or beneath the lands of another, the person or persons owning or controlling said land shall have the right at their own expense to change said ditch, canal, lateral or drain or buried irrigation conduit to any other part of said 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 persons using or interested in such ditch, canal, lateral or drain or buried irrigation conduit. Any increased operation and maintenance shall be the responsibility of the landowner who makes the change, his heirs, executors, administrators, successors and assigns.

A landowner shall also have the right to bury the ditch, canal, lateral or drain of another in pipe on the landowner’s property, provided that the pipe, 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. The right and responsibility for operation and maintenance shall remain with the owner of the ditch, canal, lateral or drain, but the landowner, 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.

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 changed or placed in buried pipe by the landowner.

While the owner or operator of a ditch, canal, lateral, drain or buried irrigation conduit shall have no right to relocate it on the property of another without permission, a ditch, canal, lateral or drain owner or operator shall have the right to place it in a buried conduit within the easement or right-of-way on the property of another 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 pipe and the construction is accomplished in a manner that the surface of the owner’s property and the owner’s use thereof is not disrupted and is restored to the condition of adjacent property as expeditiously as possible, but no longer than thirty (30) days after the completion of construction. A landowner shall have the right to direct that the conduit be relocated to a different route than the route of the ditch, canal, lateral or drain, provided that the landowner, 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.

History.

1907, p. 237, § 4; reen. R.C. & C.L., § 3311a; C.S., § 5660; I.C.A., § 41-1107; am. 1994, ch. 151, § 1, p. 345; am. 2002, ch. 115, § 4, p. 326; am. 2005, ch. 331, § 1, p. 1038; am. 2011, ch. 177, § 1, p. 504; am. 2019, ch. 158, § 4, p. 511. STATUTORY NOTES

Amendments.

The 2011 amendment, by ch. 177, near the end of the first, second, and last paragraphs, inserted “his heirs, executors, administrators, successors and assigns”; and, in the last paragraph, deleted “agree in writing to” preceding “be responsible for” in the next-to-last sentence.

The 2019 amendment, by ch. 158, inserted “or operator” following “owner” throughout the third and fourth paragraphs.

CASE NOTES

Change Without Permission.

When a servient estate owner, acting without permission of a ditch owner, changes the course of the ditch on his property, he subjects himself to the obligation to restore the ditch to its previous condition or, alternately, to an award of damages to accomplish the same, and to an award of damages for injuries resulting from the unauthorized interference. Bratton v. Scott, 150 Idaho 530, 248 P.3d 1265 (2011).

Compensable Injuries.

Although this section does not delineate the type of injuries that are compensable, increased maintenance burdens and forced rotation of use are compensable injuries. Additionally, when there are minor increases in maintenance burdens accompanied by other injuries, such as forced rotation of use, these combined injuries are also compensable injuries. Bratton v. Scott, 150 Idaho 530, 248 P.3d 1265 (2011).

Compliance with Statutory Requirement.

Conflicting Evidence.

Servient estate seeking to change location of ditch must comply with statutory requirement, since prior to enactment of statutory law there was no right to change a ditch. Simonson v. Moon, 72 Idaho 39, 237 P.2d 93 (1951). Conflicting Evidence.

Where there was conflicting evidence concerning the adequacy of water supply and the court might have inferred that the water shortage resulted from construction defects in new ditch, but also could have inferred that the shortage was attributable to such other causes as lack of maintenance, for which the defendant contractor was not responsible, the court’s determination, under an Idaho R. Civ. P. 41(b) motion for involuntary dismissal, that the plaintiff landowners failed to prove a right to damages resulting from alteration of an irrigation ditch by a highway construction contractor, was proper. Allen v. Burggraf Constr. Co., 106 Idaho 451, 680 P.2d 873 (Ct. App. 1984).

Dominant Estate Holder.

As the holder of the ditch right, the dominant estate owner may make changes to an irrigation ditch easement, so long as the changes do not increase the burden on the servient land, even if those changes remove an incidental benefit to the servient estate holder. Zingiber Inv., LLC v. Hagerman Highway Dist., 150 Idaho 675, 249 P.3d 868 (2011), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012).

This section grants a ditch owner the express right to pipe the ditch under the existing ditch easement or right-of-way. It also implicitly grants the ditch owner the right to pipe the ditch in a location off of the servient land without the servient landowner’s permission, because the statute states that written permission is only required if the ditch is relocated on the servient land. Further, piping the ditch in a location outside the servient land, and thus removing an incidental benefit along with it, is well within the rights of a dominant-estate holder. Zingiber Inv., LLC v. Hagerman Highway Dist., 150 Idaho 675, 249 P.3d 868 (2011), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012).

Historical Flow of Water.

A decrease in the amount of water to which users of water from an irrigation ditch are entitled, measured in terms of miners’ inches or c.f.s., may be the best method of establishing that the flow has been impeded, but it is not the only method to prove this occurrence. Ditch rights are determined by the flow of water historically conveyed through the ditch and not necessarily by the amount of water to which its users are entitled under the water laws of this state. Savage Lateral Ditch Water Users Ass’n v. Pulley, 125 Idaho 237, 869 P.2d 554 (1994).

Impediment to Water Flow.

Defendant could not recover under this section because he failed to introduce any evidence of the historic flow rate of water to his property before and after plaintiff’s changes, and another property owner whose property received water from the new concrete collection box through an outlet at the same level in the collection box as the outlet to defendant’s property, testified that she received more water after plaintiff’s changes. Weaver v. Stafford, 134 Idaho 691, 8 P.3d 1234 (2000), overruled on other grounds, Weitz v. Green, 148 Idaho 851, 230 P.3d 743 (2010).

Increased Maintenance Burden to Others.

Landowner.

An increased maintenance burden caused other users is an injury prohibited under this section; although a minor increase in the length of a ditch or other conditions which negligibly increase its maintenance are insufficient injuries by themselves to constitute a violation of the statute, when such burdens are accompanied by forced rotation of ditch use or other inconvenience, the combined injuries are sufficient. Savage Lateral Ditch Water Users Ass’n v. Pulley, 125 Idaho 237, 869 P.2d 554 (1994). Landowner.

The first paragraph of this section gives a servient-estate owner the right to move an irrigation ditch on his own property, so long as it does not injure any of the other ditch users. Zingiber Inv., LLC v. Hagerman Highway Dist., 150 Idaho 675, 249 P.3d 868 (2011), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012).

Landowner’s Rights.

A landowner is not the owner of that portion of an irrigation ditch that passes through his land, but is simply the owner of a servient estate. The owner of a servient estate does not have any right in the easement that crosses his land, because a servient estate simply permits another’s use of its land. Zingiber Inv., LLC v. Hagerman Highway Dist., 150 Idaho 675, 249 P.3d 868 (2011), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012).

Maintenance of Changed Ditch.

One, across whose land a lateral ditch was constructed, could change its location only at his own expense, but he need not thereafter maintain ditch. Crawford v. Inglin, 44 Idaho 663, 258 P. 541 (1927).

Ditch should be maintained by persons interested in ditch. Earhart v. Wright, 50 Idaho 270, 295 P. 630 (1931).

Where servient estate cut off side ditch used by defendant for part of his water supply, but constructed a new ditch for use of defendant, burden of proof in proceeding to enjoin prosecution for cutting off ditch was on plaintiff to show that new ditch would convey same amount of water as conveyed by old ditch without impeding the flow in the main ditch. Simonson v. Moon, 72 Idaho 39, 237 P.2d 93 (1951).

If change in location of side ditch required rotation in use of water by users of main ditch, there was a substantial impediment in flow of water. Simonson v. Moon, 72 Idaho 39, 237 P.2d 93 (1951).

The installation of the Jamerson pipeline and the diversion works would in nowise change or affect respondent’s easement in the East Ditch, to transmit therein to his land 60 miners inches of water when needed or desired, such installation only changing the location of such easement in an open surface ditch to an underground ditch, such being accomplished through the cooperation of both landowners and by agreement arrived at between them. Ramseyer v. Jamerson, 78 Idaho 504, 305 P.2d 1088 (1957).

The trial court failed to recognize the application of this section although the parties themselves had applied the same in compromise and settlement of the controversy regarding appellant’s right to an easement sufficient to accommodate the diagonal lateral over respondent’s land or in lieu thereof, to a corresponding easement for a ditch over respondent’s lands changed to a location at respondent’s expense, different from that of the diagonal lateral. Aguirre v. Hamlin, 80 Idaho 176, 327 P.2d 349 (1958).

Plaintiff did not become entitled to a ditch of greater size and capacity and to an easement therefor, than his original diagonal lateral destroyed by respondent and the easement over respondent’s lands should have been of similar construction as the diagonal lateral, over the route as designated by respondent to a point where the diagonal lateral formerly entered appellant’s property. Aguirre v. Hamlin, 80 Idaho 176, 327 P.2d 349 (1958). Where irrigation district entered into agreement with school district to place irrigation ditch in an underground pipe and to construct a cement inlet collar and safety/trash screen for such ditch to be located on the plaintiffs’ property, this section gave the school district the right to place the ditch underground on its property and gave plaintiffs the right to move the cement inlet collar and safety/trash screen to the back of their property where it would be less offensive to them, at their expense, if the requirements of the statute were met. Abbott v. Nampa Sch. Dist. No. 131, 119 Idaho 544, 808 P.2d 1289 (1991).

Proof of Causation.

Whether liability for diminished water flow was predicated upon negligence, or upon violation of this section, the plaintiff landowners were required to show that relocation of the ditch actually caused a diminished flow of water to their properties since proof of causation is essential to invoke the statute. Allen v. Burggraf Constr. Co., 106 Idaho 451, 680 P.2d 873 (Ct. App. 1984).

Scope.

This section is broadly worded and does not specify that it is only the amount of water to which downstream users are entitled under the water laws of this state which may not be impeded. Savage Lateral Ditch Water Users Ass’n v. Pulley, 125 Idaho 237, 869 P.2d 554 (1994).

Because a servient estate owner can neither decrease the water flow nor cause injury to the dominant estate, this section protects two distinct property rights — water rights and ditch rights; it protects a dominant estate owner from injuries relating to an impediment to water flow, as well as from any other injuries suffered by the dominant estate owner as a result of the servient estate owner’s interference with the ditch. Bratton v. Scott, 150 Idaho 530, 248 P.3d 1265 (2011).

Cited

Statewide Constr., Inc. v. Pietri, 150 Idaho 423, 247 P.3d 650 (2011).

§ 42-1208. Easements or rights-of-way not subject to adverse possession.

Easements or rights-of-way of irrigation districts, Carey act operating companies, nonprofit irrigation entities, lateral ditch associations, and drainage districts are not subject to adverse possession, and no person shall prevent free access of authorized personnel on easements or rights-of-way or construct any obstruction on easements or rights-of-way in an effort to adversely possess said easement or right-of-way.

History.

I.C.,§ 42-1208, as added by 1981, ch. 344, § 1, p. 713; am. 2004, ch. 179, § 2, p. 561.

STATUTORY NOTES

Federal References.

The Carey act, referred to in this section, is the federal desert land act of 1984, codified as 43 USCS § 641 et seq.

§ 42-1209. Encroachments on easements and rights-of-way.

Easements or rights-of-way operated, maintained, controlled or owned by irrigation districts, Carey act operating companies, nonprofit irrigation entities, lateral ditch associations, and drainage districts are essential for the operations of such irrigation and drainage entities. Accordingly, no person or entity shall cause or permit any encroachments onto the easements or rights-of-way, including any public or private roads, utilities, fences, gates, pipelines, structures, landscaping, trees, vegetation, or other construction or placement of objects, without the written permission of the irrigation district, Carey act operating company, nonprofit irrigation entity, lateral ditch association, or drainage district owning, operating, maintaining, or controlling the easement or right-of-way, in order to ensure that any such encroachments will not unreasonably or materially interfere with the use and enjoyment of the easement or right-of-way. Encroachments of any kind placed in such easement or right-of-way, without such express written permission, shall be removed at the expense of the person or entity causing or permitting such encroachments, upon the request of the persons operating, maintaining, or controlling the easement or right-of-way or the owner of the easement or right-of-way, in the event that any such encroachments unreasonably or materially interfere with the use and enjoyment of the easement or right-of-way. Nothing in this section shall in any way affect the exercise of the right of eminent domain for the public purposes set forth in section 7-701, Idaho Code.

History.

I.C.,§ 42-1209, as added by 2004, ch. 179, § 3, p. 561; am. 2019, ch. 158, § 5, p. 511; am. 2019, ch. 183, § 3, p. 589.

STATUTORY NOTES

Amendments.

This section was amended by two 2019 acts which appear to be compatible and have been compiled together.

The 2019 amendment, by ch. 158, substituted “operated, maintained, controlled or owned by irrigation districts” for “of irrigation districts” near the beginning of the first sentence; inserted “operating, maintaining, or controlling” near the end of the second sentence; and inserted “the persons operating, maintaining, or controlling the easement or right-of-way or” in the next-to-last sentence. The 2019 amendment, by ch. 183, inserted “landscaping, trees, vegetation” near the beginning of the second sentence.

Federal References.

The Carey act, referred to in this section, is the federal desert land act of 1984, codified as 43 USCS § 641 et seq.

CASE NOTES

Determination of Interference.

An irrigation ditch owner is vested with the discretion to determine whether a proposed encroachment would result in unreasonable or material interference with the easement or right-of-way and, based on that exercise of discretion, is vested with the authority to grant or deny a requested encroachment. The ditch owner may take into account the impact of the encroachment, or encroachments, upon the use and enjoyment of the easement or right-of-way. Pioneer Irrigation Dist. v. City of Caldwell, 153 Idaho 593, 288 P.3d 810 (2012).

Removal.

Four conditions must be satisfied before an encroachment “shall” be removed. First, the encroachment must have been constructed after the effective date of this section. Second, the encroachment must have been constructed without permission. Third, the encroachment must unreasonably or materially interfere with the use and enjoyment of the easement or right-of-way. Fourth, the ditch owner must request that the party responsible for the encroachment remove it. Pioneer Irrigation Dist. v. City of Caldwell, 153 Idaho 593, 288 P.3d 810 (2012).

Review.

An irrigation ditch owner’s decision to request removal of encroachments, constructed without permission, or to, thereafter, remove offending encroachments shall be subject to review to determine whether a reasonable decision-making process was employed, and whether the decision was arbitrary and capricious or based upon clearly erroneous findings. Pioneer Irrigation Dist. v. City of Caldwell, 153 Idaho 593, 288 P.3d 810 (2012).

Rights of Possession.

Irrigation district does not enjoy exclusive rights in its primary easements and rights-of-way. Rather,§ 42-1102 only contemplates a right-of-way for cleaning, maintaining, and repairing canals. That section provides notice to owners of land that the owner of the ditch or canal has the right-of-way and serves to clarify what the right-of-way includes. Pioneer Irrigation Dist. v. City of Caldwell, 153 Idaho 593, 288 P.3d 810 (2012).

Chapter 13 LATERAL DITCH WATER USERS’ ASSOCIATIONS

Sec.

§ 42-1301. Organization — Officers — Rules.

When three (3) or more parties each own or possess and control land with appurtenant water rights which each are entitled to receive from the same point or points of delivery in a canal or reservoir, or from the same point or points of diversion from waters of the state, to be conveyed to their respective premises for any distance through the same lateral or distributing ditch or laterals or distributing ditches that are not operated and maintained by an irrigation district, canal company or other water delivery organization, such parties shall be members of and shall constitute a water users’ association known as “Lateral Water Users’ Association.” Such water users’ association may meet and organize at any time after thirty (30) days after this chapter shall take effect, and shall meet annually thereafter between January 1 and the last Monday in March of each year, at the call of the secretary of such association, said secretary to give ten (10) days’ notice by mail of such annual meeting; provided that if for any reason the secretary should fail to call a meeting, then the annual meeting of such association shall be held on the last Monday in March of each year. At such annual meetings each water user shall be entitled to one (1) vote in person, for each inch and a fractional vote for each fraction of an inch of water which such water user is entitled to receive from such laterals, and a corporation shall vote by one (1) of its officers designated by it. Such association shall organize by the election of a chairman, vice-chairman and a secretary-treasurer, which officers shall also constitute the board of directors of such association, and shall hold office for one (1) year and until their successors are elected. Such association at the annual meeting shall also elect a manager of said lateral or laterals to be known as “lateral manager” for the succeeding season and shall fix the compensation of said manager, and of all officers. Such association may adopt such rules and regulations for the management of said lateral or laterals or distributing ditch or ditches and the delivery of water therefrom as they deem best, and may, by majority vote, if it be deemed for the best interests of the association, combine one (1) or more laterals and abandon laterals not in use, and do any and all things not in conflict with the provisions of this chapter or the laws of this state wherein the best interests of the association will be furthered.

History.

1927, ch. 213, § 1, p. 295; I.C.A.,§ 41-1201; am. 1941, ch. 99, § 1, p. 178; am. 1947, ch. 172, § 1, p. 429; am. 2015, ch. 80, § 1, p. 202.

STATUTORY NOTES

Cross References.

Water users’ associations organized in conformity with provisions of federal reclamation laws, exemptions from taxes,§ 30-804.

Amendments.

The 2015 amendment, by ch. 80, rewrote the first sentence, which formerly read: “Where three (3) or more parties take water from same canal or reservoir at the same point to be conveyed to their respective premises for any distance through a lateral or distributing ditch or laterals or distributing ditches such parties shall constitute a water users’ association known as ‘Water Users’ Association of Lateral or Laterals.’”.

Effective Dates.

S.L. 1927, ch. 213 was approved March 12, 1927, and carried an emergency clause.

Section 2 of S.L. 1941, ch. 99 declared an emergency. Approved March 6, 1941.

CASE NOTES

Rights of Water Users.

Water users are entitled to organize and are authorized to provide for transfer of management of laterals owned by them to a ditch company pursuant to a unilateral agreement signed by the majority of the water users. Hale v. McCammon Ditch Co., 72 Idaho 478, 244 P.2d 151 (1951).

Standing.

Idaho law grants to lateral associations the authority to direct the improvement, repair and maintenance of the lateral and distributing ditches that serve its members, and to do any and all things not in conflict with other law wherein the best interests of the association will be furthered. As a result, even if a lateral association itself lacks an ownership interest in its members’ ditch easements, it has standing to seek injunctive relief enabling it to carry out its statutory responsibilities. Beach Lateral Water Users Ass’n v. Harrison, 142 Idaho 600, 130 P.3d 1138 (2006).

RESEARCH REFERENCES

C.J.S.

§ 42-1302. Lateral manager — Election — Duties.

Should any water users’ association at its annual meeting fail to elect a lateral manager or fix his compensation such lateral manager may be elected by the board of directors of such association, who may also fix his compensation. The manager of any lateral shall, in addition to the duties prescribed by the association, perform all duties fixed for such lateral manager under the provisions of sections 42-907 and 42-910[, Idaho Code], except as modified by this chapter.

History.

1927, ch. 213, § 2, p. 295; I.C.A.,§ 41-1202.

STATUTORY NOTES

Cross References.

Appointment of manager of distributing lateral,§ 42-907.

Duties of manager of distributing lateral,§ 42-910.

Compiler’s Notes.

The bracketed insertion near the end of the section was added by the compiler to conform to the statutory citation style.

RESEARCH REFERENCES

C.J.S.

§ 42-1303. Lateral ditches — Repairs, improvements, and maintenance — Assessment of costs.

The operation, improvement, repair and maintenance of any such lateral or distributing ditch shall be under the direction of the directors of the association. Following the association’s annual meeting, the association’s directors and the lateral manager shall examine the lateral or laterals or distributing ditch or ditches, and prepare an estimate of the total cost to operate, repair, improve and maintain the lateral or laterals or ditch or ditches to properly deliver water to the water users’ lands during the succeeding season, including the compensation of officers and lateral manager. Such total cost shall be assessed to each water user either (1) in the proportion which the quantity of water the water user is entitled to receive from such lateral or ditch bears to the total quantity of water which all association water users are entitled to receive therefrom, or (2) if the water user’s land consists of a lot or lots within a city or village, then the assessment may be made upon the basis of each lot, the same to be uniform upon lots of the same size.

History.

1927, ch. 213, § 3, p. 295; I.C.A.,§ 41-1203; am. 2015, ch. 80, § 2, p. 202.

STATUTORY NOTES

Amendments.

The 2015 amendment, by ch. 80, rewrote the section to the extent that a detailed comparison is impracticable.

CASE NOTES

Standing.

§ 42-1304. Assessments — Notice — Penalties for delinquency.

On or before the fifteenth day of April in each year the secretary of the association shall notify each water user of the amount assessed against him for that year as herein authorized, and the same shall be due and payable on the first day of May of each year and if not so paid on or before the fifteenth day of June of such year, a penalty of ten per cent (10%) shall be added thereto, and the total amount due shall then draw interest at the rate of ten per cent (10%) per annum from said fifteenth day of June of such year until paid.

History.

1927, ch. 213, § 4, p. 295; I.C.A.,§ 41-1204; am. 1977, ch. 247, § 1, p. 724.

STATUTORY NOTES

Effective Dates.

Section 3 of S.L. 1977, ch. 247 declared an emergency. Approved March 31, 1977.

RESEARCH REFERENCES

C.J.S.

STATUTORY NOTES

Prior Laws.

Former§ 42-1308, which comprised 1927, ch. 213, § 8, p. 295; I.C.A.,§ 41-1208, was repealed by S.L. 1977, ch. 247, § 2.

§ 42-1309. Association authorized to borrow money, mortgage or pledge assets.

Lateral ditch water users’ associations are expressly authorized to borrow money from any private or governmental source, to be repaid over a period of years, and to levy assessments over such period of years for the purpose of repaying said loan, and they are also authorized and empowered to mortgage and/or pledge any of the assets of said associations as security for said loan; providing, however, that before any money can be borrowed or any mortgage or pledge can be made and entered into, all members of said association shall be notified of an election by two (2) weekly publications in a legally authorized newspaper, as defined in section 60-106, Idaho Code, within the county in which the association is located, said notice to provide that an election is being called to determine whether or not the association shall be authorized to borrow money and mortgage and/or pledge its assets, and shall also state the date, time and place of said election, which shall be held within ten days after the date of the last publication of said notice.

If a majority of the total outstanding shares shall vote at said election in favor of borrowing said money and mortgaging and/or pledging said assets, then said association, through its president and secretary, shall be authorized to borrow said money and mortgage and/or pledge its assets.

History.

I.C.,§ 42-1309, as added by 1957, ch. 59, § 1, p. 101.

I.C.,§ 42-1313, as added by 2015, ch. 80, § 5, p. 202.

Chapter 14 ADJUDICATION OF WATER RIGHTS

Sec.

§ 42-1401. Legislative intent.

The legislature finds and declares that the state laws and procedures for the adjudication of rights to the use of water need to be modified:

to provide a statutory procedure for incorporating a negotiated agreement between a federal reserved water right claimant and the state of Idaho into an adjudication;
to provide a more efficient method for adjudications;
to assure that state laws and procedures provide a fair and impartial forum for the adjudication of the rights of all claimants; and
to assure that state laws and procedures are adequate as a matter of federal law to adjudicate all water rights claimed to have been established under federal law and to administer such rights.

History.

I.C.,§ 42-1401, as added by 1986, ch. 220, § 2, p. 558; am. 1994, ch. 454, § 1, p. 1443.

STATUTORY NOTES

Prior Laws.

Former§ 42-1401, which comprised 1903, p. 223, § 37; am. 1905, p. 357, § 4; reen. R.C. & C.L. § 4620; C.S., § 7032; I.C.A.,§ 41-1301; am. 1969, ch. 279, § 1, p. 822; am. 1981, ch. 265, § 2, p. 561, was repealed by S.L. 1986, ch. 220, § 1.

CASE NOTES

Department of Water Resources Reports.

Reports compiled by personnel at the Idaho department of water resources and signed by supervisory personnel or the director are not inadmissible because they are not made on the personal knowledge of the signatory. State v. Hagerman Water Right Owners, Inc., 130 Idaho 736, 947 P.2d 409 (1997).

Procedural Requirements.

Parties to the Snake River Basin Adjudication (SRBA) are bound by the procedural requirements of SRBA Administrative Order 1, notwithstanding the provisions of the Idaho Rules of Civil Procedure. Holden v. Weece (In re SRBA Case No. 39576), 163 Idaho 393, 414 P.3d 215 (2018).

Cited

Sagewillow, Inc. v. Idaho Dep’t of Water Res., 138 Idaho 831, 70 P.3d 669 (2003); Rangen, Inc. v. Idaho Dep’t of Water Res. (In re Distrib. of Water to Water Right Nos. 36-02551 & 36-07694), 160 Idaho 119, 369 P.3d 897 (2016).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — The Role of the Idaho Department of Water Resources in the Snake River Basin Adjudication, Phillip J. Rassier. 52 Idaho L. Rev. 289 (2016).

§ 42-1401A. Definitions.

The following terms are defined for purposes of this chapter as follows:

“Claimant” means any person asserting ownership of rights to the use of water within the state of Idaho or on whose behalf ownership of rights to the use of water is asserted.
“Department” means the Idaho department of water resources.
“Director” means collectively the director of the Idaho department of water resources and the Idaho department of water resources.
“Domestic use” is defined in section 42-111, Idaho Code.
“General adjudication” means an action both for the judicial determination of the extent and priority of the rights of all persons to use water from any water system within the state of Idaho that is conclusive as to the nature of all rights to the use of water in the adjudicated water system, except as provided in section 42-1420, Idaho Code, and for the administration of those rights.
“Party” means any person who is a claimant or any person who is served or joined.
“Person” means an individual, a partnership, a trust, an estate, a corporation, a municipal corporation, the state of Idaho or any political subdivision, the United States, an Indian tribe, or any other public or private entity, except that “person” does not include the director of the department or the department.
“Private adjudication” means an action commenced in accordance with section 42-1404, Idaho Code, for the judicial determination of both the extent and priority of the rights of named persons to the use of water from any water system within the state of Idaho, for which a general adjudication has not been commenced or completed, that binds only those persons joined in the action and for the administration of such rights.
“Purchaser” means any successor in interest of a claimant, whether the interest is acquired by purchase, gift, inheritance, or other means.
“Supplemental adjudication” means an action commenced in accordance with section 42-1424, Idaho Code, for the judicial determination of both the extent and priority of the rights of a person to the use of water from any water system within the state of Idaho which has been adjudicated in a general adjudication or in a private adjudication.
“Stock watering use” means the use of water solely for livestock or wildlife where the total diversion is not in excess of thirteen thousand (13,000) gallons per day.
“Water system” includes all rivers, streams, lakes, springs, ground waters, or other sources within this state, including any river system or other source, as used in 43 U.S.C. section 666.

History.

I.C.,§ 42-1401A, as added by 1986, ch. 220, § 3, p. 558 and ch. 234, § 1, p. 645; am. 1990, ch. 319, § 6, p. 870; am. 1994, ch. 454, § 2, p. 1443; am. 1996, ch. 186, § 1, p. 584; am. 1997, ch. 374, § 2, p. 1192.

CASE NOTES

Legislative authority. Party.

Legislative Authority.

While Idaho Const., Art. II prohibits the legislature from usurping powers properly belonging to the judicial department, it also prohibits the judiciary from improperly invading the province of the legislature; thus, the 1994 legislative revisions and amendments to the Snake River Basin Adjudication (SRBA) statutes, which redefined the role of the director of the Idaho department of water resources and the role of various state agencies in the SRBA, were a proper exercise of legislative authority to the extent that the statutes prescribe substantive law and do not conflict with rules of the court. State ex rel. Higginson v. United States, 128 Idaho 246, 912 P.2d 614 (1995).

Party.

Canal companies could not seek action for declaratory judgment of administrative rules concerning conjunctive management of ground and surface water rights for the entire state adopted by Idaho department of water resources (IDWR) in Snake River basin adjudication (SRBA), since IDWR must be a party to the action and IDWR cannot be a party to SRBA. Twin Falls Canal Co. v. Idaho Dep’t of Water Resources, 127 Idaho 688, 905 P.2d 89 (1995).

Standing to Sue.

The Fort Hill water users association did not have standing to sue under this section, because it had only a contractual right to the use of the water and not an ownership right therein. Fort Hall Water Users Ass’n v. United States, 129 Idaho 39, 921 P.2d 739 (1996).

Cited

United States v. Black Canyon Irrigation Dist. (In re SRBA Case No. 39576), 163 Idaho 54, 408 P.3d 52 (2017); Black Canyon Irrigation Dist. v. State (In re SRBA Case No. 39576), 163 Idaho 144, 408 P.3d 899 (2018); First Sec. Corp. v. Belle Ranch, LLC, — Idaho —, 451 P.3d 446 (2019).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

Understanding the 1984 Swan Falls Settlement, Clive J. Strong & Michael C. Orr. 52 Idaho L. Rev. 223 (2016).

§ 42-1401B. Role of the director in an adjudication.

The director’s role under this chapter is as an independent expert and technical assistant to assure that claims to water rights acquired under state law are accurately reported in accordance with the procedures of chapter 14, title 42, Idaho Code. The director shall make recommendations as to the extent of beneficial use and administration of each water right under state law and may use uniform parameters for quantification of beneficial use recommended for rights within climatic regions of the state.
The director shall not be a claimant on behalf of the state or any subdivision of the state in an adjudication.
The director shall not be a party to an adjudication.

History.

I.C.,§ 42-1401B, as added by 1994, ch. 454, § 3, p. 1443.

CASE NOTES

Declaratory Judgment of Administrative Rules.

Legislative Authority.

While Idaho Const., Art. II prohibits the legislature from usurping powers properly belonging to the judicial department, it also prohibits the judiciary from improperly invading the province of the legislature; thus, the 1994 legislative revisions and amendments to the Snake River basin adjudication (SRBA) statutes, which redefined the role of the director of the Idaho department of water resources and the role of various state agencies in the SRBA, were a proper exercise of legislative authority to the extent that the statutes prescribe substantive law and do not conflict with rules of the court. State ex rel. Higginson v. United States, 128 Idaho 246, 912 P.2d 614 (1995).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

The Role of the Idaho Department of Water Resources in the Snake River Basin Adjudication, Phillip J. Rassier. 52 Idaho L. Rev. 289 (2016).

§ 42-1401C. Role of state agencies other than the Idaho department of water resources in an adjudication.

Each state agency, and the Idaho water resource board may file a claim and appear separately in any adjudication through the attorney general. This section shall not apply to the Idaho department of water resources.
The attorney general may appear in any adjudication and shall represent the position of the state of Idaho.

History.

I.C.,§ 42-1401C, as added by 1994, ch. 454, § 4, p. 1443.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Water resource board,§ 42-1732 et seq.

CASE NOTES

Legislative Authority.

While Idaho Const., Art. II prohibits the legislature from usurping powers properly belonging to the judicial department, it also prohibits the judiciary from improperly invading the province of the legislature; thus, the 1994 legislative revisions and amendments to the Snake River basin adjudication (SRBA) statutes, which redefined the role of the director of the Idaho department of water resources and the role of various state agencies in the SRBA, were a proper exercise of legislative authority to the extent that the statutes prescribe substantive law and do not conflict with rules of the court. State ex rel. Higginson v. United States, 128 Idaho 246, 912 P.2d 614 (1995).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

§ 42-1401D. Jurisdictional limitation.

Review of an agency action of the department of water resources, which is subject to judicial review or declaratory judgment under the provisions of chapter 52, title 67, Idaho Code, shall not be heard in any water rights adjudication proceeding commenced under this chapter. Venue and jurisdiction over any such action pending on the effective date of this section, or initiated subsequent thereto, shall be in the district court as authorized under the provisions of section 67-5272, Idaho Code, without regard to any other provision of law.

History.

I.C.,§ 42-1401D, as added by 2001, ch. 31, § 2, p. 47.

STATUTORY NOTES

Legislative Intent.

Section 1 of S.L. 2001, ch. 31, read: “A principal goal of the Legislature is the timely completion of the pending Snake River Basin Adjudication resulting in a judicial determination of all water rights within the Snake River basin in accordance with the provisions of Chapter 14, Title 42, Idaho Code. A recent judicial decision holding that the Snake River Basin Adjudication district court has exclusive jurisdiction to provide judicial review of administrative actions by the Department of Water Resources affecting rights to the use of water in the Snake River basin potentially frustrates this legislative goal.

“It is and has been the intention of the Legislature that the district court presiding over a water rights adjudication proceeding under the provisions of Chapter 14, Title 42, Idaho Code, exercises unique jurisdiction over the ‘judicial determination’ of the elements of the water rights subject to the court’s jurisdiction. Further, it is and has been the intention of the Legislature that judicial review of an agency action by the Department of Water Resources under the provisions of Chapter 52, Title 67, Idaho Code, does not provide a judicial determination of the elements of a water right. Rather, a judicial review proceeding potentially results only in confirmation of an administrative determination of one (1) or more elements of a water right, which then shall constitute prima facie evidence of those elements consistent with the provisions of Section 42-220, Idaho Code. In order not to burden and delay the adjudication proceeding with actions for judicial review, the Legislature finds it necessary to enact the following statutory amendment, which is intended to apply to all actions for judicial review pending on the date of enactment as well as future actions.”

Compiler’s Notes.

The phrase “the effective date of this section” refers to the effective date of S.L. 2001, ch. 31, § 2, which was effective March 2, 2001.

Effective Dates.

Section 3 of S.L. 2001, ch. 31 declared an emergency. Approved March 2, 2001.

CASE NOTES

Exhaustion.

Water rights claimants must seek redress administratively through the director of the department of water resources before raising the issue in the courts. McInturff v. Shippy (In re CSRBA Case No. 49576), 165 Idaho 489, 447 P.3d 937 (2019).

§ 42-1402. Decreed rights appurtenant to land — Water rights established under federal law excepted.

In allotting the waters of any water system by the district court according to the rights and priorities of those using such waters, such allotment shall be made to the use to which such water is beneficially applied, except where water rights established under federal law are involved, in which case the allotment shall be made in accordance with federal law. The right confirmed by such decree or allotment shall be appurtenant to and shall become a part of the land on which the water is used, and such right will pass with the conveyance of such land, and such decree shall describe the land to which such water shall become so appurtenant. The amount of water so allotted shall never be in excess of the amount actually used for beneficial purposes for which such right is claimed, or in the case of a water right established under federal law, in excess of that amount determined by federal law.

History.

1903, p. 223, § 38; reen. R.C., § 4621; am. 1913, ch. 35, § 1, p. 133; C.L., § 4621; C.S., § 7033; I.C.A.,§ 41-1302; am. 1969, ch. 279, § 2, p. 822; am. 1986, ch. 220, § 4, p. 558; am. 1994, ch. 454, § 5, p. 1443.

STATUTORY NOTES

Cross References.

Issuance of license,§ 42-219.

Proof of application to beneficial use,§ 42-217.

CASE NOTES

Application of Proviso.

Proviso in this section was applicable only where litigant was in position to profit by the doctrine of relation, and one claiming by appropriation merely, without compliance with the statutes of this state, was not so entitled. Reno v. Richards, 32 Idaho 1, 178 P. 81 (1918).

Application of Section.

This section and cognate sections have application only where there is a full compliance with the statutes, and in the absence of such full compliance with respect to appropriation of water, the doctrine of relation cannot be invoked. Bachman v. Reynolds Irrigation Dist., 56 Idaho 508, 55 P.2d 1314 (1936).

Carey Act Contracts.

Provision of this section limiting allotment to amount actually used for beneficial purposes is read into contracts under Carey Act. Idaho Irrigation Co. v. Gooding, 265 U.S. 518, 44 S. Ct. 618, 68 L. Ed. 1157 (1924); Sallee v. Commonwealth Trust Co., 8 F.2d 227 (9th Cir. 1925).

Compliance With Statute Required.

In the absence of the issuance of a permit and compliance therewith under this and other sections, an irrigation district was not entitled to prove beneficial use of any additional amount of water from a natural stream. Bachman v. Reynolds Irrigation Dist., 56 Idaho 508, 55 P.2d 1314 (1936).

Description of Land.

Land to which decreed right is appurtenant or on which it is used need not always be described in decree, particularly in case of rental rights. Farmers’ Coop. Ditch Co. v. Riverside Irrigation Dist., 14 Idaho 450, 94 P. 761 (1908).

§ 42-1403. Certified copies of allotments.

It shall be the duty of the clerk of the district court in each of the counties of this state to prepare at the expense of the county, and transmit without delay to the department of water resources by express or registered mail, a certified copy of the allotments of the various streams, made by the district court and now on file in the offices of the district court in the various counties of the state: provided, that said clerk may, in place of such transcript, transmit such original records of such decrees as are recorded in books kept for that purpose. Immediately upon receipt of said transcripts or said original records, it shall be the duty of the department to record them in its files, and to classify and arrange said decrees by placing all the rights to water of one stream and its tributaries together, and the department shall send to each watermaster a certified copy of the allotments made by the district court of all the streams within his district. And when an allotment of the waters of a stream shall be made by the district court, the clerk of such district court shall immediately prepare, at the expense of the county, and transmit to the department of water resources, a certified copy of the decree allotting such waters. The director may issue an abstract of decreed water right which shall describe the elements of a water right as contained in the water right decree.

History.

1903, p. 223, § 39; reen. R.C. & C.L., § 4622; C.S., § 7034; I.C.A.,§ 41-1303; am. 1994, ch. 454, § 6, p. 1443.

STATUTORY NOTES

Compiler’s Notes.

§ 42-1404. Private actions for adjudication of water rights.

Any claimant may file suit in the district court for the county in which the point of diversion or place of use of the claimed right is located for the purpose of adjudicating rights to the use of water from any water system for which a general adjudication has not been commenced or completed. The claimant shall set forth in his complaint the claimed water right in a notice of claim form furnished by the director. The claimant shall join all claimants of rights to the use of water from the water system whose joinder is necessary to resolve the dispute over rights to the use of water from the water system. The claimant shall also publish notice of the action in the manner specified in subsection (2)(b) of section42-1408A [42-1408], Idaho Code.
Any party who may be injured and who objects to the water right claimed by the claimant shall, within forty-five (45) days of the date of first publication of notice, file with the district court written notice of such objection stating the reasons for the objection. A copy of the objection shall be served upon the claimant, all other parties of record in the action, the watermasters, and the director.
Any claimant of a right to the use of water from the water system being adjudicated shall be entitled to intervene and have the claimed right adjudicated. Any such claimant requesting intervention shall set forth the claimed water right in a notice of claim form furnished by the director. The court may request a director’s report of the director, as described in section 42-1411, Idaho Code, as to those rights to be determined. The director shall advise the district court as to whether the director will commence an examination of the water system in accordance with the provisions of section 42-1410, Idaho Code. If the director elects not to conduct an examination, the adjudication shall proceed based on the description of the water right in the notice of claim form. Each claimant shall have the burden of proof of establishing each element of a water right described in the claimants notice of claim form.
The director shall provide to the court an estimate of the costs that will be incurred in conducting the examination and in preparing the director’s report and an approximate time when the director’s report will be completed. The court shall order the claimants of the rights to be determined to submit a notice of claim to the director in accordance with section 42-1409, Idaho Code, except that the fee as described in section 42-1414, Idaho Code, shall not apply. Upon the completion of claims-taking, the director shall bill each claimant for a claim fee equal to that claimant’s proportionate share of the total estimated cost to the state relative to that claimant’s share of the total amount of water claimed by all claimants or for an amount as determined by the court. Any notice of claim for a water right for which the fee is unpaid after thirty (30) days from billing by the director shall be incomplete and may be rejected. Prior to filing of the report with the court, the claimants shall pay the balance of the department’s verified costs or be refunded any unused estimated costs advanced to the department in the same proportion as described above. In the event that a claimant shall contest the department’s costs, the court shall then determine the reasonable costs to be paid by each claimant.
Notice of the filing of the director’s report shall be given and objections to the director’s report shall be made and heard as provided in sections 42-1411 and 42-1412, Idaho Code. (6) The decree, which shall be entered pursuant to section 42-1412, Idaho Code, shall contain or incorporate a statement of each element of a water right as stated in subsection (2) of section 42-1411, Idaho Code, as applicable. The decree shall also determine all other matters necessary for the efficient administration of the water rights. The decree shall be conclusive as to the rights determined in the proceeding only as to those persons party to the proceeding.

(7) Any party who has appeared and is aggrieved by the decree of the district court may appeal in accordance with the Idaho appellate rules.

History.

I.C.,§ 42-1404, as added by 1986, ch. 220, § 5, p. 558; am. 1994, ch. 454, § 7, p. 1443.

STATUTORY NOTES

Prior Laws.

Former§ 42-1404, which comprised S.L. 1903, p. 223, § 40; reen. R.C. & C.L., § 4623; C.S., § 7035; I.C.A.,§ 41-1304, was repealed by S.L. 1969, ch. 279, § 3.

Compiler’s Notes.

The bracketed reference “42-1408” in subsection (1) was inserted by the compiler, since §42-1408A was amended and redesignated as §42-1408 by S.L. 1994, ch. 454, § 14.

CASE NOTES

Legislative Intent.

The Idaho legislature intended to prevent private adjudications of claimed water rights to water systems for which a general adjudication has been commenced or completed. Devil Creek Ranch, Inc. v. Cedar Creek Reservoir & Canal Co., 126 Idaho 202, 879 P.2d 1135 (1994).

Real Property Right.

The right to appropriate water is a real property right separate and apart from the property rights in the land from which the water has been diverted. Bear Island Water Ass’n v. Brown, 125 Idaho 717, 874 P.2d 528 (1994).

Right of Action.

Water Within a Well.

Until all of the underlying issues of fraud and self-dealing were determined by the trial court there was no determination necessary of any essential element of a water right, and the Snake River adjudication court did not have jurisdiction until the underlying issues were decided. Bischoff v. Salem Union Canal Co., 130 Idaho 455, 943 P.2d 45 (1997). Water Within a Well.

Although the parties filed claims to adjudicate their respective right to the real property comprising a water well, neither party filed an action for adjudication of any water rights in compliance with this section; therefore, district court’s order granting exclusive water rights to one party was vacated. Bear Island Water Ass’n v. Brown, 125 Idaho 717, 874 P.2d 528 (1994).

Snake River Basin Adjudication.

The Snake River basin adjudication (SRBA) district court is, in effect, a separate division of the district courts and exercises the unique jurisdiction given it by the legislature. Thus, once SRBA has commenced, jurisdiction to resolve all of the water rights claims within the scope of the general adjudication is in the SRBA district court only. Walker v. Big Lost River Irrigation Dist., 124 Idaho 78, 856 P.2d 868 (1993).

Trial court lacked jurisdiction to grant a writ of mandate and a permanent injunction compelling irrigation district to deliver stored water outside of irrigation district’s boundaries, where the case required the trial court to determine the right to the use of water, which could only be addressed as part of the Snake River Basin Adjudication (SRBA). Walker v. Big Lost River Irrigation Dist., 124 Idaho 78, 856 P.2d 868 (1993).

Cited

Sagewillow, Inc. v. Idaho Dep’t of Water Resources, 135 Idaho 24, 13 P.3d 855 (2000).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

§ 42-1405. General adjudication — Public interest.

Five (5) or more or a majority of the users of water from any water system may petition the director to request the attorney general to file an action to commence a general adjudication. If the director deems that the public interest and necessity will be served by a determination of the water rights of that water system, the director shall request the attorney general to file an action to commence the general adjudication.
If the director deems that the public interest and necessity will be served by a determination of the water rights of any water system, the director, upon his own initiative, may request the attorney general to file an action to commence a general adjudication.

History.

I.C.,§ 42-1406, as added by 1969, ch. 279, § 4, p. 822; am. 1986, ch. 220, § 7, p. 558; am. and redesig. 1994, ch. 454, § 10, p. 1443.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Compiler’s Notes.

This section was formerly compiled as§ 42-1406.

Former§ 42-1405 was amended and redesignated as§ 42-1424.

CASE NOTES

Combining Districts.

Where the department of water resources wishes to combine two water districts on the same creek into one and it determines that there are insufficient uncontested rights to develop a workable plan for water distribution, it should proceed to an adjudication pursuant to this section before combining the two districts. Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977).

Fees Charged to United States.

The McCarran Amendment (43 U.S.C.S. § 666(a)) does not waive the United States’ sovereign immunity from fees required by§ 42-1414. United States v. Idaho ex rel. Dir., Idaho Dep’t of Water Resources, 508 U.S. 1, 113 S. Ct. 1893, 123 L. Ed. 2d 563 (1993).

Cited

Olson v. Idaho Dep’t of Water Resources, 105 Idaho 98, 666 P.2d 188 (1983).

RESEARCH REFERENCES

C.J.S.

§ 42-1405a. Construction of §§ 42-1404 and 42-1406. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised 1986, ch. 220, § 29, p. 558, was repealed by S.L. 1994, ch. 454, § 9, effective April 12, 1994.

§ 42-1406. General adjudication — Contents of petition.

A petition for a general adjudication shall contain among other things, the following:
1. a description of the proposed boundaries of the water system to be adjudicated and administered;
2. a statement of why the public interest and necessity would be served by a general adjudication;
3. a list of counties where the water system proposed to be adjudicated and administered is located and a designation of whether all or only a portion of the county is included within the boundaries of the proposed general adjudication;
4. a description of the general method proposed to ascertain and to serve claimants not disclosed following completion of the service required by paragraphs (a) through (d) of subsection (2) of section 42-1408, Idaho Code; and
5. a prayer for relief requesting the district court to enter an order that commences the general adjudication.
A petition for entry of an order commencing a general adjudication shall be captioned: “In Re the General Adjudication of Rights to the Use of Water From the . . . . . . . . . . . . . . . . Water System.” Such action shall have no other caption.

History.

I.C.,§ 42-1407, as added by 1986, ch. 220, § 8, p. 558; am. and redesig. 1994, ch. 454, § 12, p. 1443.

STATUTORY NOTES

Compiler’s Notes.

This section was formerly compiled as§ 42-1407.

Former§ 42-1406 was amended and redesignated as§ 42-1405.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

§ 42-1406A. Snake River basin adjudication

Commencement. [Uncodified.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised I.C.,§ 42-1406A, as added by 1985, ch. 18, § 1, p. 27; am. 1985, ch. 118, § 1, p. 286, was uncodified and amended by S.L. 1994, ch. 454, § 11, effective April 12, 1994.

As so uncodified and amended§ 42-1406A reads: “(1) Effective management in the public interest of the waters of the Snake River basin requires that a comprehensive determination of the nature, extent and priority of the rights of all users of surface and ground water from that system be determined. Therefore, the director of the department of water resources shall petition the district court to commence an adjudication within the terms of the McCarran amendment, 43 U.S.C. section 666, of the water rights of the Snake River basin either through initiation of a new proceeding or the enlargement of an ongoing adjudication proceeding. The petition shall describe:

“(a) The boundaries of the system within the state to be adjudicated;

“(b) Any class of water users within the system and the boundaries of any hydrologic sub-basins within the system for which the director intends to proceed separately with respect to the actions required or authorized to be taken pursuant to sections 42-1408 through 42-1414, Idaho Code; and

“(c) The uses of water, if any, within the system that are recommended to be excluded from the adjudication proceeding.

“(2) Upon issuance of an order by the district court which:

“(a) Authorizes the director to commence an investigation and determination of the various water rights to be adjudicated within the system;

“(b) Defines the boundaries of the system within the state to be adjudicated;

“(c) Defines the classes of water users within the system and the boundaries of any hydrologic sub-basins within the system for which proceedings may advance separately pursuant to sections 42-1408 through 42-1414, Idaho Code; and

“(d) Defines any uses of water excluded from the adjudication proceedings; the adjudication shall proceed in the manner provided under the provisions of chapter 14, title 42, Idaho Code, with the exception of section 42-1406, Idaho Code.

“(3) On November 19, 1987, the fifth judicial district court in and for the county of Twin Falls issued an order commencing an adjudication of the Snake River basin pursuant to this section. By this act [S.L. 1994, ch. 454], the legislature is amending the procedures that govern that proceeding. To the extent that the provisions of this section conflict with other provisions of this chapter, as amended, such other provisions shall govern.”

CASE NOTES

Exclusive jurisdiction. Public trust doctrine.

Exclusive Jurisdiction.

Public Trust Doctrine.

Where conservation groups petitioned for leave to intervene in the Snake River basin adjudication (SRBA) to represent the interests of the public through the public trust doctrine, the district court did not err in denying the conservation groups’ motion to intervene, concluding that the public trust doctrine is not an element of a water right used to determine the priority of that water right in relation to the competing claims of other water right claimants. Idaho Conservation League, Inc. v. State, 128 Idaho 155, 911 P.2d 748 (1995).

§ 42-1406B. Northern Idaho water rights adjudications — Commencement.

Effective management of the waters of northern Idaho requires that a comprehensive determination of the nature, extent and priority of the rights of users of surface and ground water be determined. Therefore, the director of the department of water resources is authorized to petition the district court to commence adjudications within the terms of the McCarran amendment, 43 U.S.C. section 666, of the water rights from surface water and ground water sources in northern Idaho through initiation of three (3) proceedings, provided that each petition includes a request for the deferral of the adjudication of domestic and stock water rights as defined by subsections (4) and (11) of section 42-1401A, Idaho Code, and a request that a commencement order be issued only if the court determines it is possible to defer the adjudication of domestic and stock water rights as defined by subsections (4) and (11) of section 42-1401A, Idaho Code, within the terms of the McCarran amendment. Separate petitions shall be filed for water rights adjudications for each of the following river basins, and related ground water sources whether or not hydraulically connected to a surface water source, within Idaho: the Coeur d’Alene-Spokane river basin, the Palouse river basin, and the Clark Fork-Pend Oreille river basins, which do not include basin 98. The filing of each petition shall be contingent on legislative funding approval. Each petition shall describe the boundaries of the water source or water sources to be adjudicated.
The adjudication shall be brought in any district court in which any part of the water source is located or before a court of special jurisdiction for water right adjudications. Unless otherwise ordered by the supreme court, special jurisdiction for the water rights general adjudications authorized by this section shall reside in the Snake River Basin Adjudication district court of the fifth judicial district of the state of Idaho, in and for the county of Twin Falls. The clerk of the district court in which the petition is filed shall send to the supreme court a true and certified copy of the petition. The supreme court, by order, shall assign the judge to preside over the general adjudication. Venue of the general adjudication shall be determined by order or rule of the supreme court and venue of hearings under the general adjudication shall be determined by order of the presiding judge.
Upon issuance of an order by the district court which authorizes the director to commence an investigation and determination of the various water rights to be adjudicated from the water source or water sources, and which defines the boundaries of the source or sources within the state to be adjudicated, the director of the department of water resources shall proceed in the manner provided under the provisions of chapter 14, title 42, Idaho Code, to the extent not inconsistent with the provisions of this section.

History.

I.C.,§ 42-1406B, as added by 2006, ch. 222, § 1, p. 661; am. 2008, ch. 149, § 1, p. 434; am. 2008, ch. 159, § 1, p. 456.

STATUTORY NOTES

Amendments.

This section was amended by two 2008 acts which appear to be compatible and have been compiled together.

The 2008 amendment, by ch. 149, in subsection (1), deleted “all” preceding “users of surface” in the first sentence, and in the second sentence, substituted “is authorized to petition” for “shall petition” and added the proviso at the end.

The 2008 amendment, by ch. 159, in the third sentence in subsection (1), deleted “Kootenai and” preceding “Clark Fork-Pend Oreille river basins” and added “which do not include basin 98.”

Effective Dates.

Section 2 of S.L. 2008, ch. 149 declared an emergency. Approved March 17, 2008.

Section 2 of S.L. 2008, ch. 159 declared an emergency retroactively to July 1, 2006 and approved March 17, 2008.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

A Permanent Water Court Proposal for a Post-General Stream Adjudication World, John E. Thorson. 52 Idaho L. Rev. 17 (2016).

§ 42-1406C. Bear river water rights adjudication — Commencement.

Effective management of the waters of the Bear River basin requires that a comprehensive determination of the nature, extent, and priority of the rights of all users of surface and ground water be determined. Therefore, the director of the department of water resources is authorized to petition the district court to commence an adjudication within the terms of the McCarran amendment, 43 U.S.C. 666, of the water rights from surface water and ground water sources in the Bear River basin. The petition shall describe the boundaries of the water source(s) to be adjudicated and contain a request that a commencement order be issued only if the court determines it is possible to defer the adjudication of domestic and stock water rights as defined by subsections (4) and (11) of section 42-1401A, Idaho Code, within the terms of the McCarran amendment.
For purposes of adjudicating water rights, the Bear River basin is defined as all waters of the state of Idaho, both ground water and surface water, flowing into or toward the Bear River or flowing toward the Great Salt Lake in the Great Basin.
The adjudication shall be brought before a court of special jurisdiction for water right adjudications. Unless otherwise ordered by the supreme court, special jurisdiction for the general adjudication authorized by this section shall reside in the Snake River Basin Adjudication district court of the fifth judicial district of the state of Idaho, in and for the county of Twin Falls. The clerk of the district court in which the petition is filed shall send to the supreme court a true and certified copy of the petition. The supreme court, by order, shall assign the judge to preside over the general adjudication. Venue of the general adjudication shall be determined by order or rule of the supreme court, and venue of hearings under the general adjudication shall be determined by order of the presiding judge.
Once the district court issues an order that authorizes the director to commence an investigation and determination of the water rights within the boundaries of the adjudication and defines the boundaries of the adjudication, the director of the department of water resources shall proceed in the manner provided under the provisions of chapter 14, title 42, Idaho Code, to the extent not inconsistent with the provisions of this section.

History.

I.C.,§ 42-1406C, as added by 2020, ch. 50, § 1, p. 116.

STATUTORY NOTES

Cross References.

Director or department of water resources,§ 42-1801 et seq.

Compiler’s Notes.

The “s” enclosed in parentheses so appeared in the law as enacted.

§ 42-1407. General adjudication — Venue — Notice of filing — Commencement order.

A general adjudication shall be brought in any district court in which any part of the water system within the state of Idaho is located. The clerk of the district court in which the petition is filed shall send to the supreme court a true and certified copy of the petition. The supreme court, by order, shall assign the judge to preside over the general adjudication. Venue of the general adjudication shall be determined by order or rule of the supreme court and venue of hearings under the general adjudication shall be determined by order of the presiding judge.
The director shall prepare, in plain and concise language, and publish a notice of filing of a petition for entry of an order commencing a general adjudication for three (3) consecutive weeks in a newspaper of general circulation published in each county in which any part of the water system proposed to be adjudicated is located. If there is no newspaper published within a county, then the notice shall be published in a newspaper having general circulation in that county. The date set for hearing on the petition shall not be less than twenty (20) days after the last date of publication. The director shall serve the notice of filing a petition on the United States and on the state of Idaho. The director shall file affidavit(s) of service of the notice of filing with the district court upon completion of service.
The notice of filing shall contain:
1. a description of the boundaries of the water system proposed for the general adjudication;
2. a statement of the date, place, and time of hearing before the district court;
3. a concise statement of the matters proposed to be considered before the district court; and
4. a statement that the district court will hear evidence and legal argument from any person in response to any matter raised by the petition.
With respect to a general adjudication commenced pursuant to section 42-1405, Idaho Code, if the district court determines that the public interest and necessity will be served by a general adjudication, the district court shall enter an order that includes the following:
1. a provision that commences the general adjudication;
2. a description of the boundaries of the water system for which a general adjudication is commenced;
3. a list of counties where the water system to be adjudicated and administered is located and a designation of whether all or only a portion of the county is included within the boundaries of the general adjudication;
4. a provision that requires all claimants to file a notice of claim or negotiated agreement for all water rights from the water system, except that the court may exclude those types of water rights designated in paragraph (a) of subsection (1) of section 42-1420, Idaho Code;
5. a determination of the method of service for claimants not disclosed following completion of the service required by paragraphs (a) through (d) of subsection (2) of section 42-1408, Idaho Code; and
6. a statement that the files of the district court will contain affidavits of service and other documents stating the persons served with a copy of the notice of order commencing the general adjudication. (5) Upon entry of a commencement order, the general adjudication shall proceed in accordance with this chapter.

(6) Promptly upon entry of the commencement order, the clerk of the district court shall send a certified copy of the order to the director, and shall serve notice of entry of the order on all persons appearing before the court in accordance with the Idaho rules of civil procedure.

History.

I.C.,§ 42-1408, as added by 1986, ch. 220, § 9, p. 558; am. and redesig. 1994, ch. 454, § 13, p. 1443.

STATUTORY NOTES

Prior Laws.

Other former§§ 42-1407 to 42-1413, which comprised 1969, ch. 279, §§ 5 to 11; am. 1978, ch. 328, § 1; am. 1980, ch. 150, § 1; am. 1981, ch. 48, § 1; am. 1985, ch. 18, § 2, were repealed by S.L. 1986, ch. 220, § 1.

Compiler’s Notes.

This section was formerly compiled as§ 42-1408.

Former§ 42-1407 was amended and redesignated as§ 42-1406.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

§ 42-1408. Service of notice of order commencing a general adjudication.

Upon entry of a district court’s order commencing a general adjudication, the director shall prepare a notice of order, using plain and concise language, that contains the following information or enclosures:
1. an order commencing a general adjudication has been entered, the date of entry of the order, and the district court that entered the order;
2. an illustration of the boundaries of the water system to be adjudicated and administered;
3. that section 42-1409, Idaho Code, requires in a general adjudication all claimants, except as specifically excluded by law, to file for each water right, a notice of claim on a form furnished by the director; failure to file a required notice of claim will result in a court determination that no water right exists for the use of water for which the required notice of claim was not filed;
4. a notice of claim is required for any water right license and for any water right permit on file for which the director requires a permit holder to file a notice of claim in accordance with section 42-1409, Idaho Code; a notice of claim may be filed for any other water right permit;
5. a notice of claim is not required for a water right evidenced by an application on file with the department;
6. a notice of claim, if the court order excludes any uses from an adjudication, may be filed for the excluded use prior to the filing of the director’s report with the district court and the right will be determined, even though a notice of claim is not required;
7. a notice of claim is not required for any person who receives water solely by virtue of ownership of shares of stock in, or by being located within the boundaries of, a water delivery organization, if the water delivery organization holds legal title to the water right and if the water delivery organization files a notice of claim;
8. the date set by the director for filing a timely notice of claim, which shall not be less than ninety (90) days after service;
9. that section 42-1409A, Idaho Code, imposes substantial restrictions on the filing of amended or late notices of claim;
10. the locations at which the notice of claim forms will be available;
11. section 42-1414, Idaho Code, requires each claimant, other than those exempted by federal law, to pay a variable fee to the director with a notice of claim; failure to pay the fee will result in rejection of the notice of claim; failure to file a timely notice of claim will result in the assessment of a late fee in the amount of fifty dollars ($50.00) or fifteen per cent (15%) of the original filing fee, whichever is greater;
12. section 42-1409, Idaho Code, requires that all purchasers of a water right inquire of the director whether a notice of claim has been filed, and if not, to file a notice of claim, except as specifically excluded by law, and that all claimants and purchasers provide the director written notice of any change in ownership, along with some evidence of ownership or of any change in mailing address; and
13. the files of the district court will contain affidavits of service or other documents stating the persons served with a copy of the notice of order.
The director shall serve copies of the notice of order as follows: (a) the director shall serve the notice of order on the state of Idaho and the United States;
The director shall send the notice of order by ordinary mail to all persons who submit a written request to the director to be notified of the commencement of an adjudication. The director may circulate copies in any additional manner the director deems appropriate.
Upon expiration of the period for filing notices of claims, the director shall conduct a second round of service in conformance with this subsection. The director shall compare the notices of claims with department records and other information reasonably available to determine whether there are any rights to water from the water system for which no notice of claim was filed. In the event the director determines that not all claimants have filed claims, the director shall make a reasonably diligent effort in accordance with the court order to determine the land to which the possible claim is appurtenant, the last known owner of that land, and the last known address of that owner. The director shall prepare a second round notice of order. The director shall serve this notice on the last known owner in accordance with the court order. The notice shall contain the information specified in subsection (1) of this section, except that the notice shall state a final date for filing notices of claims. The final date shall be an additional period of time, in no case less than ninety (90) days from the date the notice is served, in which the notice of claim must be received by the director.
The director shall file with the district court such proof of service as may be required to demonstrate compliance with the above requirements.

(b) the director shall serve the notice of order on claimants other than the persons in paragraph (a) of subsection (2) of this section, initially by publication once a week for three (3) consecutive weeks in a newspaper of general circulation published in each county in which any part of the water system, which is the subject of the general adjudication, is located. If there is no newspaper published within a county, then the copies shall be published in a newspaper having general circulation in that county;

(c) the director shall post the notice of order in each county courthouse, county recorder’s office, and county assessor’s office in which any part of the water system is located. The director shall complete the posting on or before the date of the last publication within each county;

(d) the director shall serve the notice of order by ordinary mail on each person listed as owning real property on the real property assessment roll within the boundaries of the water system to be adjudicated at the address listed on the real property assessment roll; and

(e) the director shall file a copy of the notice of order commencing a general adjudication in the office of the county recorder in each county in which any part of the water system is located; notwithstanding the provisions of section 5-505, Idaho Code, the notice, from the time it is filed with the recorder for record, is constructive notice of the contents thereof within the county in which the notice is recorded, to subsequent purchasers and mortgagees.

History.

I.C.,§ 42-1408A, as added by 1986, ch. 220, § 10, p. 558 and 1986, ch. 230, § 2, p. 621; am. 1991, ch. 84, § 1, p. 188; am. and redesig. 1994, ch. 454, § 14, p. 1443.

STATUTORY NOTES

Prior Laws.

Compiler’s Notes.

This section was formerly compiled as§ 42-1408A.

Former§ 42-1408 was amended and redesignated as§ 42-1407.

Section 27 of S.L. 1986, ch. 220 read: “The provisions of section 10 of this act, which enacts section 42-1408A, Idaho Code, shall not apply to any adjudication in which an order of joinder was entered prior to July 1, 1986, unless the boundaries of the water system are changed by court order after July 1, 1986.”

Effective Dates.

Section 2 of S.L. 1991, ch. 84 declared an emergency. Approved March 26, 1991.

CASE NOTES

Jurisdiction Over United States.

The McCarran Amendment, 43 U.S.C.S. 666(a) waives sovereign immunity and subjects the United States to the laws of Idaho in the Snake River basin adjudication including the payment of filing fees. Idaho Dep’t of Water Resources v. United States, 122 Idaho 116, 832 P.2d 289 (1992).

Loss of Claim.

Snake River Basin Adjudication (SRBA) court ruled properly in failing to apply the requirements of Idaho Civil Rule 55(b)(2) to a proceeding removing a water right from a parcel of land, because the default notice provisions of the rule did not apply. The SRBA court’s disallowal of an unclaimed water right was not entered pursuant to that rule, and was not a default judgment; rather, the disallowal was a statutory action that resulted in the water right being lost. Eden v. State (In re SRBA Case No. 39576), 164 Idaho 241, 429 P.3d 129 (2018).

Cited

First Sec. Corp. v. Belle Ranch, LLC, — Idaho —, 451 P.3d 446 (2019).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

The Role of the Idaho Department of Water Resources in the Snake River Basin Adjudication, Phillip J. Rassier. 52 Idaho L. Rev. 289 (2016).

§ 42-1408A. [Amended and Redesignated.]

STATUTORY NOTES

Compiler’s Notes.

Former§ 42-1408A was amended and redesignated as§ 42-1408 by § 14 of S.L. 1994, ch. 454.

§ 42-1409. Notice of claim.

The director shall prepare and furnish on request a standard notice of claim form.
1. the name and address of the claimant;
2. the source of water;
3. the quantity of water claimed:
  1. the quantity of water claimed to be used for water rights acquired under state law shall describe the rate of diversion or, for an instream flow claim, a rate of water flow in cubic feet per second or the annual volume of diversion of water for use or storage in acre-feet per year, or both;
  2. the quantity of water claimed for water rights established under federal law shall describe for each and every purpose the rate of present and future water diversion or, in the case of an instream flow claim the rate of flow in cubic feet per second or annual volume of present and future diversion in acre-feet per year or both;
4. the date of priority claimed:
  1. the date of priority claimed for water rights acquired under state law shall be from any license, permit, or decree; or if the right is not based upon a license, permit, or decree, then the date when the water was first applied to beneficial use;
  2. the date of priority claimed for water rights established under federal law shall be determined in accordance with federal law;
5. the number thereof, if founded upon a right on file with the department; or if the right is founded upon judicial decree not on file with the department, then the title of the court and cause, number of the action and the date of entry;
6. the legal description of the existing point(s) of diversion; if the claim is for an instream flow, then a legal description of the beginning and ending points of the claimed instream flow;
7. the purpose(s) of use and the period of use:
  1. the purpose(s) of use for water rights acquired under state law shall describe each purpose of use and the period of the year when water is used for each purpose;
  2. the purpose(s) of use for a water right established under federal law shall describe the purposes for which the water included in the claim is presently being used, if at all, and the period of the year when water is necessary for the designated purposes;
  3. the legal description of the place of use for a water right established under federal law shall describe the federal reservation and the existing or proposed place of use for each consumptive use;
8. a legal description of the place of use:
9. the legal description of the place of use for water rights acquired under state law shall describe the land where the water is beneficially used; if one (1) of the purposes of use is irrigation, then the number of irrigated acres within each forty (40) acre subdivision, except as provided in section 42-219, Idaho Code;
  1. the dates of any changes or enlargements in use for water rights acquired under state law, including the dimension of the diversion works as originally constructed and as enlarged;
10. conditions on the exercise of any water right included in any decree, license, approved transfer application or other document; and (k) such remarks and other matters as are necessary for definition of the right, for clarification of any element of a right or for administration of the right by the director.
With respect to any water right for which a change was approved by the director pursuant to section 42-211 or 42-222, Idaho Code, after filing the notice of claim and prior to filing of the director’s report, the claimant shall amend the notice of claim consistent with the determination of the director on the change.
Each claimant, through submission of a claim, shall solemnly swear or affirm under penalty of perjury that the statements contained in the notice of claim or amended notice of claim are true and correct.
All claimants of water rights that are included in a general adjudication shall file with the director a notice of claim for all water rights, except for those types of water rights designated in paragraphs (a) through (d) of subsection (1) of section 42-1420, Idaho Code.
Any person who fails to submit a required notice of claim shall be deemed to have been constructively served with notice of a general adjudication by publication and mailing as required by section 42-1408, Idaho Code.
Each purchaser of a water right from the water system shall inquire of the director whether a notice of claim has been filed, and if not, shall file a notice of claim in accordance with this section. All claimants and purchasers shall provide the director written notice of any change in ownership or of any change in mailing address during the pendency of a general adjudication. All purchasers shall submit some evidence of ownership along with the notice of change of ownership.
At least one hundred twenty (120) days prior to filing of the director’s report with the court, the director may notify each holder of a permit or license to appropriate water from the water system, for which proof of beneficial use was filed after entry of the court’s order commencing a general adjudication, to file a notice of claim within thirty (30) days of mailing of the notice. The director shall notify the holder of the permit or license by certified mail at the most recent address shown in the records of the department.
The district court or director may extend the time for filing a notice of claim.

The notice of claim form shall include the following:

History.

I.C.,§ 42-1409, as added by 1986, ch. 220, § 11, p. 558; am. 1994, ch. 454, § 15, p. 1443; am. 1994, ch. 455, § 1, p. 1478; am. 1997, ch. 374, § 3, p. 1192; am. 2007, ch. 187, § 1, p. 545.

STATUTORY NOTES

Prior Laws.

Former§ 42-1409 was repealed. See Prior Laws,§ 42-1407.

Amendments.

The 2007 amendment, by ch. 187, in subsection (3), inserted “through submission of a claim,” substituted “solemnly swear or affirm under penalty of perjury” for “sign and verify under oath” and substituted “contained in the notice” for “contained in a notice.”

Legislative Intent.

Section 34 of S.L. 1994, ch. 454, as amended by § 7 of S.L. 1994, ch. 455 provides: “(1) The legislature intends that the amendments made in this act shall apply to case no. 39576 in the district court of the fifth judicial district, in and for the county of Twin Falls, subject to the transition provisions of this section.

“(3) The district court shall provide any claimant of a water right acquired under state law or established under federal law with an opportunity to file new notices of claim or to file amendments to notices of claim to conform them with this act, subject to the following procedures:

“(a) The provisions of subsection (1) of section 42-1409, Idaho Code, do not require the amendment of any notice of claim for water rights acquired under state law. The director shall investigate the notices of claim sufficiently to determine these matters. If any claimant disagrees with the director’s determination of these matters, the claimant may file an objection to the director’s report.

“(b) Objections to an amended director’s report for any of the three (3) test basins shall be governed by section 42-1412, Idaho Code.

“(4) The director shall cease work on any director’s report for water rights established under federal law, subject to the following provisions:

“(a) The new notice and service requirements of section 42-1411A, Idaho Code, shall not apply to any water rights established under federal law which are included in any director’s report, which abstracts the notices of claim for a water right established under federal law and which has been filed with the district court prior to the effective date of this act. The other provisions of section 42-1411A, Idaho Code, shall apply to those water rights established under federal law that are included in such director’s reports.

“(b) Objections to an amended director’s report for any of the three (3) test basins shall be governed by section 42-1411A, Idaho Code.

“(5) The director shall transmit to the district court the originals of the notices of claim to water rights established under federal law within sixty (60) days of the effective date of this act.”

Compiler’s Notes.

The “s” enclosed in parentheses so appeared in the law as enacted.

CASE NOTES

Cited

Idaho Dep’t of Water Resources v. United States, 122 Idaho 116, 832 P.2d 289 (1992); Eden v. State (In re SRBA Case No. 39576), 164 Idaho 241, 429 P.3d 129 (2018); First Sec. Corp. v. Belle Ranch, LLC, — Idaho —, 451 P.3d 446 (2019).

Decisions Under Prior Law

Quantity of Water Claimed.

In an action to adjudicate water rights, wherein the United States claimed reserved nonconsumptive water rights to the entire natural flow of three streams in two national forests, the claim to the entire natural flow, if it were proved to be necessary to accomplish the purposes of timber and watershed protection, was a sufficient quantification of the claimed reserved rights. Avondale Irrigation Dist. v. North Idaho Properties, Inc., 99 Idaho 30, 577 P.2d 9 (1978). RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

§ 42-1409A. Amendment of notice of claims — Late notice of claims.

A claimant may amend a notice of claim or file a late notice of claim at any time prior to the final date for filing notices of claim in the notice of second round service as provided in subsection (4) of section 42-1408, Idaho Code.
A claimant may amend the name and address of a claimant at any time.
A claimant may amend a notice of claim or file a late notice of claim after the final date for filing notices of claims in the notice of second round service for good cause shown to the district court or the director.
No amendments to a notice of claim or late notices of claim shall be allowed except as authorized in subsection (1), (2) or (3) of this section.

History.

I.C.,§ 42-1409A, as added by 1994, ch. 454, § 16, p. 1443.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

§ 42-1410. Examination of water system and of claims.

Upon entry of the court’s order commencing a general adjudication, or as provided in section 42-1404 or 42-1424, Idaho Code, the director shall commence an examination of the water system, the canals and ditches and other works, and the uses being made of water diverted from the water system for water rights acquired under state law. The examination shall continue in a manner and for such a period of time as the director determines is necessary to evaluate the extent and nature of each water right for which a notice of claim under state law has been filed. The director may conduct any fact-finding hearing necessary for a full and adequate disclosure of the facts.
The director and other employees of the department shall have authority to go upon all lands, both public and private, for the purpose of investigating the uses of water from any water source and may require the cooperation of the claimant in investigating the claimant’s water use. The employee investigating the claimant’s use shall make a reasonable effort to contact the claimant to schedule a date and approximate time for the examination. If the well or diversion works are located in a building other than an unlocked structure used solely for housing the well or other diversion works in which there is no reasonable expectation of privacy, the employee shall only enter the building in the absence of a court order after requesting and receiving the permission of the claimant or other occupant. The director may request the district court to issue an order compelling inspection and subpoenas requiring the attendance of any witness or the production of documents in accordance with the Idaho rules of civil procedure.
Any maps prepared by the director shall be available for inspection at the offices of the department and any other locations the director may designate, for the purpose of assisting any claimant in preparing and filing claims and objections to the director’s report.

History.

I.C.,§ 42-1410, as added by 1986, ch. 220, § 12, p. 558; am. 1994, ch. 454, § 17, p. 1443.

STATUTORY NOTES

Prior Laws.

Former§ 42-1410 was repealed. See Prior Laws,§ 42-1407.

CASE NOTES

Decisions Under Prior Law

Apportionment of Expense.

Where court, under this section, ordered a survey by state engineer (department of water resources) of ditches and canals diverting water from a stream, and of irrigable lands thereunder, and of those to which water had been applied, and the making of maps thereof, cost of such survey was properly chargeable to the several litigants in the case in proportion to the quantity of water allotted to each, and it was unnecessary for anyone to file a cost bill covering such item of expense. Farmers’ Coop. Ditch Co. v. Riverside Irrigation Dist., 14 Idaho 450, 94 P. 761 (1908).

Where department failed to file map with court or place it in court’s possession, department was not entitled to have costs apportioned among parties. Hamilton v. Swendsen, 46 Idaho 175, 267 P. 229 (1928).

Duty to File Map.

Settlement of case on stipulated findings did not do away with department’s duty to file with, or place in possession of, court a map ordered prepared under this section. Hamilton v. Swendsen, 46 Idaho 175, 267 P. 229 (1928).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

Understanding the 1984 Swan Falls Settlement, Clive J. Strong & Michael C. Orr. 52 Idaho L. Rev. 223 (2016).

The Role of the Idaho Department of Water Resources in the Snake River Basin Adjudication, Phillip J. Rassier. 52 Idaho L. Rev. 289 (2016).

§ 42-1411. Report of the director.

The director shall prepare a director’s report on the water system. The director may file the director’s report in parts as the director deems appropriate. The director may include such explanatory material as he deems appropriate in the director’s report. Such explanatory material shall not impose any conditions or restrictions on the rights reported and shall not be subject to objection. This explanatory material shall not be used to support any notice of claim, objection to a notice of claim, or response to an objection.
The director shall determine the following elements, to the extent the director deems appropriate and proper, to define and administer the water rights acquired under state law:
1. the name and address of the claimant;
2. the source of water;
3. the quantity of water used describing the rate of water diversion or, in the case of an instream flow right, the rate of water flow in cubic feet per second or annual volume of diversion of water for use or storage in acre-feet per year as necessary for the proper administration of the water right;
4. the date of priority;
5. the legal description of the point(s) of diversion; if the claim is for an instream flow, then a legal description of the beginning and ending points of the claimed instream flow;
6. the purpose of use;
7. the period of the year when water is used for such purposes;
8. a legal description of the place of use; if one (1) of the purposes of use is irrigation, then the number of irrigated acres within each forty (40) acre subdivision, except that the place of use may be described using a general description in the manner provided under section 42-219, Idaho Code, which may consist of a digital boundary as defined in section 42-202B, Idaho Code, if the irrigation project would qualify to be so described under section 42-219, Idaho Code;
9. conditions on the exercise of any water right included in any decree, license, or approved transfer application; and
10. such remarks and other matters as are necessary for definition of the right, for clarification of any element of a right, or for administration of the right by the director.
The director may include such general provisions in the director’s report, as the director deems appropriate and proper, to define and to administer all water rights.
The director shall file the director’s report with the district court, and the director’s report shall be a part of the record. Upon filing with the court, the director’s report, except for the explanatory material referred to in subsection (1) of this section, shall constitute prima facie evidence of the nature and extent of the water rights acquired under state law. The unobjected to portions of the director’s report shall be decreed as reported.
Each claimant of a water right acquired under state law has the ultimate burden of persuasion for each element of a water right. Since the director’s report is prima facie evidence of the nature and extent of the water rights acquired under state law, a claimant of a water right acquired under state law has the burden of going forward with the evidence to establish any element of a water right which is in addition to or inconsistent with the description in a director’s report. Any party filing an objection to any portion of the director’s report shall have the burden of going forward with the evidence to rebut the director’s report as to all issues raised by the objection. Provided however, that a claimant objecting to the director’s recommended place of use described by a digital boundary or other similar technology shall not be required to produce digital boundary or other similar technology-generated evidence in order to meet the burden provided by this section. Places of use described using digital boundaries or other similar technology-based descriptions shall not be entitled to any greater weight than descriptions by metes and bounds, the number of irrigated acres within each forty (40) acre subdivision, or other method adequate for the description of water rights. Any other party to the proceeding may submit evidence in opposition to the objector’s position and in support of the director’s report. All such proceedings shall be governed by the Idaho rules of civil procedure and Idaho rules of evidence. (6) The director shall file an original of the director’s report with the district court. The director shall also distribute for display and review at least one (1) copy of the director’s report to the office of the clerk of the district court for each county in which any part of the water system is located. The director shall also serve on each claimant or the claimant’s attorney whose water right is listed in the director’s report a notice of filing of the director’s report. Notice shall be sent to the last known address of the claimant or the claimant’s attorney. The notice shall be prepared by the director using plain and concise language and shall include:
1. a statement that the director’s report of the various water rights acquired under state law has been filed with the district court, naming the district court(s) to which the report was filed;
2. a copy of that portion of the report setting forth the claimant’s water right;
3. a statement that a complete copy of the director’s report is available for inspection, listing the locations at which the director’s report is available, which shall include the office of the clerk of the district court for each county in which any part of the water system is located, the offices of the department, and any other locations the director may designate;
4. a statement that all or a portion of the director’s report is available upon request at the offices of the department, subject to payment of a reasonable fee to cover costs of reproduction and mailing;
5. a statement that any claimant may file objections to any portion of the director’s report with the district court specified in the notice and must mail a copy of the objection to the director, and to the claimant of each claimed right objected to, if the objector is not also the claimant of the right for which the objection is filed;
6. the date prior to which all objections must be filed, which shall not be less than sixty (60) days for any director’s report containing five hundred (500) claims or less, one hundred twenty (120) days for any director’s report containing more than five hundred (500) claims and not more than five thousand (5,000) claims, and one hundred eighty (180) days for any director’s report containing more than five thousand (5,000) claims; the above-stated periods of time shall commence on the date of service by mail of the notice of filing;
7. a statement that claimants may file responses with the court to objections filed against their claims, and that a copy of any response must be mailed to the director and to the objector;
8. the date prior to which all responses to objections must be filed with the court, which shall not be less than sixty (60) days following receipt of a copy of the objection; and
9. a statement that any part of the report to which no objections are filed shall be decreed by the district court and the time and location set for the hearing at which the unobjected parts of the report will be decreed, which time shall not be less than sixty (60) days following the expiration of the period for filing objections. (7) The director shall file an affidavit with the district court demonstrating compliance with the notice requirements of subsection (6) of this section.

History.

I.C.,§ 42-1411, as added by 1986, ch. 220, § 13, p. 558; am. 1994, ch. 454, § 18, p. 1443; am. 1994, ch. 455, § 2, p. 1478; am. 1996, ch. 186, § 2, p. 584; am. 1997, ch. 374, § 4, p. 1192; am. 2002, ch. 12, § 1, p. 14; am. 2002, ch. 13, § 1, p. 17; am. 2002, ch. 306, § 3, p. 870; am. 2003, ch. 167, § 1, p. 472.

STATUTORY NOTES

Prior Laws.

Former§ 42-1411 was repealed. See Prior Laws,§ 42-1407.

Amendments.

This section was amended by three 2002 acts which appear to be compatible and have been compiled together.

The 2002 amendment, by ch. 12, § 1, in subdivision 6(h), substituted “sixty (60) days” for “one hundred twenty (120) days” following “which shall not be less than.”

The 2002 amendment, by ch. 13, § 1, in subdivision 6(i), deleted “responses to” following “the period for filing.”

The 2002 amendment, by ch. 306, § 3, in subdivision 2(h), following “(40) acre subdivision, except,” substituted “that the place or use may be described using a general description in the manner provided under section 42-219, Idaho Code, which may consist of a digital boundary as defined in section 42-202B, Idaho Code, if the irrigation project would qualify to be so described under” for “as provided in.”

Compiler’s Notes.

Section 27 of S.L. 1986, ch. 220 read: “The provisions of section 13 of this act, which enacts section 42-1411, Idaho Code, as herein enacted, shall not apply to any adjudication in which a report of the director was filed prior to the effective date [July 1, 1986] of this act.”

The “s” enclosed in parentheses so appeared in the law as enacted.

CASE NOTES

Burdens of Claimant.

This section makes it clear that the claimant bears both the burden of production as well as the burden of proof as to each element of a claimed water right. State v. Hagerman Water Right Owners, Inc., 130 Idaho 736, 947 P.2d 409 (1997).

In a Snake river basin adjudication, the district court did not err in accepting a master’s findings of fact, concerning two priority dates, because the city had not met its burden of proof under subsections (4) and (5) to show when the water was first applied to a beneficial use and the amount so applied. City of Pocatello v. State (In re SRBA Case No. 39576), 152 Idaho 830, 275 P.3d 845 (2012).

Conclusions of Special Master.

The special master did not rely upon the prima facie status of the director’s report, rather, the record indicated that she based her conclusions of forfeiture and abandonment on the facts of the case as applied to both statutory and common law. McCray v. Rosenkrance, 135 Idaho 509, 20 P.3d 693 (2001).

General Provisions.

A general provision is an administrative provision that generally applies to water rights, but it need not apply to every water right. A & B Irrigation Dist. v. Idaho Conservation League, 131 Idaho 411, 958 P.2d 568 (1998).

Legislative Authority.

While Idaho Const., Art. II prohibits the legislature from usurping powers properly belonging to the judicial department, it also prohibits the judiciary from improperly invading the province of the legislature; thus, the 1994 legislative revisions and amendments to the Snake River basin adjudication (SRBA) statutes, which redefined the role of the director of the Idaho department of water resources and the role of various state agencies in the SRBA, were a proper exercise of legislative authority to the extent that the statutes prescribe substantive law and do not conflict with rules of the court. State ex rel. Higginson v. United States, 128 Idaho 246, 912 P.2d 614 (1995).

It was within the legislature’s power to enact subdivision (4) of this section, which directs that the contents of the director of the Idaho department of water resources report shall constitute prima facie evidence of some water rights claims; this direction is recognized in Idaho Evid. R. 301 to create an evidentiary presumption, and unless that evidentiary presumption is overcome by the evidence or the application of that presumption is clearly erroneous on its face, the facts set forth in the director’s report are established. State ex rel. Higginson v. United States, 128 Idaho 246, 912 P.2d 614 (1995).

Presumptions.

While affidavits may dispel the presumed correctness of the facts contained in the report, the facts contained therein still exist as facts. Facts contained in the affidavits create triable issues to the extent they conflict with facts alleged in the report. Once the presumption is rebutted, it disappears and the facts upon which the presumption is based are weighed with all other facts may be relevant. State v. Hagerman Water Right Owners, Inc., 130 Idaho 736, 947 P.2d 409 (1997).

Recharge.

Recharge is a statutorily recognized beneficial use under§ 42-234(2). As such, it must be included in the purpose of use element before a water right may be used for recharge. City of Blackfoot v. Spackman, 162 Idaho 302, 396 P.3d 1184 (2017).

Specificity.

Where water rights between the United States bureau of reclamation and irrigation entities was resolved and the irrigation entities requested that each partial decree include the identity of each irrigation entity that held beneficial title to the water and the quantity of the water right owned, the request was rejected because the water rights had been administered successfully without the requested specificity. United States v. Pioneer Irrigation Dist. (In re SRBA Case No. 3957), 144 Idaho 106, 157 P.3d 600 (2007).

Cited

Idaho Dep’t of Water Resources v. United States, 122 Idaho 116, 832 P.2d 289 (1992); State v. Idaho Conservation League, 131 Idaho 329, 955 P.2d 1108 (1998); Bedke v. City of Oakley (In re SRBA), 149 Idaho 532, 237 P.3d 1 (2010); First Sec. Corp. v. Belle Ranch, LLC, — Idaho —, 451 P.3d 446 (2019).

Decisions Under Prior Law

Settlement of Water Rights Dispute.

A water right is defined, not in terms of metes and bounds as in other real property, but in terms of the priority, amount, season of use, purpose of use, point of diversion, and place of use; a compromise, in a stipulation to settle a water rights dispute, to change or exchange any of these definitional factors would be identical to a compromise to change or exchange a portion of the metes and bounds description of real property and, as such, would fall directly within the statute of frauds. Olson v. Idaho Dep’t of Water Resources, 105 Idaho 98, 666 P.2d 188 (1983).

Where oral stipulation to settle water rights dispute changed existing water rights by reshuffling priority dates and changing amounts of use, such stipulation was a contract falling within the statute of frauds and, if still executory, was unenforceable. Olson v. Idaho Dep’t of Water Resources, 105 Idaho 98, 666 P.2d 188 (1983).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

Understanding the 1984 Swan Falls Settlement, Clive J. Strong & Michael C. Orr. 52 Idaho L. Rev. 223 (2016).

The Role of the Idaho Department of Water Resources in the Snake River Basin Adjudication, Phillip J. Rassier. 52 Idaho L. Rev. 289 (2016).

§ 42-1411A. Service of notice of and determination of water rights established under federal law.

The district court shall determine the water rights established under federal law in accordance with the procedures established in this section.
The district court shall determine the following procedures for water rights established under federal law:
1. The contents of a notice of water right claims established under federal law;
2. The method of service of the notice of water right claims established under federal law;
3. The location of any depositories of notices of claim for water rights established under federal law, if the district court determines that claim depositories are necessary to provide other claimants reasonable access to the notices of claims established under federal law.
The district court shall be guided by the following three (3) principles in establishing the procedures required in this section:
1. The purpose of this notice is to provide notice to other claimants of the filing of water rights established under federal law comparable to the notice of filing for water rights acquired under state law;
2. The procedures shall not impose any burden greater than the burden placed upon the director to prepare, file, and serve the notice of filing for a director’s report; and
3. The procedure shall comply with the McCarran amendment, 43 USC 666.
Any claimant of a water right established under federal law shall serve all such notices of claim on the other claimants in accordance with the procedures established by the district court.
Any claimant may contract with the director to perform all or any portion of the service required in this section. The director shall require in any contract that the cost of the services provided by the director are reimbursed by the claimant of a water right established under federal law.
The United States, if it filed any notices of claim for a water right established under federal law, and any other claimants of such water rights, shall file an affidavit demonstrating proof of service in compliance with this section.
The district court shall provide at least sixty (60) days for filing objections to water rights established under federal law where the number of those water rights are five hundred (500) or less, at least one hundred twenty (120) days where the number of these water rights are more than five hundred (500) and not more than five thousand (5,000), and at least one hundred eighty (180) days where the number of these water rights are more than five thousand (5,000).
Any claimant who desires to object to a claim established under federal law shall file an objection with the district court within the time specified in the notice of water right claims established under federal law. The claimant shall also send a copy of the objection to the claimant whose claim is the subject of the objection and to the director. Any claimant may file a response to an objection.
The notice of claim, objection, and responses to an objection shall identify the issues to be litigated.
If a claimant of a water right established under federal law has filed notices of claim for one (1) water use based upon state and federal law, the district court shall develop procedures, after an opportunity for hearing, for coordination of the determination of such claims based upon state and federal law. (11) The district court shall conduct the trial without a jury on an objection or any group of objections in accordance with the Idaho rules of civil procedure.

(12) Each claimant of a water right established under federal law has the ultimate burden of persuasion for each element of a water right. Since no independent review of the notice of claim has occurred as provided for water rights acquired under state law in a director’s report, a claimant of a water right established under federal law has the burden of going forward with the evidence to establish a prima facie case for the water right established under federal law. All such proceedings shall be governed by the Idaho rules of civil procedure and Idaho rules of evidence.

(13) The district court shall enter a partial decree that contains or incorporates a statement of each element of a water right as stated in subsection (1) of section 42-1409, Idaho Code, as applicable, and that contains such general provisions, remarks, and other matters as are necessary for definition of the right, for clarification of any element of a right, or for administration of the right by the director.

(14) If no objections are filed to a notice of claim for a water right established under federal law, the claimant shall appear at a hearing scheduled by the district court and shall demonstrate a prima facie case of the existence of the water right established under federal law prior to entry of a decree for such claimed water right established under federal law. If the claimant fails to present a prima facie case of the existence of the water right established under federal law, then the district court shall enter an order determining that the claimed water right does not exist.

(15) Any party may appeal in accordance with the Idaho rules of civil procedure.

(16) The attorney general shall represent the state of Idaho in all matters regarding claims to water rights established under federal law, including, but not limited to, filing objections to water right claims established under federal law.

History.

I.C.,§ 42-1411A, as added by 1994, ch. 454, § 19, p. 1443; am. 1994, ch. 455, § 3, p. 1478; am. 1996, ch. 186, § 3, p. 584.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Legislative Intent.

“(2) The director shall file with the district court amendments to the director’s reports for the three (3) test basins to conform those reports to the new information requirements of this act. The director shall provide the district court written notice of the schedule for completion of the amendments. “(3) The district court shall provide any claimant of a water right acquired under state law or established under federal law with an opportunity to file new notices of claim or to file amendments to notices of claim to conform them with this act, subject to the following procedures:

“(b) Objections to an amended director’s report for any of the three (3) test basins shall be governed by section 42-1412, Idaho Code.

“(4) The director shall cease work on any director’s report for water rights established under federal law, subject to the following provisions:

“(b) Objections to an amended director’s report for any of the three (3) test basins shall be governed by section 42-1411A, Idaho Code.

CASE NOTES

Cited

State v. United States, 134 Idaho 940, 12 P.3d 1284 (2000).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

The Role of the Idaho Department of Water Resources in the Snake River Basin Adjudication, Phillip J. Rassier. 52 Idaho L. Rev. 289 (2016).

§ 42-1412. Objections — Responses to objections — Hearing before district judge — Entry of final decree.

Any claimant who desires to object to a water right, or to a general provision in the director’s report, shall file an objection with the district court within the time specified in the notice of filing of the director’s report. The claimant shall also send a copy of the objection to the claimant whose water right claim is the subject of the objection and to the director.
The director may file with the district court a supplemental report to any objection to the director’s report within the time specified in the notice of filing of the report. The director shall file with the district court the original of the notice of claim. The director shall mail a copy of the supplemental report to the objector and the claimant whose right is the subject of the objection. A claimant may file with the district court a response to any objection filed with respect to the claimant’s water right within the time specified in the notice of filing of the report. If a party other than the claimant or the objector desires to participate in the proceeding concerning a particular objection, the party shall file a response to the objection that states the position of the party. In addition, any party may intervene in any objection proceeding in accordance with rules of practice and procedure established by the district court.
The notice of claim, objections, and responses to objections, shall identify the issues to be heard for water rights acquired under state law.
Following expiration of the period for filing objections and responses thereto, the district court shall hear and determine the objections to any water right or to any general provision in the director’s report. The court shall before any trial, however, order a settlement conference to determine whether the matter can be settled. The court may request the director to conduct a further investigation and to submit a supplemental report for any water right acquired under state law that is the subject of an objection. In addition, the district court or a party may request the director or his designee to present the basis for the recommendations in the director’s report.
The district court or special master shall conduct the trial without a jury on an objection or any group of objections in accordance with the Idaho rules of civil procedure.
The district court shall enter a partial decree determining the nature and extent of the water right which is the subject of the objection or other matters which are the subject of the objection. The decree shall contain or incorporate a statement of each element of a water right as stated in subsections (2) and (3) of section 42-1411, Idaho Code, as applicable. The decree shall also contain an express statement that the partial decree is subject to such general provisions necessary for the definition of the rights or for the efficient administration of the water rights. Upon entry of the decree, the clerk of the district court shall send a certified copy of the decree to the director in accordance with section 42-1403, Idaho Code. The clerk of the district court shall notify the objector and claimant of each right as to which an objection was determined by the district court of entry of the decree in the manner provided in the Idaho rules of civil procedure.
Not less than sixty (60) days after the expiration of the period for filing objections, the director shall file with the district court a statement of those portions of the director’s report for which no objection was filed. Following hearing, the district court shall enter a partial decree as to those portions of the director’s report for which no objection has been filed. However, the district court may exclude unobjected claims from this list if the unobjected claim may be affected by the outcome of a contested matter. The decree shall contain or incorporate a statement of those elements of a water right contained in the director’s report for water rights acquired under state law. Upon entry of the decree, the clerk of the district court shall send a certified copy of the decree to the director in accordance with section 42-1403, Idaho Code. The clerk of the district court shall notify each claimant of entry of the decree in the manner provided in the Idaho rules of civil procedure. (8) Upon resolution of all objections to water rights acquired under state law, to water rights established under federal law, and to general provisions, and after entry of partial decree(s), the district court shall combine all partial decrees and the general provisions into a final decree.

(9) The district court may extend or shorten the time for filing any objection to the director’s report or any response to an objection.

History.

I.C.,§ 42-1412, as added by 1986, ch. 220, § 14, p. 558; am. 1987, ch. 158, § 1, p. 308; am. 1994, ch. 454, § 20, p. 1443; am. 1994, ch. 455, § 4, p. 1478; am. 1997, ch. 374, § 5, p. 1192; am. 2002, ch. 13, § 2, p. 17.

STATUTORY NOTES

Prior Laws.

Former§ 42-1412 was repealed. See Prior Laws,§ 42-1407.

Legislative Intent.

“(b) Objections to an amended director’s report for any of the three (3) test basins shall be governed by section 42-1412, Idaho Code. “(4) The director shall cease work on any director’s report for water rights established under federal law, subject to the following provisions:

“(b) Objections to an amended director’s report for any of the three (3) test basins shall be governed by section 42-1411A, Idaho Code.

Compiler’s Notes.

The “s” enclosed in parentheses so appeared in the law as enacted.

CASE NOTES

Early and Late Season of Water Rights.

The period of use for irrigation must be identified by reference to specific dates, setting forth fixed periods for use of irrigation water rights; factual findings are required to determine whether early and late season general provisions are necessary to define or to efficiently administer rights. A & B Irrigation Dist. v. Idaho Conservation League, 131 Idaho 411, 958 P.2d 568 (1998).

Excess Water.

Under subdivision (6) of this section, excess water may be administered along with existing rights, even though there is no water right in the excess water itself. State v. Idaho Conservation League, 131 Idaho 329, 955 P.2d 1108 (1998).

Firefighting Provision.

A general provision regarding “excess water” or “high flow” is not necessary for inclusion in decrees issued in the Snake River basin adjudication. A & B Irrigation Dist. v. Idaho Conservation League, 131 Idaho 411, 958 P.2d 568 (1998). Firefighting Provision.

A general provision allowing for the use of water with or without a water right for the limited and beneficial use of firefighting is necessary, and a general provision regarding firefighting should be included in decrees issued in the Snake River basin adjudication. A & B Irrigation Dist. v. Idaho Conservation League, 131 Idaho 411, 958 P.2d 568 (1998).

General Provisions.

A general provision is “necessary” if it is required to define the water right being decreed or to efficiently administer water rights in a water rights decree. A & B Irrigation Dist. v. Idaho Conservation League, 131 Idaho 411, 958 P.2d 568 (1998).

Any objection to a decree of water rights under the Snake River Basin Adjudication should be directly addressed under this section, not collaterally attacked. Rangen, Inc. v. Idaho Dep’t of Water Res. (In re Distrib. of Water to Water Right Nos. 36-02551 & 36-07694), 160 Idaho 119, 369 P.3d 897 (2016).

Incidental Stock Watering.

A general provision regarding incidental stock watering is not necessary for inclusion in decrees issued in the Snake River basin adjudication. A & B Irrigation Dist. v. Idaho Conservation League, 131 Idaho 411, 958 P.2d 568 (1998).

Interconnection and Conjunctive Management.

An order denying inclusion of general provisions dealing with interconnection and conjunctive management of surface and ground water rights in specific basins was vacated and remanded for factual determination whether they were necessary to define or efficiently administer water rights decreed by the court in the particular basins. A & B Irrigation Dist. v. Idaho Conservation League, 131 Idaho 411, 958 P.2d 568 (1998).

Where parties had earlier staked water rights claims to springs that historically flowed in different directions but the waters had become commingled so that they were from the same source of supply, the district court did not err in issuing a partial decree for fish hatchery’s water rights. Clear Springs Foods, Inc. v. Clear Lakes Trout Co., 136 Idaho 761, 40 P.3d 119 (2002).

Late Response.

The special master’s denial of a motion to file a late response or participate in the subcase as a matter of right was proper where the response was not filed by either the initial deadline or the extended deadline. State v. United States, 134 Idaho 106, 996 P.2d 806 (2000).

Legislative Authority.

One-party proceedings.

While Idaho Const., Art. II prohibits the legislature from usurping powers properly belonging to the judicial department, it also prohibits the judiciary from improperly invading the province of the legislature; thus, the 1994 legislative revisions and amendments to the Snake River basin adjudication (SRBA) statutes, which redefined the role of the director of the Idaho department of water resources and the role of various state agencies in the SRBA, were a proper exercise of legislative authority to the extent that the statutes prescribe substantive law and do not conflict with rules of the court. State ex rel. Higginson v. United States, 128 Idaho 246, 912 P.2d 614 (1995). One-party proceedings.

In one-party subcases where the claimant alleges facts which differ from those contained in the director’s report, summary judgment is an inappropriate procedure. An evidentiary hearing must be conducted. State v. Hagerman Water Right Owners, Inc., 130 Idaho 736, 947 P.2d 409 (1997).

Period of Use for Irrigation Water Rights.

Irrigation water rights must be decreed with a specific period of use for each water right, based on factual determinations as to the appropriate period for each right. A & B Irrigation Dist. v. Idaho Conservation League, 131 Idaho 411, 958 P.2d 568 (1998).

Private Settlement Agreement.

Recharge.

Water right’s purpose of use element did not contain recharge as a beneficial use; thus, the undisputed seepage that occurred from the diversion and use of the water right for its various beneficial purposes was incidental recharge. Without a transfer approving recharge as a beneficial use, any seepage that occurred under the water right was incidental recharge and not eligible to be used for mitigation purposes. City of Blackfoot v. Spackman, 162 Idaho 302, 396 P.3d 1184 (2017).

Standing.

In an action arising from water rights claims by the U.S. bureau of reclamation and certain irrigation entities, citizens had standing to challenge to the jurisdiction of the Snake River basin adjudication court. Bray v. Pioneer Irrigation Dist. (In re SRBA case No. 39576), 144 Idaho 116, 157 P.3d 610 (2007).

Waiver.

In a case involving the expansion of water rights by an irrigation district, several ground water users did not waive the right to object because the act of filing a recommendation to a report from the Idaho department of water resources, rather than an objection, was sufficient. A & B Irrigation Dist. v. Aberdeen-American Falls Ground Water Dist. (In re SRBA Case No. 39576), 141 Idaho 746, 118 P.3d 78 (2005).

Cited

Property owners waived the right to challenge a special master’s findings, which were ordered in a partial decree, when they failed to file a motion to alter or amend the recommendations, pursuant to Snake River Basin Adjudication Administrative Order 1, § 13(a). Because there was no notice of challenge, the district court rightly deduced that both parties agreed with the priority date within the special master’s recommendation. Holden v. Weece (In re SRBA Case No. 39576), 163 Idaho 393, 414 P.3d 215 (2018). Cited Silverstein v. Carlson, 118 Idaho 456, 797 P.2d 856 (1990); Idaho Dep’t of Water Resources v. United States, 122 Idaho 116, 832 P.2d 289 (1992); State v. Hagerman Water Right Owners, Inc., 130 Idaho 736, 947 P.2d 409 (1997); N. Snake Ground Water Dist. v. Gisler, 136 Idaho 747, 40 P.3d 105 (2002); First Sec. Corp. v. Belle Ranch, LLC, — Idaho —, 451 P.3d 446 (2019).

Decisions Under Prior Law

Timing of Objections.

The provision of former law that claimants shall file objections within 60 days requires the district courts to hear objections raised within that time period but leaves them with discretion to hear objections thereafter. Branson v. Miracle, 107 Idaho 221, 687 P.2d 1348 (1984).

Since the provision of former law requiring affirmance where no objection has been filed does not require affirmance where the claimant has failed to object within 60 days, but only where the claimant has failed to raise any objections, the court did not err in exercising its discretion in allowing parties to present objections to the report after the 60-day period had elapsed. Branson v. Miracle, 107 Idaho 221, 687 P.2d 1348 (1984).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

Understanding the 1984 Swan Falls Settlement, Clive J. Strong & Michael C. Orr. 52 Idaho L. Rev. 223 (2016).

The Role of the Idaho Department of Water Resources in the Snake River Basin Adjudication, Phillip J. Rassier. 52 Idaho L. Rev. 289 (2016).

§ 42-1413. Filing of final decree.

When a decree has become final in an adjudication in which the director filed a report, the director shall file a certified copy of the decree or a transcript thereof in the office of the county recorder of each county in which the place of use or point of diversion of the water rights contained in the decree is located.
Upon entry of a final decree, the director shall administer the water rights by distributing water in accordance with the final decree and with title 42, Idaho Code.
When a decree has become final in an adjudication in which the director has not filed a report, the clerk of the district court in which the decree is entered shall file a certified copy of the decree or a transcript thereof in the office of the county recorder for each county in which the place of use or point of diversion of the water rights decreed is located, and shall send a certified copy of the decree to the director as required in section 42-1403, Idaho Code.
The transcript of decree shall contain the following:
1. title of the district court;
2. name of the case;
3. the case number;
4. names of each party;
5. date of entry;
6. the description of the boundaries of the water system, which is the subject of the general adjudication;
7. a statement that the decree is entered in the records of the clerk of the district court;
8. a statement that information as to the rights decreed is available at the offices of the department; and
9. such other information as may be necessary to assist any person searching the title of a parcel to find the decree.
A decree or transcript recorded pursuant to this section from the time it is filed with the recorder for record, is constructive notice of the contents of the decree within the county in which the decree or transcript is recorded to subsequent purchasers and mortgagees.
Notwithstanding the filing of a certified copy of the decree or a transcript thereof in the office of the county recorder, only the legal description of an irrigation district’s boundaries recorded in compliance with title 43, Idaho Code, shall constitute conclusive proof of the district’s boundaries. The decree shall not be construed to define, limit or otherwise affect the apportionment of benefits to lands within an irrigation district pursuant to chapter 7, title 43, Idaho Code. A notice consistent with this subsection shall be filed with the certified copy of the decree or a transcript thereof.

History.

I.C.,§ 42-1413, as added by 1986, ch. 220, § 15, p. 558; am. 1994, ch. 454, § 21, p. 1443; am. 2003, ch. 167, § 2, p. 472.

STATUTORY NOTES

Prior Laws.

Former§ 42-1413 was repealed. See Prior Laws,§ 42-1407.

CASE NOTES

Applicability.

Idaho department of water resources’ instructions complied with a prior final decree, because the instructions did not let a direct flow holder appropriate stored water rights, despite a reduced flow due to seepage and evaporation. Sylte v. Idaho Dep’t of Water Res., — Idaho —, 443 P.3d 252 (2019).

Cited

Idaho Dep’t of Water Resources v. United States, 122 Idaho 116, 832 P.2d 289 (1992).

§ 42-1414. Fees for filing notice of claims with the director.

In order to provide an adequate and equitable cost-sharing formula for financing the costs of adjudicating water rights the department of water resources shall accept no notice of claim required under the provisions of section 42-1409, Idaho Code, unless such notice of claim is submitted with a filing fee based upon the fee schedule set forth below. Failure to pay the variable water use fee in accordance with the timetable provided shall be cause for the department to reject and return the notice of claim to the claimant. The fee schedule set forth below applies to adjudication proceedings commenced or enlarged on or after January 1, 1985.
1. Flat fee per claim filed:
  1. Claims for domestic and/or stock watering rights ............................... $25.00
  2. Claims for all other rights ............................... $50.00
2. Additional variable water use fee for claims filed based upon acreage, power generating capacity, c.f.s., or equivalent volume of water:
  1. Irrigation use (one fee irrespective of number of claims): ............................... $1.00 per acre
  2. Power: ............................... $3.50 per kilowatt of capacity (manufacturer’s nameplate rating), or $250,000, whichever is less
  3. Aquaculture: ............................... $10.00 per c.f.s.
  4. Municipal, industrial, commercial, mining, heating, cooling: ............................... $100.00 per c.f.s.
  5. Public instream flow, public lake level maintenance, wildlife: ............................... $100.00 per c.f.s.
3. All fees collected by the department pursuant to this section shall be placed in the water resources adjudication account [fund] established in section 42-1777, Idaho Code.
If a claimant increases in an amended notice of claim the amount of water claimed, the amount of land irrigated, or the kilowatt capacity of the generating facility, the claimant shall pay upon filing the amended notice of claim an additional variable fee in accordance with the rates set forth in subsection (1) of this section. Claimants shall be entitled to a return of filing fees or late fees only where the fee was miscalculated at the time the original or amended notice of claim was filed.
If a claimant files a notice of claim after the date set by the director in the notice mailed or served in accordance with subsections [subsection] (2), (3), or (4) of section 42-1408, Idaho Code, or with subsection (7) of section 42-1409, Idaho Code, the claimant shall pay the fee set forth in subsection (1) of this section, and in addition, the amount of fifty dollars ($50) or fifteen percent (15%) of the original filing fee, whichever is greater. The director may waive the late processing fee or a portion thereof for good cause.

Provided however, and notwithstanding any other provision of law, fees for stock watering right claims, regardless of the number of claims filed, shall only be imposed on the first four (4) claims per claimant, and there shall be no other fees or costs imposed for such claims.

History.

I.C.,§ 42-1414, as added by 1971, ch. 153, § 1, p. 753; am. 1972, ch. 23, § 1, p. 28; am. 1985, ch. 18, § 3, p. 27; am. 1994, ch. 454, § 22, p. 1443; am. 1994, ch. 455, § 5, p. 1478; am. 1996, ch. 186, § 4, p. 584; am. 2006, ch. 222, § 2, p. 661; am. 2008, ch. 148, § 1, p. 433; am. 2017, ch. 162, § 1, p. 385.

STATUTORY NOTES

Amendments.

The 2006 amendment, by ch. 222, doubled all fee amounts in subsections (1)(a) and (b); inserted “based on permit, license, decree or statutory claim” in subsection (1)(a)(i); deleted first sentence of subsection (1)(c), which read: “Payment of a variable use water fee of more than one thousand dollars ($1,000) may be spread out over as many as five (5) annual equal payments with ten percent (10%) interest accruing on the unpaid balance”; and substituted “one hundred dollars ($100)” for “fifty dollars ($50)” in subsection (3).

The 2008 amendment, by ch. 148, throughout subsections (a) and (b), reduced the fee amounts by half; in paragraph (1)(a)(i), deleted “based on permit, license, decree or statutory claim” following “watering rights”; in paragraph (b)(ii), added “or $250,000, whichever is less”; and in subsection (3), substituted “fifty dollars ($50)” for “one hundred dollars ($100).”

The 2017 amendment, by ch. 162, added the proviso following paragraph (1)(a)(i).

Compiler’s Notes.

The bracketed insertion in paragraph (1)(c) was added by the compiler to correct the name of the referenced fund.

The bracketed insertion in subsection (3) was added by the compiler to supply the intended term.

The words enclosed in parentheses so appeared in the law as enacted.

S.L. 2017, Chapter 162 became law without the signature of the governor.

Effective Dates.

Section 2 of S.L. 1972, ch. 23 declared an emergency. Approved February 19, 1972.

CASE NOTES

Fees Charged to United States.

The McCarran Amendment (43 U.S.C. § 666) does not waive the United States’ sovereign immunity from fees required by this section. United States v. Idaho ex rel. Dir., Idaho Dep’t of Water Resources, 508 U.S. 1, 113 S. Ct. 1893, 123 L. Ed. 2d 563 (1993).

Cited

Idaho Dep’t of Water Resources v. United States, 122 Idaho 116, 832 P.2d 289 (1992).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

§ 42-1415. Enforcement of filing fees.

After filing of the director’s report in a general adjudication, the director may prohibit in accordance with chapter 3, title 42, Idaho Code, the diversion and use of water in satisfaction of a right claimed or decreed in the adjudication upon the failure of the claimant to comply with the schedule for payment of variable fees as set forth in subsection (1) of section 42-1414, Idaho Code.

History.

I.C.,§ 42-1415, as added by 1986, ch. 220, § 16, p. 558; am. 1994, ch. 454, § 23, p. 1443.

STATUTORY NOTES

Prior Laws.

Former§ 42-1415, which comprised I.C.,§ 42-1415 as added by 1980, ch. 150, § 2, p. 318, was repealed by S.L. 1986, ch. 220, § 1.

§ 42-1416, 42-1416A. Presumptions in basin-wide adjudication — Prior change in point of diversion. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

Former§§ 42-1416 and 42-1416A, which comprised I.C.,§ 42-1416, as added by 1985, ch. 19, § 1, p. 31 and I.C.,§ 42-1416A, as added by 1989, ch. 97, § 1, p. 226, were repealed by S.L. 1994, ch. 454, § 24, effective April 12, 1994.

§ 42-1416B. Claim for expanded use in critical ground water area — Determination of water availability.

Within any critical ground water area designated pursuant to section 42-233a, Idaho Code, a claim to the expanded use of a ground water right, which use was expanded in violation of the mandatory permit requirements, may be decreed in a general water rights adjudication if the expansion occurred after the designation of the critical ground water area, before the commencement of the adjudication, and before the date of enactment of this section. The priority date for the right decreed shall be June 30, 1985.
Water shall be deemed unavailable to fill the rights for expanded use, even if decreed in the adjudication, unless the director finds that a management program exists which will, within a time period acceptable to the director, limit the average annual water withdrawals from the aquifer designated in the critical ground water area to no more than the average annual recharge to the aquifer.
Within two (2) years after a decree determining the water rights within a critical ground water area becomes final, but not sooner than four (4) years from the date of enactment of this section, the director of the department of water resources shall make a finding as to whether an adequate management program exists to bring withdrawals into balance with recharge.
If the director finds that an adequate management program to bring withdrawals into balance with recharge does not exist, the director shall order all holders of rights to expanded use of ground water within the area to cease or reduce withdrawal of water until such time as the director determines that withdrawals have been brought into balance with recharge and sufficient ground water is available to resume or increase withdrawals. The director’s order shall be issued before September 1 and shall be effective beginning with the following growing season.
For purposes of this section, the following definitions shall apply:
1. “Expanded use” means an increase in the number of acres irrigated, or other additional use, under a valid ground water right without any increase in the rate of diversion or volume of water diverted.
2. “Management program” means a program to recharge the aquifer, limit withdrawals from the aquifer or provide surface water supplies for all, or a portion, of the land irrigated with water withdrawn from the aquifer, including any actions designed to bring withdrawals into balance with the average annual recharge to the aquifer.
3. “Recharge” refers to all processes, natural or artificial, which add water to the aquifer.
4. “Withdrawal” refers to all processes, natural or artificial, which take water from the aquifer.
The hearing and judicial review provisions of section 42-1701A, Idaho Code, shall apply to any findings and orders issued by the director pursuant to this section.
Nothing contained in this section shall be construed to limit the authority of the director of the department of water resources to administer and enforce any other ground water laws of the state.

History.

I.C.,§ 42-1416B, as added by 1989, ch. 212, § 1, p. 521.

STATUTORY NOTES

42-1418. Appeals.

“(1) an order commencing a general adjudication pursuant to sections 42-1406A or 42-1408, Idaho Code;

“(2) an order of reference to a special matter in a general adjudication pursuant to section 42-1422, Idaho Code;

“(3) a partial decree in a general adjudication pursuant to subsection (9) of section 42-1412, Idaho Code; and

“(4) a decree after hearing on objections in a general adjudication pursuant to subsection (8) of section 42-1412, Idaho Code.”

§ 42-1419. Entry of an order commencing a general adjudication on a special docket — Constructive notice — Filing of certified copy of order in other counties.

The clerk of the district court shall enter an order commencing a general adjudication on a special docket for water right adjudications in addition to any other district court record.
From the time of docketing and not before, any order commencing a general adjudication is constructive notice of the contents thereof, within the county in which the order is docketed, to subsequent purchasers and mortgagees.
The director shall file a true and certified copy of any order commencing a general adjudication with the district court for each county of this state where the water system to be adjudicated is located. The clerk of the district court shall file and docket the same as provided in subsection (1) of this section. From the time of such docketing and not before, the order so docketed is constructive notice of the contents thereof within the county in which the order is docketed to subsequent purchasers and mortgagees.

History.

I.C.,§ 42-1419, as added by 1986, ch. 220, § 19, p. 558.

§ 42-1420. Binding effect of decree — Exceptions.

The decree entered in a general adjudication shall be conclusive as to the nature and extent of all water rights in the adjudicated water system except that the following described water rights shall not be lost by failure to file a notice of claim:
1. a water right for domestic use or stock watering use, specifically excluded from the general adjudication by court order;
2. a water right application for permit filed under chapters [chapter] 2 or 15, title 42, Idaho Code;
3. a water right permit issued under chapters [chapter] 2 or 15, title 42, Idaho Code, unless the director required the permit holder to file a notice of claim in accordance with subsection (7) of section 42-1409, Idaho Code;
4. a water right license issued under chapter 2 or 15, title 42, Idaho Code, if proof of beneficial use had not been filed on the date of commencement of the general adjudication, unless the director required the license holder to file a notice of claim in accordance with subsection (7) of section 42-1409, Idaho Code; and
5. a claim to a water right established under federal law, if the priority of the right claimed is later than and junior to the date of entry of the order commencing the general adjudication.
The exceptions from the conclusive effect of a decree in a general adjudication stated in subsection (1) above shall not apply to any water right for which a notice of claim or negotiated agreement is filed.

History.

I.C.,§ 42-1420, as added by 1986, ch. 220, § 20, p. 558 and 1986, ch. 230, § 4, p. 621; am. 1994, ch. 454, § 26, p. 1443; am. 1996, ch. 186, § 5, p. 584.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertions in paragraphs (1)(b) and (1)(c) were added by the compiler to supply the intended term.

CASE NOTES

Loss of Claim.

Private Agreements.

Decrees entered in a general adjudication shall be conclusive as to the nature and extent of all water rights in the adjudicated water system. A private settlement agreement cannot define, add, or subtract from the elements of a validly adjudicated water right. It can only limit, condition, or clarify the administration of the right as between the private parties to the agreement. City of Blackfoot v. Spackman, 162 Idaho 302, 396 P.3d 1184 (2017).

SBRA.

A petition for judicial review of an order by the director of the Idaho department of water resources affecting water use and rights was not an appropriate forum to reinterpret the scope of partial decrees entered in the Snake River Basin Adjudication (SRBA), because any interpretation inconsistent with the plain language of the decrees would impact the certainty and finality of the SRBA judgments. Requests for such interpretations must be made in the SRBA itself. Rangen, Inc. v. Idaho Dep’t of Water Res. (In re Distrib. of Water to Water Right Nos. 36-02551 & 36-07694 (Rangen, Inc.) IDWR Docket CM-DC-2011-004), 159 Idaho 798, 367 P.3d 193 (2016).

Cited

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

The Role of the Idaho Department of Water Resources in the Snake River Basin Adjudication, Phillip J. Rassier. 52 Idaho L. Rev. 289 (2016).

§ 42-1421. Procedures for adjudication of unperfected water rights initiated under state law — Director’s jurisdiction.

All persons claiming a water right based on an application or permit on the date of entry of the order commencing a general adjudication are not required to file a notice of claim unless required in accordance with subsection (7) of section 42-1409, Idaho Code. If the director approves the application in whole or in part during the pendency of a general adjudication and prior to filing the director’s report, the director shall notify the permit holder of the pendency of the general adjudication. A permit holder who is not required by the director to file a notice of claim in accordance with subsection (7) of section 42-1409, Idaho Code, may file a notice of claim at any time prior to filing the director’s report.
All persons claiming a water right based on a water right license existing on the date of entry of the order commencing a general adjudication shall file a notice of claim.
The district court shall decree any claimed water right for which proof of beneficial use has not been filed, but shall state that the right is conditioned upon completion of the appropriation in accordance with the laws of the state governing the appropriation of water and that the decreed right shall be subject to the terms of the license to appropriate water that is ultimately issued.
The director retains jurisdiction of all applications, permits and licenses under chapter 2, 3, 6 or 15, title 42, Idaho Code, to take action authorized by the conditions contained in any permit or license or by applicable law and action on any application for transfer under section 42-222, Idaho Code.
The director retains jurisdiction of all decreed water rights under chapters 2, 3 and 6, title 42, Idaho Code, to take action authorized by the conditions of any decree or by applicable law, including action on any application for transfer under section 42-222, Idaho Code.
The director retains jurisdiction of all beneficial use water rights under chapters 2, 3 and 6, title 42, Idaho Code, to take action authorized by applicable law.

History.

I.C.,§ 42-1421, as added by 1986, ch. 220, § 21, p. 558; am. 1994, ch. 454, § 27, p. 1443; am. 1996, ch. 186, § 6, p. 584.

§ 42-1422. Special master — Appointment — Powers and duties — Compensation — Disqualification — Review of special master’s report.

The district court may appoint one (1) or more special masters in any general adjudication.
The district court shall specify the powers and duties of a special master in the order of reference. The compensation and disqualification of a special master shall be governed by order or rule of the supreme court.
Objections to and hearing on the special master’s report shall be governed by rule 53(e) of the Idaho rules of civil procedure.

History.

I.C.,§ 42-1422, as added by 1986, ch. 230, § 5, p. 621; am. 1994, ch. 454, § 28, p. 1443.

STATUTORY NOTES

Compiler’s Notes.

This section was enacted by two 1986 acts — ch. 220, § 22, approved April 3, 1986, at 6:06 a.m., effective July 1, 1986, and ch. 230, § 5, approved April 3, 1986 at 1:14 p.m., effective July 1, 1986 — which were not compatible but conflicted and could not be compiled together. Therefore,§ 42-1422 as added by ch. 230, § 5 as the latest expression of the legislature was compiled. S.L. 1994, ch. 454, § 28 amended the compiled version.

CASE NOTES

Cited

McCray v. Rosenkrance, 135 Idaho 509, 20 P.3d 693 (2001); Bedke v. City of Oakley (In re SRBA), 149 Idaho 532, 237 P.3d 1 (2010); Black Canyon Irrigation Dist. v. State (In re SRBA Case No. 39576), 163 Idaho 144, 408 P.3d 899 (2018).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

§ 42-1423. Attorneys fees and costs against the state of Idaho, any state agency or any officer or employee.

No judgment for costs or award of attorneys fees against the state of Idaho, any state agency, or any officer or employee of the state of Idaho shall be allowed in any water rights adjudication proceeding pursuant to this chapter. The state of Idaho expressly refuses to waive its sovereign immunity to the imposition of any judgment for costs or award of attorney fees. The state of Idaho, state administrative agency, or any officer or employee shall not be required to pay any fees other than those provided in section 42-1414, Idaho Code, for appearing in a proceeding brought under this chapter or any appeal of a matter arising from such proceeding.

History.

I.C.,§ 42-1423, as added by 1994, ch. 454, § 30, p. 1443.

STATUTORY NOTES

Compiler’s Notes.

Former§ 42-1423 was amended and redesignated as§ 42-1428.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

§ 42-1424. Summary supplemental adjudication of water rights.

Where an adjudication of a water system has been commenced prior to July 1, 1986, or where an adjudication of a water system has been commenced pursuant to subsection (3) of section 42-1404, Idaho Code, resulting in a decree of any court of competent jurisdiction, and thereafter it appears that any claimant having the right to the use of any part of those waters was not included in the decree as a party, and the right was not determined thereby, or that a claimant subsequent to the decree has acquired any right to the use of those waters, the claimant may bring an action to have such right adjudicated in the manner specified in subsection (3) of this section.
Where a general adjudication of a water system has been commenced or enlarged after July 1, 1986, pursuant to section 42-1405 or 42-1406, Idaho Code, resulting in a decree of any court of competent jurisdiction, and thereafter, it appears that a claimant subsequent to the decree has acquired any right to the use of those waters, or that a claimant who possesses a water right designated in paragraphs (a) through (d) of subsection (1) of section 42-1420, Idaho Code, did not have those water rights determined, the claimant may bring an action to have those water rights adjudicated in the manner specified in subsection (3) of this section.
The following procedure shall be used for any supplemental adjudication:
1. A claimant may bring an action in the district court that originally heard the general adjudication to conduct a supplemental adjudication of the water rights of the claimant; and
2. The claimant shall, in his complaint, set forth his acceptance as binding upon him of all prior applicable decrees and the findings of fact and conclusions of law upon which they are based, shall request the commencement of a supplemental adjudication and shall set forth the claimed water right in a notice of claim form furnished by the director and attached to the complaint. Thereupon, the district court shall issue a summons and it shall be served upon the state of Idaho and the United States; and
3. After return of service of summons, the claimant shall cause to be published once a week for not less than three (3) weeks, a notice of the pendency and purpose of the action in such newspaper or newspapers as the judge of the district court may order, which notice shall contain the title of the court and the cause, the name and post-office address of the claimant, the date of priority of the water right claimed, the source of the water supply, the amount of water claimed, in general the nature of the water use, the approximate location of the point of diversion, and the place of use; and
4. Any person who may be injured and who objects to the water right claimed by the claimant, as described in the published notice, shall, within forty-five (45) days of the date of the first publication of notice, file with the district court written notice of such objection stating the reasons for the objection. A copy of the objection shall be served upon the claimant, upon all other parties of record in the action, the watermasters, and the director; and
5. The district court may request that the director determine the water rights in accordance with the procedures set forth in sections 42-1410 through 42-1413, Idaho Code; and
6. The director, within thirty (30) days after the district court requests the director to prepare a director’s report in accordance with sections 42-1410 through 42-1413, Idaho Code, shall file with the court notification as to whether the director will conduct an examination of the water rights claimed in the complaint in accordance with the procedures set forth in sections 42-1410 through 42-1413, Idaho Code; and
7. Notification to the court that the director will proceed in accordance with sections 42-1410 through 42-1413, Idaho Code, shall include an approximation of the time when the director’s report will be completed, and an estimate of the director’s costs that will be incurred in conducting the examination and in preparing the reports; and
8. The claimant shall then be required to advance to the director, the estimated costs to be incurred by the director in conducting the examination and in preparing the reports. Prior to the filing of the director’s report with the court, the claimant shall pay the balance of the director’s verified costs or be refunded any unused estimated costs advanced to the director. In the event that the claimant shall contest the director’s costs, the court shall then determine the reasonable costs to be paid by the claimant; and
9. The director shall file the report with the court upon completion and shall send a copy thereof to all parties to the action. Objections to the report of the director and hearing upon the objections shall be in accordance with the provisions of section 42-1412, Idaho Code; and
10. For those cases in which the director notifies the district court that the director does not intend to proceed in accordance with sections 42-1410 through 42-1413, Idaho Code, the cause may thereafter be brought on for hearing in open court, and any claimant having filed a timely objection with the court may appear and defend against the claim.
The court’s decree shall determine the rights of the claimant in accordance with the proof submitted but subject to the terms of the original decree or decrees. The decree shall contain or incorporate a statement of each element of a water right as stated in subsections (2) and (3) of section 42-1411, Idaho Code, as applicable. The decree shall also determine all other matters necessary for the efficient administration of the water rights. Whereupon water shall be distributed to the claimant in accordance therewith and in the same manner as though the claimant’s right had been included in the decree or decrees.
Any person who has appeared in the action may appeal in accordance with the Idaho appellate rules from the decree entered in the action hereby authorized to be brought.

History.

1911, ch. 224, § 1, p. 708; am. 1915, ch. 34, § 18, p. 112; reen. C.L., § 4623a; C.S., § 7036; I.C.A.,§ 41-1305; am. 1981, ch. 265, § 3, p. 561; am. 1986, ch. 220, § 6, p. 558; am. 1986, ch. 230, § 1, p. 621; am. and redesig. 1994, ch. 454, § 8, p. 1443; am. 1997, ch. 374, § 6, p. 1192.

STATUTORY NOTES

Compiler’s Notes.

This section was formerly compiled as§ 42-1405.

Effective Dates.

Section 4 of S.L. 1981, ch. 265 declared an emergency. Approved April 7, 1981.

Section 8 of S.L. 1997, ch. 374 declared an emergency. Approved March 24, 1997.

CASE NOTES

Application of Section.

This section does not confer jurisdiction to enter summary decree adjudicating right to use water claimed to have been developed and not part of the natural and public waters of the state. Union Cent. Life Ins. Co. v. Albrethsen, 50 Idaho 196, 294 P. 842 (1930).

In action for adjudication of priorities in well waters tributary to lake, complaint was not demurrable because of failure to join all users of water from lake as defendants since users not party to action were not bound by provisions of statute authorizing action and could not be injured by judgment therein, while intervening users had an ample opportunity to protect their rights as if suit had been brought under statute requiring that all water users be made parties. Owsley Canal Co. v. Henninger, 66 Idaho 485, 162 P.2d 389 (1945).

Definitions.

The word “acquired” necessarily means more than acquisition from a previous water owner whose rights had been adjudicated because the purchaser would be bound by the decree as to his predecessor in interest. Owsley Canal Co. v. Henninger, 66 Idaho 485, 162 P.2d 389 (1945).

The term “waters” is used in the generic sense and therefore includes all water distributed by the watermaster. Owsley Canal Co. v. Henninger, 66 Idaho 485, 162 P.2d 389 (1945).

Effect of Decree.

Decree does not adjudicate any right but simply gives prima facie right to delivery of so much water. Mays v. District Court, 34 Idaho 200, 200 P. 115 (1921).

Decree may be attacked by action brought in court of competent jurisdiction, at any time, by any aggrieved party. Mays v. District Court, 34 Idaho 200, 200 P. 115 (1921).

Anyone bringing action under this section must accept former decree as binding upon him. Mays v. District Court, 34 Idaho 200, 200 P. 115 (1921).

While this section refers to former decree as fixing permanent rights in stream, language means permanent between parties to decree or permanent in effect, as distinguished from prima facie effect of remedy herein provided. Mays v. District Court, 34 Idaho 200, 200 P. 115 (1921).

Decree void under this section affected rights of no one, raised an estoppel against no one, and did not have effect of making drain ditch appurtenant to land. Union Cent. Life Ins. Co. v. Albrethsen, 50 Idaho 196, 294 P. 842 (1930).

Jurisdiction of Courts.

One had right to invoke jurisdiction of courts to protect his right to use of water for irrigation purposes and secure adjudication of priority as against others and such right of action existed independent of statute. Mays v. District Court, 34 Idaho 200, 200 P. 115 (1921). Everything necessary to give jurisdiction must appear by the record in proceedings under this section. Union Cent. Life Ins. Co. v. Albrethsen, 50 Idaho 196, 294 P. 842 (1930).

The district court of county, in which was located all water wherein priority rights had been determined by federal court decree, had jurisdiction to fix priorities of canal company’s appropriations of additional waters tributary under permits subsequently granted it by state to bore wells, as well as those of other users of such waters whose priorities had not been fixed. Owsley Canal Co. v. Henninger, 66 Idaho 485, 162 P.2d 389 (1945).

Resolution of all claims arising within the scope of the Snake River basin adjudication (SRBA) district court are within the exclusive jurisdiction of the SRBA district court; any supplemental adjudication of water rights within the scope of the SRBA must be filed in the district court that originally heard the general adjudication. Sagewillow, Inc. v. Idaho Dep’t of Water Resources, 135 Idaho 24, 13 P.3d 855 (2000).

Nature of Action.

Remedy provided by this section is not exclusive. Mays v. District Court, 34 Idaho 200, 200 P. 115 (1921).

Action to ascertain and decree extent and priority of right to use of water partakes of nature of action to quiet title to real estate. Mays v. District Court, 34 Idaho 200, 200 P. 115 (1921).

Actions under this section are not brought against other water users but against administrative officers who distribute it. Mays v. District Court, 34 Idaho 200, 200 P. 115 (1921).

Parties.

Where the United States was interested in a contract with an irrigation district and such district brought an action for an adjudication of its water rights, which were affected by said contract, the United States was an indispensable party to such suit, and this was true notwithstanding the fact that the secretary of the interior was made a party, and that the contract in question was made and executed through and by him, and neither was the situation changed by the fact that there had been prior decree of the state court adjudicating such rights wherein the secretary was a party defendant. American Falls Reservoir Dist. No. 2 v. Crandall, 82 F.2d 973, modified, 85 F.2d 865 (9th Cir. 1936).

Construction company becoming equitable owner of irrigation works upon completion of system had sufficient interest to maintain action for supplemental adjudication of water rights though no formal conveyance was made until after commencement of action. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Watermaster holds over until his successor is elected or appointed and has qualified, and when office has not thus been vacated, he is proper party defendant. Big Wood Canal Co. v. Chapman, 45 Idaho 380, 263 P. 45 (1927).

Proof of Right.

Cited

Water rights are valuable property, and a claimant seeking a decree of a court to confirm his right to the use of water by appropriation must present sufficient evidence to enable the court to make definite and certain findings as to the amount of water actually diverted and applied, as well as the amount necessary for the beneficial use for which the water is claimed. Head v. Merrick, 69 Idaho 106, 203 P.2d 608 (1949). Cited Wyllie v. Kent, 28 Idaho 16, 152 P. 194 (1915); Independent Irrigation Co. v. Baldwin, 43 Idaho 371, 252 P. 489 (1926); Parke v. Bell, 97 Idaho 67, 539 P.2d 995 (1975); Nettleton v. Higginson, 98 Idaho 87, 558 P.2d 1048 (1977); Silverstein v. Carlson, 118 Idaho 456, 797 P.2d 856 (1990).

§ 42-1425. Accomplished transfers.

Legislative findings regarding accomplished transfers and the public interest.
1. The legislature finds and declares that, prior to the commencement of the Snake River basin adjudication, the northern Idaho adjudications, and the Bear River basin adjudication, many persons entitled to the use of water or owning land to which water has been made appurtenant either by decree of the court or under provisions of the constitution and statutes of this state changed the place of use, point of diversion, nature or purpose of use, or period of use of their water rights without compliance with the transfer provisions of sections 42-108 and 42-222, Idaho Code.
2. The legislature finds that many of these changes occurred with the knowledge of other water users and that the water has been distributed to the right as changed. The legislature further finds and declares that the continuation of the historic water use patterns resulting from these changes is in the local public interest provided no other existing water right was injured at the time of the change. Denial of a claim based solely upon a failure to comply with sections 42-108 and 42-222, Idaho Code, where no injury or enlargement exists, would cause significant undue financial impact to a claimant and the local economy. Approval of the accomplished transfer through the procedure set forth in this section avoids the harsh economic impacts that would result from a denial of the claim.
3. The legislature further finds and declares that examination of these changes by the director through the procedures of section 42-222, Idaho Code, would be impractical and unduly burdensome. The more limited examination of these changes provided for in this section constitutes a reasonable procedure for an expeditious review by the director while ensuring that the changes do not injure other existing water rights or constitute an enlargement of use of the original right.
Any change of place of use, point of diversion, nature or purpose of use, or period of use of a water right by any person entitled to use of water or owning any land to which water has been made appurtenant, either by decree of the court or under the provisions of the constitution and statutes of this state, prior to November 19, 1987, the date of commencement of the Snake River basin adjudication, prior to January 1, 2006, for the northern Idaho adjudications authorized by section 42-1406B, Idaho Code, and prior to the date of commencement of the Bear River basin adjudication authorized by section 42-1406C, Idaho Code, may be claimed in the applicable general adjudication even though the person has not complied with sections 42-108 and 42-222, Idaho Code, provided no other water rights existing on the date of the change were injured and the change did not result in an enlargement of the original right. Except for the consent requirements of section 42-108, Idaho Code, all requirements of sections 42-108 and 42-222, Idaho Code, are hereby waived in accordance with the following procedures:
1. If an objection is filed to a recommendation for accomplished change of place of use, point of diversion, nature or purpose of use, or period of use, the district court shall remand the water right to the director for further hearing to determine whether the change injured a water right existing on the date of the change or constituted an enlargement of the original right. After a hearing, the director shall submit a supplemental report to the district court setting forth his findings and conclusions. If the claimant or any person who filed an objection to the accomplished transfer is aggrieved by the director’s determination, they may seek review before the district court. If the change is disallowed, the claimant shall be entitled to resume use of the original water right, provided such resumption of use will not cause injury or can be mitigated to prevent injury to existing water rights. The unapproved change shall not be deemed a forfeiture or abandonment of the original water right. (b) This section is not applicable to any claim based upon an enlargement of use.

History.

I.C.,§ 42-1425, as added by 1994, ch. 454, § 31, p. 1443; am. 1996, ch. 186, § 7, p. 584; am. 2006, ch. 222, § 3, p. 661; am. 2020, ch. 50, § 2, p. 116.

STATUTORY NOTES

Amendments.

The 2006 amendment, by ch. 222, in subsection (1)(a), inserted “and the northern Idaho adjudications”; in subsection (2), inserted “and prior to January 1, 2006, for the northern Idaho adjudications authorized by section 42-1406B, Idaho Code” and “applicable” preceding “general adjudication”; and, near the beginning of subsection (2)(a), substituted “recommendation” for “claim.”

The 2020 amendment, by ch. 50, substituted “the northern Idaho adjudications, and the Bear River basin adjudication, many persons” for “and the northern Idaho adjudications, many persons” in paragraph (1)(a); and, near the middle of the first sentence in subsection (2), deleted “and” following “Snake River basin adjudication” and inserted “and prior to the date of commencement of the Bear River basin adjudication authorized by section 42-1406C, Idaho Code.”

Effective Dates.

Section 8 of S.L. 1996, ch. 186 declared and emergency. Approved March 12, 1996.

CASE NOTES

Alternate Point of Diversion.

Although no objections were made to a city’s claim that each of its wells had become an alternate point of diversion for its water rights under subsection (2), a condition requiring that the priority date and the quantity of water be specified for each well was properly imposed to protect other water users from injury to their rights. City of Pocatello v. State (In re SRBA Case No. 39576), 152 Idaho 830, 275 P.3d 845 (2012).

Burden of Proof.

The language of subsection (2)(a) of this section envisions that the party aggrieved by the director’s recommendation, whether that be the party claiming an accomplished transfer or the party claiming injury, has the burden of proof. Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996).

Constitutionality.

The “amnesty” statutes, this section and§§ 42-1426 and 42-1427, are constitutional as written and must be given due deference and respect. Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996).

Because this section’s limitations protect other water users from injury to their rights resulting from a recognition of the transfers that are memorialized in the adjudication and because under this section a water user cannot obtain a transfer that constitutes either an enlargement of the water right or otherwise injures water rights existing on the date of the change, this section is constitutional as written. Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996).

In General.

The purpose of this section is to streamline the adjudication process by providing a substitute for the transfer process required by§ 42-222 and to protect existing water uses which were the result of past transfers, regardless of compliance with statutory mandates. Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996).

Intervention.

Where conservation groups petitioned for leave to intervene in the Snake River basin adjudication (SRBA) to represent the interests of the public through the public trust doctrine and through the local public interest, the assertion of local public interest, which was the basis upon which the conservation groups were granted limited intervention by the district court, was eliminated and the order granting the motion vacated, by the repeal of§§ 42-1416 and 42-1416A and the enactment of this section. Idaho Conservation League, Inc. v. State, 128 Idaho 155, 911 P.2d 748 (1995).

Source.

Source of a water right cannot be changed under subsection (2). City of Pocatello v. State (In re SRBA Case No. 39576), 152 Idaho 830, 275 P.3d 845 (2012).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

§ 42-1426. Enlargements — Waiver of mandatory permit requirements.

Legislative findings regarding enlargements:
1. The legislature finds that several adjudications of water rights were commenced or will be commenced in the state of Idaho subsequent to the mandatory permit system provided in sections 42-201 and 42-229, Idaho Code. These adjudications include the following, with associated commencement dates:
  1. Snake River basin adjudication, November 19, 1987;
  2. Coeur d’Alene-Spokane River basin adjudication, November 12, 2008;
  3. Palouse River basin adjudication, March 1, 2017;
  4. Clark Fork-Pend Oreille River basin adjudication, not yet commenced; and
  5. Bear River basin adjudication, not yet commenced.
2. The legislature further finds that it is in the public interest to waive certain statutory provisions for the appropriation of water that has been diverted and applied to beneficial use to ensure the economic and agricultural base in the state of Idaho as it existed on the date of the commencement of an adjudication and to maintain historic water use patterns existing on that date.
The mandatory permit requirements of sections 42-201 and 42-229, Idaho Code, are waived, and a new water right may be decreed for the enlarged use of the original water right based upon the diversion and application to beneficial use, with a priority date as of the date of completion of the enlargement of use for any enlargement occurring on or before the commencement date of an adjudication; provided however, that the rate of diversion of the original water right and the separate water right for the enlarged use, combined, shall not exceed the rate of diversion authorized for the original water right; and further provided, that the enlargement in use did not injure water rights existing on the date of the enlargement of use. An enlargement may be decreed if conditions directly related to the injury can be imposed on the original water right and the new water right that mitigate any injury to a water right existing on the date of enactment of this act. If injury to a water right later in time cannot be mitigated, then the new right for the enlarged use shall be advanced to a date one (1) day later than the priority date for the junior water right injured by the enlargement. It is further provided that any such enlargement of use allowed in a general adjudication shall not constitute an abandonment or forfeiture of the original water right to the extent of current use. (3) The director shall publish a notice of enlargement of water right for all water rights recommended under this section. The notice shall contain a summary of the notice of claim and shall be published in the same manner as notices for applications to appropriate water in section 42-203A, Idaho Code. Any person who has filed an application for a water right prior to the enactment of this act or who has been issued a permit for a water right prior to commencement of an adjudication but who has not filed a claim in an adjudication shall have thirty (30) days from the date of last publication of the notice of enlargement of a water right under this section to file a petition with the department of water resources to assert any claimed injury from the enlargement. No appeal of the determination of the department shall be allowed. If the applicant or permittee is dissatisfied with the determination of the department on any claim of injury, the sole remedy is to intervene in the general adjudication and assert their claim of injury in an objection to the water right.

Persons entitled to the use of water or owning any land to which water has been made appurtenant by decree, license or constitutional appropriation have, through water conservation and other means, enlarged the use of said water without increasing the rate of diversion and without complying with the mandatory permit system adopted by the legislature. Enlargements have been done with the knowledge of other water users, and water has been distributed based upon the right as enlarged. Junior water users made appropriations based upon a water system that reflected these enlarged uses. Thus, the legislature further finds and declares that it is in the public interest to waive the mandatory permit requirements for these enlargements in use prior to the commencement of a general adjudication, as long as such enlargements in use did not increase the rate of diversion of the original water right or exceed the rate of diversion for irrigation provided in section 42-202, Idaho Code, after the enlargement of use, and the enlargement of use did not reduce the quantity of water available to other water rights existing on the date of the enlargement in use.

History.

I.C.,§ 42-1426, as added by 1994, ch. 454, § 32, p. 1443; am. 2000, ch. 311, § 1, p. 1048; am. 2020, ch. 50, § 3, p. 116.

STATUTORY NOTES

Amendments.

The 2020 amendment, by ch. 50, in subsection (1), rewrote the first sentence in paragraph (1), which formerly read: “The legislature finds that prior to the commencement of the Snake River basin adjudication and subsequent to the mandatory permit system provided in sections 42-201 and 42-229, Idaho Code, persons entitled to the use of water or owning any land to which water has been made appurtenant by decree, license or constitutional appropriation have, through water conservation and other means, enlarged the use of said water without increasing the rate of diversion and without complying with the mandatory permit system adopted by the legislature”, adding paragraphs (i) to (v), and, in paragraph (b), substituted “commencement of an adjudication” for “commencement of the Snake River basis adjudication” near the end; in the first sentence in subsection (2), substituted “the commencement date of an adjudication” for “November 19, 1987”, near the middle; and substituted “commencement of an adjudication” for “enactment of this act” near the middle of the third sentence in subsection (3).

Compiler’s Notes.

The phrase “enactment of this act” in subsections (2) and (3) refers to the enactment of S.L. 1994, chapter 454, which was approved and effective on April 12, 1994.

CASE NOTES

Burden of Proof.

Under the process established by this section, either party who objects to the director’s determination may assert that objection in the general adjudication and either party who asserts injury, whether that be the applicant for enlargement or the person who claims injury by the enlargement, has the burden of establishing the claim in general adjudication. Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996).

Constitutionality.

The “amnesty” statutes, this section and§§ 42-1425 and 42-1427, are constitutional as written and must be given due deference and respect. Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996).

Because this section provides that only those enlargements which do not increase the rate of diversion, do not injure other water rights existing on the date of enlargement, and which fully mitigate any potential injury to junior water rights existing as of the date of enactment are permitted, this section is constitutional as written; it provides that an enlargement cannot be allowed that would injure a junior appropriator. Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996).

Because the legislature has the right to define the rights claimants have to water and may provide that a court shall decree those rights, the mitigation provision in subsection (2) of this section does not violate the doctrine of separation of powers. Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996).

Enlargement of Water Rights.

Irrigation district’s request for an enlargement of water rights was properly denied under this section if the water in question was characterized as drain or waste water because amnesty was not allowed for water coming from an unappropriated source. If the water was treated as groundwater, relief was still not granted because this section required subordination to those priority rights established prior to April 12, 1994. A & B Irrigation Dist. v. Aberdeen-American Falls Ground Water Dist. (In re SRBA Case No. 39576), 141 Idaho 746, 118 P.3d 78 (2005).

Irrigation district did not qualify for the rebuttable presumption in§ 42-1416 (repealed) because an enlargement of water rights would have caused a per se injury to the rights of a junior appropriator; therefore, the only statutory authority by which to acquire a valid water right for an enlargement was under subsection (2) of this section. A & B Irrigation Dist. v. Aberdeen-American Falls Ground Water Dist. (In re SRBA Case No. 39576), 141 Idaho 746, 118 P.3d 78 (2005).

In General.

This section provides for a waiver of the mandatory permit requirements of§§ 42-201 and/or 42-229 and a decree of a new water right for an enlarged use of the original water right. Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the Snake River Basin Adjudication, Ann Y. Vonde et al. 52 Idaho L. Rev. 53 (2016).

§ 42-1427. Descriptions of water rights — Reporting and decreeing elements of a decreed or licensed water right.

Legislative findings:
1. The legislature finds that existing water rights are not uniformly described. Many old water rights were simply defined by source, priority date and diversion rate. Over time, the legislature and courts have made this original description of a water right more specific by the addition of other elements. Because of the increasing demand for water, it is important that the elements of a water right be standardized to allow for fair and efficient administration of the limited water supply. One (1) purpose of chapter 14, title 42, Idaho Code, is to establish, through an adjudication a uniform description for surface water rights, ground water rights and water rights which include storage.
2. Because of the passage of time it is not possible to establish with any degree of certainty the undefined elements of a decreed or licensed water right as they existed on the date the right was established, because water delivery has occurred based upon the historic water use patterns and custom, and because attempts to define elements of a water right based upon unknown conditions in existence on the date of the establishment of the water right could result in significant impacts upon the claimant, the local economy and tax base, the legislature finds that it is in the public interest to provide a mechanism to decree previously undefined elements of existing water rights based upon conditions existing on the date of commencement of the adjudication provided the claimant is not exceeding any previously determined and recorded element of the decreed or licensed water right.
If a licensed or decreed water right does not describe all of the elements of a water right required in section 42-1409, Idaho Code, the director shall include in his report recommendations for those elements not defined by the prior license or decree based upon the extent of beneficial use of the water right as of the date of the commencement of an adjudication.

History.

I.C.,§ 42-1427, as added by 1994, ch. 454, § 33, p. 1443; am. 1994, ch.. 455, § 6, p. 1478.

STATUTORY NOTES

Effective Dates.

Section 35 of S.L. 1994, ch. 454 declared an emergency. Approved April 12, 1994.

Section 8 of S.L. 1994, ch. 455 declared an emergency. Approved April 12, 1994.

CASE NOTES

Constitutionality.

The “amnesty” statutes,§§ 42-1425, 42-1426 and this section, are constitutional as written and must be given due deference and respect. Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996). Because this section clearly sets forth that a claimant cannot attempt to exceed any previously determined and recorded element of the decreed or licensed water right merely because one or more elements of the water right are ambiguous, this section does not provide for an enlargement of an existing water right and does not contain any constitutional infirmities. Fremont-Madison Irrigation Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996).

SBRA.

Cited

City of Blackfoot v. Spackman, 162 Idaho 302, 396 P.3d 1184 (2017).

§ 42-1428. Severability.

History.

I.C.,§ 42-1423, as added by 1986, ch. 220, § 23, p. 558; am. and redesig. 1994, ch. 454, § 29, p. 1443.

STATUTORY NOTES

Compiler’s Notes.

This section was formerly compiled as§ 42-1423.

The term “this act” refers to S.L. 1986, chapter 220, which is codified as§§ 31-2402, 31-2407, 42-1401, 42-1401A, 42-1402, 42-1404, 42-1405, 42-1406, 42-1407, 42-1408, 42-1409, 42-1410, 42-1411, 42-1412, 42-1413, 42-1415, 42-1417, 42-1419 to 42-1421, 42-1424, 42-1428, and 42-1777. The reference probably should be to “this chapter,” being chapter 14, title 42, Idaho Code.

CASE NOTES

Cited

State ex rel. Higginson v. United States, 128 Idaho 246, 912 P.2d 614 (1995).

Chapter 15 MINIMUM STREAM FLOW

Sec.

§ 42-1501. Legislative purpose — Minimum stream flow declared beneficial use.

The legislature of the state of Idaho hereby declares that the public health, safety and welfare require that the streams of this state and their environments be protected against loss of water supply to preserve the minimum stream flows required for the protection of fish and wildlife habitat, aquatic life, recreation, aesthetic beauty, transportation and navigation values, and water quality. The preservation of the water of the streams of this state for such purposes when made pursuant to this act is necessary and desirable for all the inhabitants of this state, is in the public interest and is hereby declared to be a beneficial use of such water. The legislature further declares that minimum stream flow is a beneficial use of water of the streams of this state for the purpose of protecting such waters from interstate diversion to other states or by the federal government for use outside the boundaries of the state of Idaho. Minimum stream flows as established hereunder shall be prior in right to any claims asserted by any other state, government agency, or person for out of state diversion. It is, therefore, necessary that authority be granted to receive, consider, approve or reject applications for permits to appropriate water of the streams of this state to such beneficial uses to preserve such water from subsequent appropriation to other beneficial uses under the provisions of chapter 2, title 42, Idaho Code.

History.

I.C.,§ 42-1501, as added by 1978, ch. 345, § 11, p. 884.

STATUTORY NOTES

Prior Laws.

Former§§ 42-1501 to 42-1505, which comprised S.L. 1937, ch. 95, §§ 1, 4 to 6, 8, p. 132, were repealed by S.L. 1969, ch. 469, § 2.

Compiler’s Notes.

The words “this act” in the second sentence refer to S.L. 1978, chapter 345, which is compiled as§§ 42-241 to 42-247, 42-1501 to 42-1505, 42-1736B, and 42-1756. The reference probably should be to “this chapter,” being chapter 15, title 42, Idaho Code.

CASE NOTES

Public Interest Standing.

Cited

Shokal v. Dunn, 109 Idaho 330, 707 P.2d 441 (1985).

§ 42-1502. Definitions.

Whenever used in this act, the terms:

“Appropriate” or “appropriation” mean [means] the identification of a beneficial use and place of in-stream use of the waters of a stream. It shall not be construed to require any kind of physical structure or physical diversion from the stream;
“Board” means the Idaho water resource board;
“Department” means the Idaho department of water resources;
“Director” means the director of the Idaho department of water resources;
“Stream” means any lake, spring, creek, stream, river or other natural body of standing or moving water which is subject to appropriation under the laws of the state of Idaho;
“Minimum stream flow” means the minimum flow of water in cubic feet per second of time or minimum lake level in feet above mean sea level required to protect the fish and wildlife habitat, aquatic life, recreation, aesthetic beauty, navigation, transportation, or water quality of a stream in the public interest;
“Unappropriated water” means water which is not subject to diversion and use under any prior existing water right established by diversion and application to a beneficial use or by application, permit or license on file or issued by the director under the provisions of chapter 2, title 42, Idaho Code, with a priority of water right date earlier than an application for appropriation of minimum stream flow filed under the provisions of this act.

History.

I.C.,§ 42-1502, as added by 1978, ch. 345, § 11, p. 884.

STATUTORY NOTES

Cross References.

Water resource board,§ 42-1732.

Prior Laws.

Former§ 42-1502 was repealed. See Prior Laws,§ 42-1501.

Compiler’s Notes.

The words “this act” in the introductory paragraph and in subsection (g) refer to S.L. 1978, chapter 345, which is compiled as§§ 42-241 to 42-247, 42-1501 to 42-1505, 42-1736B, and 42-1756. The reference probably should be to “this chapter,” being chapter 15, title 42, Idaho Code.

The bracketed word “means” in subsection (a) was inserted by the compiler to correct the enacting legislation.

§ 42-1503. Application to appropriate — Process — Judicial review.

Whenever the board desires to appropriate a minimum stream flow of the unappropriated waters of any stream, it shall submit an application to the director. Such application shall be made upon forms to be furnished by the director and shall include:

The name of the stream and legal description of the point on the stream where the minimum stream flow is proposed to be appropriated and determined;
The minimum stream flow proposed;
The purpose for which the minimum stream flow appropriation is proposed to be made;
The period of time or season of the year during which said appropriation is proposed; and
Such other information as shall be required by the form furnished by the director.

Upon the receipt of an application filed under the provisions of this act, the director shall forward a copy thereof to the departments of fish and game, environmental quality, parks and recreation, and any other public entity likely to have an interest or knowledge in the matter. The director shall also prepare a notice describing the proposed appropriation of minimum stream flow and cause said notice to be published once each week in two (2) consecutive weekly issues of a newspaper published within the county where the appropriation of minimum stream flow is proposed, if there is such newspaper, otherwise in a newspaper of general circulation within the county. The director may also give other notice of the proposed appropriation in such manner and to such persons or organizations as he may determine. Such notice shall specify the time and place for a public hearing to be held concerning the proposed appropriation of minimum stream flow. Such hearing shall be held in accordance with the provisions of section 42-1701A(1) and (2), Idaho Code. The director shall have power to administer oaths and to require the attendance of such witnesses and the production of such books, records, and papers as he may desire at the hearing and for that purpose the director may apply to the district court for a subpoena for any witnesses or a subpoena duces tecum to compel the production of any books, records, or papers which shall be served and returned in the same manner as a subpoena in a civil case. In case of any disobedience or neglect to obey a subpoena or subpoena duces tecum it shall be the duty of the district court in any county of this state in which such disobedience, neglect, or refusal occurs, or any judge thereof, on application by the director, to compel obedience by proceedings for contempt as in the case of a subpoena issued by a regularly constituted court. Upon the conclusion of the hearings and completion of any investigation conducted by the director, he shall enter his findings in writing approving the application in whole, or in part, or upon conditions or rejecting said application. Approval of any such application must be based upon a finding that such appropriation of minimum stream flow:

(a) will not interfere with any vested water right, permit, or water right application with priority of right date earlier than the date of receipt in the office of the director of a complete application for appropriation of minimum stream flow filed under the provisions of this act;

(b) is in the public, as opposed to private, interest;

(c) is necessary for the preservation of fish and wildlife habitat, aquatic life, recreation, aesthetic beauty, navigation, transportation, or water quality of the stream;

(d) is the minimum flow or lake level and not the ideal or most desirable flow or lake level; and

(e) is capable of being maintained as evidenced by records of stream flows and water levels and the existing or future establishment of necessary gauging stations and bench marks.

A copy of the director’s findings shall be mailed to the board and to each person or organization who gave testimony in support of or in opposition to the proposed appropriation. The board or any person testifying at a hearing who is aggrieved by a decision of the director shall have the right to have that decision reviewed by the courts pursuant to section 42-1701A(4), Idaho Code. Approved applications shall be submitted to each legislature by the fifth legislative day of each regular session, and: (i) shall not become finally effective until affirmatively acted upon by concurrent resolution of the Idaho legislature; or (ii) except that if the legislature fails to act prior to the end of the regular session to which the application was submitted, the application shall be considered approved.

History.

I.C.,§ 42-1503, as added by 1978, ch. 345, § 11, p. 884; am. 1980, ch. 238, § 14, p. 526; am. 2001, ch. 103, § 80, p. 253.

STATUTORY NOTES

Cross References.

Department of environmental quality,§ 39-104 et seq.

Department of parks and recreation,§ 67-4218 et seq.

Fish and game department,§ 36-101 et seq.

Prior Laws.

Former§ 42-1503 was repealed. See Prior Laws,§ 42-1501.

Compiler’s Notes.

The words “this act” in two places in this section refer to S.L. 1978, chapter 345, which is compiled as§§ 42-241 to 42-247, 42-1501 to 42-1505, 42-1736B, and 42-1756. The reference probably should be to “this chapter,” being chapter 15, title 42, Idaho Code.

OPINIONS OF ATTORNEY GENERAL

Constitutionality.

Despite the presumption in favor of a statute’s constitutionality, the provision in this section that purports to authorize the legislature to reject, by concurrent resolution, a minimum stream flow approved by the director of the state department of water resources contravenes Idaho Const., Art. II, § 1, Idaho Const., Art. III, §§ 1 and 15, and Idaho Const., Art. IV, § 10.OAG 87-6.

§ 42-1504. Request to file application.

Any person, association, municipality, county, state or federal agency may, in writing, request that the board consider the appropriation of a minimum stream flow of the unappropriated waters of any stream. Said request shall be in writing and provide the same information required in the form provided for by section 42-1503, Idaho Code. The board shall consider said request within six (6) months after it is filed and may proceed to reject or accept the proposal. There shall be no right of review of any board decision rejecting a request under this section. If the board decides that the request has merit, the board shall proceed as provided in this act. The board may hold hearings in reaching its decision and shall notify the requesting party of its decision.

History.

I.C.,§ 42-1504, as added by 1978, ch. 345, § 11, p. 884.

STATUTORY NOTES

Prior Laws.

Former§ 42-1504 was repealed. See Prior Laws,§ 42-1501.

Compiler’s Notes.

The words “this act” in the next-to-last sentence refer to S.L. 1978, chapter 345, which is compiled as§§ 42-241 to 42-247, 42-1501 to 42-1505, 42-1736B, and 42-1756. The reference probably should be to “this chapter,” being chapter 15, title 42, Idaho Code.

CASE NOTES

Exceptions to Diversion Requirement.

The limited public purpose exception to the diversion requirement did not apply to a claim where the claimant had not requested that an application be filed by the water resource board for appropriating a minimum streamflow. State v. United States, 134 Idaho 106, 996 P.2d 806 (2000).

§ 42-1505. Priority date — Administration.

In his direction and control of the distribution of water from the streams of this state under the provisions of chapter 6, title 42, Idaho Code, the director shall consider any approved application for appropriation of minimum stream flow filed under the provisions of this act as a water right with priority date as of the date of receipt in the office of the director of a complete application. Water shall not be deemed to be available to fill any water right of later priority date if diversion of such water would result in a decrease in the flow of the stream or level of the lake below the minimum stream flow or minimum lake level specified in said approved application for appropriation of minimum stream flow at the locations described in said approved application.

History.

I.C.,§ 42-1505, as added by 1978, ch. 345, § 11, p. 884.

STATUTORY NOTES

Prior Laws.

Former§ 42-1505 was repealed. See Prior Laws,§ 42-1501.

Compiler’s Notes.

The words “this act” in the first sentence refer to S.L. 1978, chapter 345, which is compiled as§§ 42-241 to 42-247, 42-1501 to 42-1505, 42-1736B, and 42-1756. The reference probably should be to “this chapter,” being chapter 15, title 42, Idaho Code.

§ 42-1506. Lemhi river — Minimum stream flow appropriation.

The water resource board is hereby authorized and directed to appropriate and hold in trust for the people of the state of Idaho a minimum stream flow water right in a designated reach of the Lemhi river in accordance with the provisions of this section. The minimum stream flow appropriation in the designated reach shall be in the amount of thirty-five (35) cfs from January 1 through December 31, provided that fifteen (15) cfs of the appropriation shall be subordinated to all diversions, including high waters or flood waters, authorized under the Lemhi river basin decree (Lemhi County Case No. 4948). The designated reach begins at water diversion L-6 located on the Lemhi river in the southeast quarter (¼) of section twenty-four (24), township twenty-one (21) north, range twenty-two (22) east of the Boise meridian, and ends at the confluence of the Lemhi river with the Salmon river near the southwest corner of section thirty-two (32), township twenty-two (22) north, range twenty-two (22) east of the Boise meridian, Lemhi county.
The water resource board shall appropriate the minimum stream flow water right authorized under this section in accordance with the provisions of section 42-1503, Idaho Code. In acting upon the application for permit, the director of the department of water resources need not determine that the appropriation is capable of being maintained based upon records of existing stream flows because it is anticipated that the water right will be maintained through operation of the water supply bank within the Lemhi river basin consistent with the provisions of section 42-1765A, Idaho Code.
Upon the board’s filing of an application for permit to appropriate water as directed by this section, the director of the department of water resources is authorized and directed, on an interim basis pending final action on the application for permit, to distribute water under the filing in accordance with the doctrine of prior appropriation using a priority date as of the filing of the application for permit.

History.

I.C.,§ 42-1506, as added by S.L. 2001, ch. 373, § 1, p. 1309.

STATUTORY NOTES

Cross References.

Water resource board,§ 42-1732.

Prior Laws.

Former section 42-1506, which comprised S.L. 1939, ch. 27, § 1, p. 58, was repealed by S.L. 1969, ch. 469, § 2.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 3 of S.L. 2001, ch. 373 declared an emergency. Approved April 10, 2001.

§ 42-1507. Snake river water rights agreement minimum stream flow water rights established.

The legislature hereby establishes minimum stream flow water rights for the stream reaches identified by resolution of the Idaho water resource board, adopted February 8, 2005. The elements of the minimum stream flow water rights established by this section are as defined by the board’s resolution and the attachments thereto. The board shall hold the minimum stream flow water rights in trust for the people of the state of Idaho, and the board shall file claims for the rights in the Snake river basin adjudication. These minimum stream flow water rights shall have a priority date as of April 1, 2005, and shall be subordinated to future domestic, commercial, municipal, and industrial water uses and such other future uses as described in the December 17, 2004, resolution of the Idaho water resource board providing approval of the Snake River Water Rights Agreement of 2004 (“Mediator’s Term Sheet” dated April 20, 2004, and submitted on that date to the SRBA Court in SRBA Consolidated Subcase 03-10022 and SRBA Consolidated Subcase 67-13701, with all appendices to the document), as approved, ratified, and confirmed by the 108th Congress of the United States in the “Snake River Water Rights Act of 2004,” Pub. L. No. 108-447 (H.R. 4818), 118 Stat. 3431 to 3441 (December 8, 2004).
No fee shall be required in connection with the filing of claims in the Snake river basin adjudication for the minimum stream flow water rights established by this section.
Any minimum stream flow water rights established by this section that are not capable of being maintained may be satisfied and maintained through operation of the water supply bank authorized by sections 42-1761 through 42-1765, Idaho Code, inclusive, and other available methods consistent with Idaho law.
In the event the state decides to change any minimum stream flow water rights created by this section, it will provide notice of such change and consult with the Nez Perce tribe on a government-to-government basis as provided in the Snake River Water Rights Agreement of 2004. Provided however, nothing herein or in the Snake River Water Rights Agreement of 2004 shall be construed or interpreted to abridge, impair or limit the authority of the state of Idaho to create, modify or terminate any minimum stream flow water right established by this section.
This section shall not become effective until the governor issues a proclamation certifying that all conditions for the effectiveness of the Snake River Water Rights Agreement of 2004 have been satisfied.

History.

I.C.,§ 42-1507, as added by 2005, ch. 150, § 1, p. 466.

STATUTORY NOTES

Compiler’s Notes.

On April 27, 2007, the governor issued a proclamation stating that the requirements of subsection (5), certification that all conditions for the effectiveness of the Snake River Rights Agreement of 2004 have been satisfied, have been met. As of that date, the provisions of this section are operative.

The words and date enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 2 of S.L. 2005, ch. 150 declared an emergency. Approved March 24, 2005.

§ 42-1508. Wood River basin

Enhancement of instream flows and downstream water supplies. [Repealed.]

Repealed by S.L. 2007, ch. 262, § 4, effective December 31, 2012.

History.

I.C.,§ 42-1508, as added by 2007, ch. 262, § 1, p. 777.

Chapter 16 ARTESIAN WELLS

Sec.

§ 42-1601. Well not controlled a common nuisance — Approval of director — Reservoired water — Maintenance of artesian wells.

Any person owning or controlling a flowing artesian well, which is not capped, equipped or furnished with such mechanical appliance as will readily control the flow of water from such well, shall be guilty of a misdemeanor and such well is hereby declared to be a common nuisance; and any person owning or controlling a flowing artesian well, which is capped, equipped or furnished with a mechanical appliance for arresting and preventing the flow of water therefrom, which cap, equipment or mechanical appliance is of a type that has not been approved by the director of the department of water resources, shall be guilty of a misdemeanor and such well is hereby declared to be a common nuisance: provided, however, that in cases where the waters of artesian wells are reservoired and controlled so that waste is not committed and a common nuisance created and where the pressure of water in a reservoir automatically causes wells to cease to flow, such mechanical contrivances may be dispensed with by obtaining the consent of the director of the department of water resources.
Any person owning or controlling an artesian well shall maintain the well to prevent waste or contamination of ground waters through leaky casings, pipes, fittings, valves, pumps, seals or through leakage around the outside of the casings, whether the leakage is above or below the land surface.
The owner of the land on which the well is located shall be deemed to own the well unless a deed, covenant, contract, easement, or other documentation acceptable to the director is available to demonstrate that the well is owned by another.
If a ground water management district created pursuant to chapter 51, title 42, Idaho Code, has adopted and is implementing a plan for the repair of leaking artesian wells acceptable to the director of the department of water resources, then the director of the department of water resources will not take any administrative or judicial action to require repair of a well within the ground water management district if the person owning the well is an active participant in the ground water management district.

History.

1921, ch. 196, § 1, p. 399; I.C.A.,§ 41-1401; am. 1987, ch. 347, § 10, p. 741; am. 1995, ch. 294, § 1, p. 1036.

STATUTORY NOTES

Cross References.

Penalty for violation of provisions of chapter, § 42-1605. RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-1602. Unnecessary flow unlawful — Use for domestic purposes.

It shall be unlawful for the owner, tenant, or occupant of the land upon which such well is situated to cause, permit, or suffer, such common nuisance, or suffer or permit it to remain or continue; and it shall be unlawful for any person owning, possessing or occupying any land, upon which is situated an artesian well, to cause, suffer or permit the water to unnecessarily flow from such well or to go to waste: provided, however, that it shall be lawful for any such person to insert a stop and waste cock, not exceeding one (1) inch in diameter, in the piping of such well and to take and use water therefrom through such stop and waste cock at any time for household, stock or domestic purposes.

History.

1921, ch. 196, § 2, p. 399; I.C.A.,§ 41-1402.

§ 42-1603. Application for approval of control device — Approval necessary.

Every person referred to in section 42-1602[, Idaho Code,] shall apply to the director of the department of water resources for the approval of any installed or proposed mechanical device for controlling the flow of water from such artesian well; and in such application shall describe the cap, equipment or mechanical appliance, with which such well is equipped or with which it is proposed to equip any such well, and shall change, alter or install only such equipment as shall be approved by the director of the department of water resources.

History.

1921, ch. 196, § 3, p. 399; I.C.A.,§ 41-1403.

STATUTORY NOTES

Compiler’s Notes.

The name of the director of the department of water administration (formerly the commissioner of reclamation) has been changed to the director of the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 31 (§ 42-1804).

The bracketed insertion near the beginning of the section was added by the compiler to conform to the statutory citation style.

§ 42-1604. Artesian well defined.

For the purposes of this chapter, an artesian well is defined as any well, as defined in subsection (b) of section 42-230, Idaho Code, which encounters pressurized ground water or low temperature geothermal resource under sufficient head to rise above the elevation at which it was first encountered whether or not the fluid flows at land surface. If the fluid level stands above land surface, the well is a flowing artesian well.

History.

1921, ch. 196, § 4, p. 399; I.C.A.,§ 41-1404; am. 1987, ch. 347, § 11, p. 741.

§ 42-1605. Enforcement procedure — Injunctive relief — Criminal penalties.

When the director of the department of water resources determines that any person is in substantial violation of any provision of this chapter or any rule, condition of approval or order issued or promulgated pursuant to this chapter, the director may commence an administrative enforcement action by issuing a written notice of violation in accordance with the provisions of section 42-1701B, Idaho Code. The director may petition the district court for injunctive relief in order to prevent damage pending the outcome of enforcement proceedings before the director.
Criminal penalties. Any person who willfully or negligently violates any of the provisions of this chapter shall, for each offense, be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than three hundred dollars ($300) and not more than one thousand dollars ($1,000). Each day upon which such violation occurs shall constitute a separate violation.

History.

1921, ch. 196, § 5, p. 399; I.C.A.,§ 41-1405; am. 1987, ch. 347, § 12, p. 741; am. 1993, ch. 216, § 34, p. 587; am. 1998, ch. 173, § 7, p. 595.

§ 42-1606. [Reserved.]

The director of the department of water resources shall initiate a program to inventory and locate artesian wells throughout the state.
The director of the department of water resources shall plug abandoned artesian wells or artesian wells where the owner cannot be ascertained.
For artesian wells which are not in compliance with Idaho minimum well construction standards, the owner shall be required to have the well repaired in compliance with Idaho minimum well construction standards promulgated pursuant to section 42-238, Idaho Code, so as to preclude the wasting or commingling of water. The repairs shall be paid for by the owner of the well and, if repairs are not made within a maximum of one (1) year following notification, the director of the department of water resources may order the owner to plug the well. The director upon good cause shown may grant an additional time period not in excess of two (2) years for the owner to make repairs of the well. If the well is not plugged within thirty (30) days of the order, or other longer time period as provided in the order, the director may plug or cause the well to be plugged at the owner’s expense.
The director of the department of water resources may implement a cost-sharing program to assist owners of wells which have been ordered repaired or plugged pursuant to subsection (3) of this section. Any cost-share provided by the department shall be limited to fifty percent (50%) of the total cost to repair or plug the well to bring it into compliance with Idaho minimum well construction standards. Cost-share shall be based on an applicant’s ability to pay or ability to obtain other funding and the amount of money available for this purpose.
Any person owning or controlling an artesian well which has been ordered repaired or plugged by the director of the department of water resources pursuant to subsection (3) of this section shall be liable for the costs of the repair or plugging if it was undertaken by the department of water resources. All moneys owed under the provisions of this section shall be paid to the director. The director shall charge interest on the amount owed in an amount no greater than twelve percent (12%) per annum. The director shall deposit all moneys collected into the water administration account. Moneys owed pursuant to the provisions of this section shall be collected in a civil action brought in the district court in accordance with subsection (6) of this section.

History.

(6) Any person aggrieved by a final order of the director entered pursuant to the provisions of this section may appeal to the district court within twenty-eight (28) days of the issuance of the order. The appeal shall be heard and determined in accordance with chapter 52, title 67, Idaho Code. The director through the attorney general may petition the district court for injunctive relief or a temporary restraining order to prevent irreparable damage pending the outcome of proceedings before the director pursuant to the provisions of this section. The director through the attorney general may commence a civil action in the district court to enforce the provisions of any final order of the director issued pursuant to the provisions of this section. History.

I.C.,§ 42-1607, as added by 1987, ch. 347, § 13, p. 741; am. 1993, ch. 216, § 35, p. 587; am. 2019, ch. 215, § 1, p. 653.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Water administration account,§ 42-238a.

Amendments.

The 2019 amendment, by ch. 215, rewrote and redesignated the former last two sentences in subsection (3), which read: “For the period of July 1, 1987, to June 30, 1992, the director of the department of water resources shall promulgate rules to implement a cost-sharing program to assist owners of wells which have been ordered repaired or plugged pursuant to this subsection. The rules shall provide that up to fifty percent (50%) of the cost of the repairs or plugging shall be paid by the department of water resources based on an applicant’s ability to pay and moneys available for this purpose” as present subsection (4), and redesignated the subsequent subsections accordingly.

§ 42-1607. Inventory of artesian wells — Plugging wells.

Chapter 17 DEPARTMENT OF WATER RESOURCES — WATER RESOURCE BOARD

Sec.

§ 42-1701. Creation of department of water resources — Director — Qualifications — Duties.

There is hereby created the department of water resources, which shall, for the purposes of section 20, article IV, of the constitution of the state of Idaho, be an executive department of the state government.
The executive and administrative authority of the department, except such authority as is specifically assigned by law to the water resource board, shall be vested in a director of the department of water resources who shall be: a licensed civil or agricultural engineer with not less than five (5) years of experience in the active practice of such profession; a registered geologist with not less than five (5) years of experience in the active practice of hydrology; or a hydrologist holding a bachelor’s or advanced degree in hydrology from a college or university accredited by a nationally recognized accrediting organization and with not less than five (5) years of experience in surface water and ground water modeling, water delivery and water measurement. The director of the department of water resources shall also demonstrate experience and expertise in interpreting and applying Idaho water law and shall be familiar with irrigation and other water use practices in Idaho.
The director may delegate such duties as are imposed upon him by law to an employee of the department of water resources whenever in the opinion of the director, such delegation is necessary for the efficient administration of his duties.
The director shall organize the department into such divisions and other administrative subunits as may be necessary in order to efficiently administer the department. All employees of the department, except the director, shall be selected and appointed by the director in conformance with the provisions of chapter 53, title 67, Idaho Code.
The director and/or employees of the department of water resources may make reasonable entry upon any lands in the state for the purpose of making investigations and surveys, or for other purposes necessary to carry out the duties imposed by law.
1. Any authorization or order of the Idaho public utilities commission, under the provisions of section 61-328, Idaho Code, approving the sale, assignment or transfer of hydropower water rights used in the generation of electric power shall be issued only upon such conditions as the director of the department of water resources shall require as necessary to prevent any change in use of water under the water rights held for hydropower purposes that would cause injury to any water rights existing on the date of the sale, assignment or transfer. Any such conditions shall ensure that the public interest, as it pertains to the use of water under the hydropower water rights, will not be adversely affected. Conditions, if any, imposed by the director shall be subject to review under section 42-1701A(4), Idaho Code. (6)(a) Any authorization or order of the Idaho public utilities commission, under the provisions of section 61-328, Idaho Code, approving the sale, assignment or transfer of hydropower water rights used in the generation of electric power shall be issued only upon such conditions as the director of the department of water resources shall require as necessary to prevent any change in use of water under the water rights held for hydropower purposes that would cause injury to any water rights existing on the date of the sale, assignment or transfer. Any such conditions shall ensure that the public interest, as it pertains to the use of water under the hydropower water rights, will not be adversely affected. Conditions, if any, imposed by the director shall be subject to review under section 42-1701A(4), Idaho Code.
2. Subsection (6)(a) of this section may be satisfied by a written agreement between the holder of a water right held for hydropower purposes and the governor, which agreement has been ratified by the legislature of the state of Idaho. The agreement between the governor and the Idaho power company dated October 15, 1984, and ratified by the legislature of the state of Idaho pursuant to section 42-203B, Idaho Code, and the subordination provisions relating to the Idaho power company’s water rights satisfy subsection (6)(a) of this section.

History.

1895, p. 215, § 7; reen. 1899, p. 282, § 6; reen. R.C., § 154; reen. C.L. 126:7; C.S., § 2983; I.C.A.,§ 41-1501; am. 1974, ch. 20, § 4, p. 533; am. 2000, ch. 224, § 3, p. 619; am. 2014, ch. 103, § 1, p. 304.

STATUTORY NOTES

Cross References.

Irrigation districts,§ 43-101 et seq.

Penal provisions of the irrigation laws,§ 18-4301 et seq.

Reclamation of Carey Act lands,§ 42-2002.

Supervision of department of water resources,§ 42-1902.

Supreme Court reports to be distributed to director of department of water resources,§ 1-505.

Water and canal corporations and water users’ association,§ 30-801 et seq.

Water resource board,§ 42-1732.

Water rights and irrigation,§ 42-101 et seq.

Amendments.

The 2014 amendment, by ch. 103, rewrote subsection (2), which formerly read: “The executive and administrative authority of the department, except such authority as is specifically assigned by law to the water resource board, shall be vested in a director of the department of water resources who shall be a licensed civil or hydraulic engineer, and shall have had not less than five (5) years’ experience in the active practice of such profession, and shall be familiar with irrigation in Idaho.”

Effective Dates.

Section 4 of S.L. 2000, ch. 224 declared an emergency. Approved April 12, 2000.

CASE NOTES

Cited

Union Pac. R.R. v. Idaho, 654 F. Supp. 1236 (D. Idaho 1987).

Decisions Under Prior Law

Mandamus.

Mandamus will lie to compel state engineer (department of water resources) to perform ministerial duties. Idaho Power & Transp. Co. v. Stephenson, 16 Idaho 418, 101 P. 821 (1909).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — A Permanent Water Court Proposal for a Post-General Stream Adjudication World, John E. Thorson. 52 Idaho L. Rev. 17 (2016).

§ 42-1701A. Hearings before director — Appeals.

All hearings required by law to be held before the director of the department of water resources shall be conducted in accordance with the provisions of chapter 52, title 67, Idaho Code, and rules of procedure promulgated by the director.
The director, in his discretion, may direct that a hearing be conducted by a hearing officer appointed by the director. In such event, the hearing officer shall have the duty to make a complete record of the evidence presented and duly received at the hearing and to prepare a recommended or preliminary order in accordance with chapter 52, title 67, Idaho Code, and rules of procedure promulgated by the director.
Unless the right to a hearing before the director or the water resource board is otherwise provided by statute, any person aggrieved by any action of the director, including any decision, determination, order or other action, including action upon any application for a permit, license, certificate, approval, registration, or similar form of permission required by law to be issued by the director, who is aggrieved by the action of the director, and who has not previously been afforded an opportunity for a hearing on the matter shall be entitled to a hearing before the director to contest the action. The person shall file with the director, within fifteen (15) days after receipt of written notice of the action issued by the director, or receipt of actual notice, a written petition stating the grounds for contesting the action by the director and requesting a hearing. The director shall give such notice of the petition as is necessary to provide other affected persons an opportunity to participate in the proceeding. The hearing shall be held and conducted in accordance with the provisions of subsections (1) and (2) of this section. Judicial review of any final order of the director issued following the hearing shall be had pursuant to subsection (4) of this section.
Any person who is aggrieved by a final decision or order of the director is entitled to judicial review. The judicial review shall be had in accordance with the provisions and standards set forth in chapter 52, title 67, Idaho Code.

History.

I.C.,§ 42-1701A, as added by 1980, ch. 238, § 1, p. 526; am. 1993, ch. 216, § 36, p. 587; am. 1994, ch. 450, § 2, p. 1434; am. 2003, ch. 138, § 1, p. 402.

STATUTORY NOTES

Compiler’s Notes.

Effective Dates.

Section 6 of S.L. 1994, ch. 450 declared an emergency and provided that this act shall apply to all calls for distribution of water pending at the time of passage and approval. Approved April 11, 1994. CASE NOTES

Appeal.

Where a challenger asserts that the director of the department of water resources has made a clearly erroneous decision, in order to uphold the agency’s decision the court must conclude that the record contains some reliable, probative, and substantial evidence in support of the director’s decision. Dovel v. Dobson, 122 Idaho 59, 831 P.2d 527 (1992).

Due Process.

Where the company was provided with notice of its statutory opportunity to make exceptions and have a hearing before the proposed order became final, and after the order did become final the company was given a hearing on the merits pursuant to their motion to modify the order, there was no lack of procedural due process where the department of water resources considered matters outside the record in drafting a proposed decision granting a water permit. Collins Bros. Corp. v. Dunn, 114 Idaho 600, 759 P.2d 891 (1988).

Exhaustion.

Jurisdiction.

Where plaintiff sought judicial review of a decision of the Idaho department of water resources (IDWR) in the district court of the seventh judicial district, the district court lacked jurisdiction to review the IDWR decision. The district court’s decision was vacated and the case remanded to the Snake River Basin Adjudication district court. Sagewillow, Inc. v. Idaho Dep’t of Water Resources, 135 Idaho 24, 13 P.3d 855 (2000).

Notice.

The fact that the proposed decision and order on the company’s application for a water permit mentioned the posthearing creation of a ground water unit did not taint the opinion, because creation of the unit was a cognizable fact which the department of water resources was entitled to take notice of under§ 67-5210(4) (now 67-5251), and the proposed decision and order provided the company with notice that the existence of the unit was included in the department’s deliberations, and the company made no objection or request for an additional hearing, pursuant to subsection (3) of this section, to meet the new information concerning the unit. Collins Bros. Corp. v. Dunn, 114 Idaho 600, 759 P.2d 891 (1988).

Cited

Shokal v. Dunn, 109 Idaho 330, 707 P.2d 441 (1985); Musser v. Higginson, 125 Idaho 392, 871 P.2d 809 (1994).

§ 42-1701B. Enforcement procedure — Notice — Consent order — Civil action.

Authority to commence actions. The director of the department of water resources is authorized and may commence and pursue enforcement actions to remedy the designated violations set out in title 42, Idaho Code.
Notice. When the director commences an administrative enforcement action the notice of violation shall be served upon the alleged violator in person or by certified mail. The notice of violation shall identify the alleged violation and shall specify each provision of the designated chapter, rule, permit, condition of approval or order which has been violated. The notice of violation shall state the remedy, including any demand to cease and desist, restoration and mitigation measures, and the amount of any civil penalty the director seeks for redress of the violation. Factors the director may consider in seeking the appropriate remedy include the impact of the violation and whether the violation was willful, a repeat violation for which the violator had been given a prior written warning, or the violator has otherwise refused to comply with the department’s lawful directives. The notice of violation shall inform the person to whom it is directed of an opportunity to confer with the director or the director’s designee in a compliance conference concerning the alleged violation.
Response. A written response may be required within fourteen (14) days of the receipt of the notice of violation by the person to whom it is directed. If a recipient of a notice of violation contacts the department within fourteen (14) days of the receipt of the notice, the recipient shall be entitled to a compliance conference. The conference shall be held within twenty-one (21) days of the receipt of the notice unless a later date is agreed upon between the parties. If a compliance conference is not requested, the director may proceed with a civil enforcement action as provided in this section.
Compliance conference and consent order. The compliance conference shall provide an opportunity for the recipient of a notice of violation to explain the circumstance of the alleged violation and, where appropriate, to present a proposal for remedying the damage caused by the violation and assuring future compliance. If the recipient and the director agree on a plan to remedy damage caused by the alleged violation and to assure future compliance, they may enter into a consent order formalizing their agreement. The consent order may include a provision providing for payment of any agreed civil penalty. The consent order shall be effective immediately upon signing by both parties and shall preclude a civil enforcement action for the same alleged violation. If a party does not comply with the terms of the consent order, the director may seek and obtain in any appropriate district court, specific performance of the consent order and other relief as authorized by law. If the parties cannot agree to a consent order within fifty-six (56) days after the receipt of the notice of violation, or if the recipient does not request a compliance conference, the director may commence and prosecute a civil enforcement action in the district court in accordance with this section.
Civil enforcement actions.
1. The director may initiate a civil enforcement action through the attorney general as provided in this section. Civil enforcement actions shall be commenced and prosecuted in the district court in and for the county in which the alleged violation occurred, and may be brought against any person who is alleged to have substantially violated any provision of title 42, Idaho Code, or any rule promulgated pursuant to that title. The action may be brought to compel compliance with provisions of title 42, Idaho Code, or rules promulgated pursuant to that title. The director shall not be required to prosecute an administrative enforcement action before initiating a civil enforcement action.
2. Nothing in this section shall preclude employees of the department designated by the director from issuing Idaho uniform citations or written administrative orders directing persons to cease and desist as authorized by law.
3. If the person who is the subject of the notice of violation fails to cease and desist the activity or activities constituting the alleged violation within the time limits set in the notice of violation, the director may seek, by and through the attorney general, injunctive relief in the district court pending the outcome of the administrative enforcement action.
4. In an action brought against a person for diverting water without having obtained a valid water right to do so, the director need not allege or prove that irreparable injury to the state or to other water users will occur should the preliminary injunction not be issued or that the remedy at law is inadequate, and the preliminary injunction or permanent injunction shall issue without those allegations and without that proof.
Penalties.
1. Any person determined in a judicial civil enforcement action to have substantially violated any designated provision of title 42, Idaho Code, or any rule promulgated pursuant to that title, shall be liable for a civil penalty not to exceed ten thousand dollars ($10,000) per violation or one hundred fifty dollars ($150) per day for a continuing violation, whichever is greater; except that persons determined to be in violation of section 42-351, Idaho Code, shall be liable for a civil penalty not to exceed:
  1. For nonirrigation uses, fifty dollars ($50.00) per one-tenth (0.1) cubic feet per second of water or part thereof diverted per calendar day, or fifty dollars ($50.00) per two tenths (0.2) of an acre foot of water or part thereof diverted to storage, up to a maximum penalty of fifty thousand dollars ($50,000) per year for water illegally used or diverted;
  2. For irrigation uses, three hundred dollars ($300) annually for each acre irrigated, in whole or in part, by the illegal use or diversion.
2. Civil penalties shall not be assessed for violations that have occurred more than twelve (12) months prior to the issuance of the notice of violation. The court shall determine the amount of the penalty based upon the willfulness of the violation, the economic value obtained by the violator and the damage to public resources and other water right holders. A method of recovery of the penalty shall be a civil enforcement action in and for the county where the violation occurred.
3. All civil penalties collected under this section shall be paid into the water right[s] enforcement account established pursuant to section 42-1778, Idaho Code.
4. Parties to an administrative enforcement action may agree to a civil penalty as provided in this subsection.
No action taken pursuant to this section shall relieve any person from any civil liability and damages that may exist for injury or damage resulting to others.
Upon request of the director, it shall be the duty of the attorney general to institute and prosecute civil enforcement actions pursuant to this section.

History.

I.C.,§ 42-1701B, as added by 1998, ch. 173, § 8, p. 595; am. 2003, ch. 165, § 2, p. 467.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Compiler’s Notes.

The bracketed letter “s” in paragraph (6)(c) was inserted by the compiler to correct the name of the referenced account.

§ 42-1702. Duty to supply information.

The director shall, free of charge, give any information desired by any person as to the proper method of measuring water, or of constructing an apparatus for such measurement, upon proper application being made; and shall give special instructions to all watermasters as to measurement of water so as to secure a just distribution of the same.

History.

1895, p. 215, § 12; reen. 1899, p. 282, § 11; reen. R.C., § 157; reen. C.L. 126:8; C.S., § 2984; I.C.A.,§ 41-1502; am. 1974, ch. 20, § 5, p. 533.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 42-1703. Attorney general to advise director.

The director may require, and shall receive, from the attorney general of the state, advice upon any question of public interest arising in the performance of duties under this chapter, which advice shall be in writing when so desired. The director may employ counsel or may retain private counsel.

History.

1895, p. 215, § 13; reen. 1899, p. 282, § 12; reen. R.C., § 158; reen. C.L. 126:9; C.S., § 2985; I.C.A.,§ 41-1503; am. 1974, ch. 20, § 6, p. 533.

§ 42-1704. Director to make report.

The director shall make and render to the governor, annually, or oftener, if required, full and true reports of the work performed by the department, which reports shall contain any recommendations he may have to make in reference to legislation affecting the department.

History.

1895, p. 215, § 14; reen. 1899, p. 282, § 13; reen. R.C., § 159; reen. C.L. 126:10; C.S., § 2986; I.C.A.,§ 41-1504; am. 1974, ch. 20, § 7, p. 533.

§ 42-1705. Cooperation with United States geological survey.

The director of the department of water resources is hereby authorized to cooperate with the United States geological survey in the investigation of the water resources and gauging the flow of the streams of the state of Idaho so long as the federal government is engaged in making such measurements and surveys. To that end he is hereby authorized to make the necessary contract or contracts with the director of the United States geological survey whereby a part of the expenses incurred in the making of such surveys, gaugings and measurements may be paid by the state of Idaho, to an amount not to exceed the appropriation hereinafter made. Said contract or contracts shall provide among other things, that the United States geological survey shall furnish to the department of water resources complete and detailed reports of the results obtained by said survey, gaugings and measurements and copies of such original records, plats, notes and other data as shall be required by the department. Such reports, plats, notes, records and data shall be and become a part of the permanent records of the office of the department. All claims for expenses incurred or made hereunder shall be filed, examined, and when allowed, paid out of the state treasury in the same manner that other claims against the state are made, filed, examined and paid.

History.

1919, ch. 173, § 1, p. 548; C.S., § 2987; I.C.A.,§ 41-1505; am. 1974, ch. 20, § 8, p. 533.

STATUTORY NOTES

Compiler’s Notes.

For more on the United State geological survey, see http://www.usgs.gov .

§ 42-1706. Additional duties of director.

The director of the department of water resources shall make or cause to be made careful measurements of the flow in cubic feet per second of the various streams in the state whose waters are, or are likely to be, appropriated and used, through that part of the season which he may deem necessary or expedient, to afford information for irrigating purposes, commencing with those streams most used for irrigation. The director shall collect facts and make surveys to ascertain suitable locations for reservoirs upon streams where such reservoirs may be possible and beneficial, and shall, as far as possible, determine the cost of constructing such reservoirs, and all other facts possible in regard to quantity of water possible to be stored, the character and extent of land that may be reclaimed by the water from such reservoirs, together with all other information possible that may bear upon the subject. The director shall become familiar with the waterways and irrigable land in the state and the needs of the state as to irrigation matters, and all records of any such information shall be the property of the state and open to public inspection. The director shall keep full and complete records of all measurements of streams, surveys, examinations or other valuable information that may come into his possession concerning any of the duties of the department, and shall furnish reasonable information in regard to such measurements or surveys to the newspapers of the state upon proper request.

In addition to the duties prescribed in this chapter, the director shall perform such other professional duties as may be required of him by the governor, and shall give advice on any matters of a professional nature, when called upon by the governor to do so.

History.

1895, p. 215, § 15; reen. 1899, p. 282, § 14; reen. R.C., § 160; reen. C.L. 126:11; C.S., § 2988; I.C.A.,§ 41-1506; am. 1974, ch. 20, § 9, p. 533.

§ 42-1707, 42-1708. Examination of plans for dams — Inspection of dams. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

These sections, which comprised S.L. 1895, p. 215, §§ 8 to 10; reen. 1899, p. 282, §§ 7 to 9; am. 1901, p. 191, § 5; reen. R.C., §§ 154a, 155; C.L. 126:12, 126:13; C.S., §§ 2989, 2990; I.C.A.,§§ 41-1507, 41-1508; am. 1939, ch. 224, § 1, p. 496, were repealed by S.L. 1969, ch. 280, § 12.

§ 42-1709. Inspection and oversight on complaint or director’s determination.

If any person or persons shall report in writing to the director that any dam, artificial barrier or embankment that stores or impounds water, except for those excluded in section 42-1711(b)(1) through (4), Idaho Code, or mine tailings impoundment structure used for storing tailings slurry is unsafe and endangering life or property, then it shall be the duty of the director to inspect, or cause to be inspected, such dam, artificial barrier or embankment or mine tailings impoundment structure as soon as possible, and, if he considers it unsafe, to proceed as provided in this chapter.
If the director determines that the failure of any artificial barrier or embankment that stores or impounds water, except for those excluded in section 42-1711(b)(1) through (4), Idaho Code, would pose a threat of direct loss of life or significant property damage, the director shall regularly inspect and regulate it as a dam as provided in this chapter.

History.

1895, p. 215, § 11; reen. 1899, p. 282, § 10; reen. R.C., § 156; reen. C.L. 126:14; C.S., § 2991; I.C.A.,§ 41-1509; am. 1974, ch. 20, § 10, p. 533; am. 1978, ch. 309, § 1, p. 785; am. 2016, ch. 206, § 1, p. 578.

STATUTORY NOTES

Amendments.

The 2016 amendment, by ch. 206, rewrote the section heading and the section, which formerly read: “Inspection on complaint. If any person or persons shall report in writing to the director that any dam or embankment, used for holding water, or mine tailings impoundment structure used for storing tailings slurry is unsafe and endangering life or property, then it shall be the duty of the director to inspect, or cause to be inspected, such dam, embankment or mine tailings impoundment structure as soon as possible, and, if he considers it unsafe, to proceed as provided in the following sections.”

§ 42-1710. Intent of legislature — Construction, maintenance and operation of dams and mine tailings impoundment structures.

It is the intent of the legislature by this act to provide for the regulation of construction, maintenance and operation of all dams, reservoirs and mine tailings impoundment structures exclusively by the state to the extent required for the protection of public safety. All dams, reservoirs and mine tailings impoundment structures in the state are under jurisdiction of the department of water resources. The department of water resources, under the police power of the state, shall supervise the construction, enlargement, alteration, repair, maintenance, operation and removal of dams, reservoirs and mine tailings impoundment structures for the protection of life and property. The department of water resources may enter into agreements with other state agencies having jurisdiction over water storage structures to limit duplication of inspection, review and regulation of such structures.

History.

1969, ch. 280, § 1, p. 833; am. 1974, ch. 20, § 11, p. 533; am. 1978, ch. 309, § 2, p. 785; am. 2000, ch. 78, § 1, p. 163.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” in the first sentence refer to S.L. 1969, chapter 280, which is compiled as§§ 42-1710 to 42-1720.

Effective Dates.

Section 3 of S.L. 2000, ch. 78 provided that the act shall be in full force and effect on and after July 1, 2000.

CASE NOTES

Cited

Union Pac. R.R. v. Idaho, 654 F. Supp. 1236 (D. Idaho 1987).

OPINIONS OF ATTORNEY GENERAL

Liability of Board.

The water resources board is not shielded by the immunity provisions of this section or the “discretionary function” exception in§ 6-904 of the Tort Claims Act, if it exempts the Mud Lake embankment from the dam safety program; the board has no authority to contract away its statutory duty.OAG 88-2.

§ 42-1711. Definitions.

Unless the context otherwise requires, the following definitions govern the construction of this chapter.

“Department” means the department of water resources.
“Dam” means any artificial barrier or embankment, together with appurtenant works, constructed for the purpose of storing water or that stores water, which is ten (10) feet or more in height from the natural bed of the stream or watercourse at the downstream toe of the barrier, as determined by the department, or from the lowest elevation of the outside limit of the barrier, if it is not across a stream channel or watercourse, to the maximum water storage elevation, and has or will have an impounding capacity at maximum water storage elevation of fifty (50) acre-feet or more. The following are not included as regulated dams or are not considered dams for the purposes of sections 42-1710 through 42-1721, Idaho Code:
1. Barriers in a canal used to raise or lower water therein or divert water therefrom.
2. Fills or structures determined by the director to be designed primarily for highway or railroad traffic.
3. Fills, retaining dikes or structures less than twenty (20) feet in height, which are under jurisdiction of the department of environmental quality or the department of agriculture, determined by the director of the department of water resources to be designed primarily for retention or treatment of municipal, livestock, or domestic wastes, or sediment and wastes from produce washing or food processing plants.
4. Levees that store water regardless of storage capacity.
“Levee” means a retaining structure alongside a natural lake which has a length that is two hundred (200) times or more greater than its greatest height measured from the lowest elevation of the toe to the maximum crest elevation of the retaining structure.
“Reservoir” means any basin which contains or will contain the water impounded by a dam.
“Owner” includes any of the following who own, control, operate, maintain, manage, or propose to construct a dam, reservoir or mine tailings impoundment structure:
1. The state of Idaho and its departments, agencies, institutions and political subdivisions;
2. The United States of America and any of its departments, bureaus, agencies and institutions; provided that the United States of America shall not be required to pay any of the fees required by section 42-1713, Idaho Code, and shall submit plans, drawings and specifications as required by section 42-1712, Idaho Code, for information purposes only;
3. Every municipal or quasi-municipal corporation;
4. Every public utility;
5. Every person, firm, association, organization, partnership, business trust, corporation or company;
6. The duly authorized agents, lessees, or trustees of any of the foregoing; or
7. Receivers or trustees appointed by any court for any of the foregoing.
“Alterations,” “repairs,” or either of them, mean only such alterations or repairs as may directly affect the safety of the dam, reservoir or mine tailings impoundment structure, as determined by the department.
“Enlargement” means any change in or addition to an existing dam, reservoir or mine tailings impoundment structure, which raises or may raise the water storage elevation of the water impounded by the dam or mine tailings slurry impounded by the mine tailings impoundment structure.
“Maximum water storage elevation” means the maximum design elevation of water surface which can be impounded by the dam or reservoir.
“Storage capacity” means the total volume of storage at the maximum water storage elevation.
“Days” used in establishing deadlines means calendar days including Sundays and holidays.
“Certificate of approval” means a certificate issued by the director for all dams or mine tailings impoundment structures listing restrictions imposed by the director, and without which no new dams shall be allowed to impound water or mine tailings impoundment structures shall be allowed to impound mine tailings slurry.
“Mine tailings impoundment structure” means any artificial embankment which is or will be more than thirty (30) feet in height measured from the lowest elevation of the toe to the maximum crest elevation constructed for the purpose of storing mine tailings slurry.
“Lift construction” means mine tailings impoundment structure enlargement by raising the elevation of the structure on a continuous or recurring basis. Such practice will be considered under construction until the structure reaches its final crest elevation.
“Mine tailings impoundment elevation” means the maximum elevation of stored mine tailings which can be obtained by the impounding structure.
“Mine tailings slurry” means all slurry wastes from a mineral processing or mining operation.
“Mine tailings storage capacity” means the total storage volume of the impounding area when filled with tailings to the maximum designed storage elevation.
“Hazard” means the potential consequences to downstream life and property resulting from a dam failure and uncontrolled release of water, exclusive of the size or the physical condition of the dam or mine tailings impoundment structure. Hazard classifications shall be assigned to new and existing dams or mine tailings impoundment structures based on the severity of failure consequences to life and property.
“Professional engineer” means a person who has been duly licensed as a professional engineer by the Idaho board of licensure of professional engineers and professional land surveyors under chapter 12, title 54, Idaho Code.
“Artificial barrier or embankment” means any structure constructed to impede or obstruct the flow of water.

History.

1969, ch. 280, § 2, p. 833; am. 1970, ch. 73, § 1, p. 187; am. 1974, ch. 20, § 12, p. 533; am. 1978, ch. 309, § 3, p. 785; am. 1987, ch. 98, § 1, p. 192; am. 1988, ch. 308, § 1, p. 963; am. 2000, ch. 78, § 2, p. 163; am. 2001, ch. 103, § 81, p. 253; am. 2004, ch. 180, § 1, p. 563; am. 2016, ch. 206, § 2, p. 578.

STATUTORY NOTES

Amendments.

The 2016 amendment, by ch. 206, in subsection (b), in the introductory paragraph, inserted “or embankment” near the beginning and deleted the proviso at the end and deleted former paragraphs (a) and (b), which read: “provided however, barriers defined in paragraphs (1) and (2), below, shall remain under the exclusive jurisdiction of the department: (1) Barriers constructed in low risk areas as determined by the director, which are six (6) feet or less in height, regardless of storage capacity. (2) Barriers constructed in low risk areas as determined by the director, which impound ten (10) acre-feet or less at maximum water storage elevation, regardless of height” and redesignated the subsequent paragraphs accordingly; in subsection (h), substituted “Maximum water storage” for “Water storage” inserted “design”, and substituted “impounded” for “obtained”; in subsection (j), inserted “volume of” and “water”; and added paragraphs (q) through (s).

Effective Dates.

Section 3 of S.L. 2000, ch. 78 provided that the act shall be in full force and effect on and after July 1, 2000.

Section 3 of S.L. 2004, ch. 180 declared an emergency. Approved March 23, 2004.

CASE NOTES

Cited

Marty v. State, 117 Idaho 133, 786 P.2d 524 (1989); Stott ex rel. Dougall v. Finney, 130 Idaho 894, 950 P.2d 709 (1997).

OPINIONS OF ATTORNEY GENERAL

Authority to Regulate.

The embankment surrounding the southern edge of Mud Lake is a dam as defined in this section because the embankment is an artificial embankment storing in excess of 50 acre feet of water; the board and department have the authority and duty to regulate it under this chapter.OAG 88-2.

The board does not have authority to adopt regulations that are inconsistent with the statutory definition of a dam contained in subsection (b); therefore, if the board adopted regulations that exempted the embankment surrounding Mud Lake from the definition of a dam, the board’s action would be in violation of its strict statutory duty.OAG 88-2.

Liability.

None of the exemptions enumerated in this section is intended to absolve the water resources board from liability in the event that the board affirmatively announced its intention to exempt particular dams from regulation.OAG 88-2.

The water resources board is not shielded by the immunity provisions of this section or the “discretionary function” exception in§ 6-904 of the tort claims act, if it exempts the Mud Lake embankment from the dam safety program; the board has no authority to contract away its statutory duty.OAG 88-2.

§ 42-1712. Construction, enlargement, alteration or repair of dams — Submission of duplicate plans, drawings and specifications.

Owners who shall desire to construct, or enlarge, or alter or repair, meaning only such alterations or repairs as may affect the safety of the dam or reservoir, any dam, for the purpose of storing or appropriating or diverting any of the waters of this state, when the same is to be ten (10) feet or more in height and having a storage capacity of fifty (50) acre-feet or more, except as otherwise in this chapter provided, shall submit duplicate plans, drawings and specifications of the proposed work to the director, and construction of a new dam or enlargement, or alteration or repairs shall not be commenced until the owner has applied for and obtained written approval of the plans, drawings and specifications.

Owners of dams under construction on the effective date of this legislation and for which plans, drawings and specifications are required but have not been approved on or before the effective date of this legislation shall submit such plans, drawings and specifications for approval, with the fee established hereinafter. The director shall give notice to owners to submit plans, drawings and specifications, and failure to submit plans, drawings and specifications for approval within thirty (30) days of the date of mailing the notice shall be punishable as provided in this act, and construction shall be stopped upon issuance of an order by the director unless for good cause shown as determined by the director further time is allowed. The notice and/or order provided for in this paragraph may be given by certified mail and a return receipt signed by the owner or responsible company shall constitute prima facie evidence of service.

Upon receipt of the plans, drawings and specifications, the director shall give consideration thereto and shall approve or disapprove the same within the time provided in this section, and if he approves them, the director shall affix his approval thereto and return one (1) copy of each such plans, drawings and specifications, with his approval, to the party or parties proposing to construct the works.

Plans, drawings and specifications submitted to the director complete with fees shall be approved or disapproved in no more than sixty (60) days and in no less than fourteen (14) days after receipt. Defective plans, drawings and specifications made in a bona fide attempt to conform to the law and rules of the water resource board shall not be rejected but notice of defect shall be sent to the owner by certified mail. If within thirty (30) days of the date of mailing the notice the owner does not file amended and perfected plans, drawings and specifications, the plans, drawings and specifications shall be rejected and canceled unless for good cause shown the director allows the owner further time.

The construction of all dams under plans, drawings and specifications approved by the director shall be pursued with reasonable diligence to completion. In the event that an owner fails to commence actual construction and maintain reasonable construction progress of the dam under the plans, drawings and specifications approved by the director prior to or after the effective date of this act, such approval may be voided by the director one (1) year after such approval. Notice of the intent to void any such approval shall be sent by the director to the owner by certified mail and said owner shall be allowed thirty (30) days within which to show cause why such approval should not be voided. The director may grant additional time within which to commence the construction under plans, drawings and specifications approved by the director upon a showing of reasonable cause. Plans, drawings and specifications for which approval has become void must be resubmitted for approval, with the fee therefor as hereafter provided, prior to commencing construction of any such dam. The plans, drawings and specifications shall include the following information:

The name and address of the owner.
The location, type, size and height of the proposed dam or reservoir and appurtenant works.
The storage capacity of the reservoir.
Such other pertinent information as the director may require including the following:
1. Data concerning subsoil and foundation conditions and materials entering into construction of the dam or reservoir.
2. Investigations of, and reports on subsurface conditions involving such matters as exploratory pits, trenches, and adits, drilling, coring, geophysical surveys, tests to determine leakage rates, and physical tests to measure in place the properties and behavior of foundation materials at the dam or reservoir site.
3. Investigation of and reports on the geology of the dam or reservoir site and its vicinity, possible geological hazards, availability and quality of construction materials, and other pertinent factors.

The plans, drawings and specifications shall be of such character and size setting forth such pertinent details and dimensions and in such form as the director requires. Plans, drawings and specifications which are submitted to the department shall be prepared by or under the direction of a professional engineer and authenticated by him as provided in section 54-1215, Idaho Code.

Where said dam is, in the opinion of the director, not of sufficient importance to have the provisions of the section apply to such dam, then the director shall have power, upon written application, to suspend the provisions of this section in regard to such dam.

The director shall prepare design and construction criteria for artificial barriers or embankments that store water, that are not dams as defined in this chapter, and shall supply such criteria upon request to any interested person to aid in constructing such artificial barriers or embankments. The use of such criteria shall in no way relieve the owner of responsibility for adequacy of design and construction procedures, nor be the basis of liability for any city or county that grants a permit related to construction of the artificial barrier or embankment pursuant to the provisions of chapter 65, title 67, Idaho Code.

History.

1969, ch. 280, § 3, p. 833; am. 1974, ch. 20, § 13, p. 533; am. 2004, ch. 180, § 2, p. 563; am. 2016, ch. 206, § 3, p. 578.

STATUTORY NOTES

Cross References.

Amendments.

The 2016 amendment, by ch. 206, in the first paragraph, substituted “ten (10) feet or more in height and having a storage capacity of fifty (50) acre-feet” for “more than twenty (20) feet or more in height or have a storage capacity of one hundred fifty (150) acre-feet”; in the last sentence of the seventh paragraph, substituted “professional engineer and authenticated by him as provided in section 54-1215, Idaho Code” for “registered professional engineer who is registered pursuant to Idaho law and authenticated by him as provided in section 54-1215, Idaho Code, or by such other person as provided in section 54-1223, Idaho Code”; and rewrote the last paragraph, which formerly read: “The director shall prepare design and construction criteria for dams and barriers not requiring departmental approval of plans, drawings and specifications and shall supply such criteria upon request to any interested person to aid in constructing such dams and barriers. The use of such criteria shall in no way relieve the owner of responsibility for adequacy of design and construction procedures, nor be the basis of liability for any city or county that grants a permit related to construction of the dam or barrier pursuant to the provisions of chapter 65, title 67, Idaho Code.”

Compiler’s Notes.

The phrases “the effective date of this legislation” in the second paragraph and “the effective date of this act” in the fifth paragraph refer to the effective date of S.L. 1969, chapter 280, which was effective May 26, 1969.

The term “this act” in the second sentence in the second paragraph refers to S.L. 1969, chapter 280, which is codified as§§ 42-1710 to 42-1720.

Effective Dates.

Section 3 of S.L. 2004, ch. 180 declared an emergency. Approved March 23, 2004.

§ 42-1713. Fees.

Fees provided for in this chapter shall be required of all enumerated in the definition of owner. Fees for an enlargement to an existing dam or mine tailings impoundment structure shall be based upon the increase in storage capacity or tailings storage capacity. Fees for alterations or repairs of an existing dam or mine tailings impoundment structure shall be based on an estimate, made by the director, of costs of inspections to be made, however, in no case shall such fees exceed that which would be required by the fee schedule for construction of the dam or mine tailings impoundment structure.

The fee for construction of a dam or mine tailings impoundment structure, or for enlarging an existing dam or mine tailings impoundment structure, shall be two hundred dollars ($200) plus the following amount:

For one thousand (1,000) acre-feet capacity or less, ten dollars ($10.00) for each ten (10) acre-feet or part thereof.
For over one thousand (1,000) acre-feet capacity but not exceeding ten thousand (10,000) acre-feet capacity, one thousand dollars ($1,000) plus one dollar ($1.00) for each ten (10) acre-feet or part thereof over the first one thousand (1,000) acre-feet capacity.
For storage in excess of ten thousand (10,000) acre-feet, one thousand nine hundred dollars ($1,900) plus twenty cents (20¢) for each ten (10) acre-feet or part thereof over the first ten thousand (10,000) acre-feet capacity. In no case, however, shall the fee be more than six thousand dollars ($6,000).

All plans, drawings and specifications shall not be considered by the department until the filing fee is received. All moneys received by the department under the provisions of this chapter shall be deposited in the water administration fund [account] created under section 42-238a, Idaho Code, and shall be available to the department in carrying out the provisions of this chapter. Fees submitted shall not be refunded.

History.

1969, ch. 280, § 4, p. 833; am. 1970, ch. 73, § 2, p. 187; am. 1974, ch. 20, § 14, p. 533; am. 1978, ch. 309, § 4, p. 785; am. 1980, ch. 195, § 1, p. 431; am. 2004, ch. 169, § 1, p. 548.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion in the last paragraph was added by the compiler to correct the name of the referenced account.

§ 42-1714. Rules.

The water resource board shall adopt and revise from time to time such rules as may be necessary for carrying out the provisions of sections 42-1710 through 42-1721, Idaho Code. The rules governing mine tailings and impoundment structures shall require the owner to provide an abandonment plan to assure that the site will be in a safe maintenance-free condition upon completion of the mining operation. The rules shall also require the owner to provide to the director a bond or other acceptable surety adequate to complete the abandonment plan if the owner abandons the site without conforming to the plan. The amount of the bond shall be determined by the director and shall be established to avoid duplication with sureties deposited with other governmental agencies. In lieu of any surety required hereunder, the owner may deposit cash and governmental securities with the director in an amount equal to that of the required surety on conditions as prescribed in the rules.

History.

1969, ch. 280, § 5, p. 833; am. 1974, ch. 20, § 15, p. 533; am. 1978, ch. 309, § 5, p. 785; am. 2000, ch. 298, § 1, p. 1029.

STATUTORY NOTES

Cross References.

Water resource board,§ 42-1732.

OPINIONS OF ATTORNEY GENERAL

Rulemaking.

The board does not have authority to adopt regulations that are inconsistent with the statutory definition of a dam contained in§ 42-1711(b); therefore, if the board adopted regulations that exempted the embankment surrounding Mud Lake from the definition of a dam, the board’s action would be in violation of its strict statutory duty.OAG 88-2.

§ 42-1715. Inspection during construction, enlargement, alteration, repair or removal of dams and mine tailings impoundment structures — Effect of noncompliance.

During the construction, enlargement, repair, alteration, or removal of any dam, reservoir or mine tailings impoundment structure, the director shall make or cause to have made continuous or periodical inspections at state expense for the purpose of securing conformity with the approved plans and specifications, but shall require the owner to perform at his expense such work or tests as necessary to disclose information sufficient to enable him to determine that conformity with the approved plans and specifications is being secured, which shall include adequate inspection, at owner’s expense to verify compliance with approved plans, drawings and specifications.

The work of construction, enlargement, repair, alteration or removal of a dam, reservoir or mine tailings impoundment structure, for which approved plans, drawings and specifications are required, shall be under the responsible charge of a professional engineer who shall certify that such construction, enlargement, repair, alteration or removal was done in accordance with approved plans, drawings and specifications. If, after any inspections, investigations or examinations, or at any time as the work progresses, or at any time prior to issuance of a certificate of approval, it is found by the director that amendments, modifications or changes are necessary to insure safety, the director may order the owner to revise the plans and specifications. If conditions are revealed which will not permit the construction of a safe dam, reservoir or mine tailings impoundment structure, the approval may be revoked. In the event that conditions imposed may be waived or made less burdensome without sacrificing a proper margin of safety, the director may authorize an owner to revise the plans and specifications accordingly. If at any time during construction, enlargement, repair or alterations [alteration] of any dam, reservoir or mine tailings impoundment structure the director finds that the work is not being done in accordance with the provision of the approval and the approved plans and specifications, he shall give a written notice and order by certified mail or by personal service to the owner. The notice and order shall state the particulars in which the approval and approved plans and specifications or the approval and approved plans and specifications as revised are not being or have not been complied with and shall order the immediate compliance with the approval and approved revised plans and specifications as the case may be. The director may order that no further work be done until such compliance has been effected and approved by him. A failure to comply with the approval and approved plans and specifications as originally approved or as revised shall render the approval subject to revocation by the director, if compliance is not made in accordance therewith after notice and order from him as provided in this chapter.

History.

1969, ch. 280, § 6, p. 833; am. 1974, ch. 20, § 16, p. 533; am. 1978, ch. 309, § 6, p. 785; am. 2016, ch. 206, § 4, p. 578.

STATUTORY NOTES

Amendments.

The 2016 amendment, by ch. 206, substituted “professional engineer” for “registered professional engineer who is registered according to Idaho law or by such other person as provided in section 54-1223, Idaho Code, and” in the first sentence of the second paragraph.

Compiler’s Notes.

The bracketed word “alteration” in the fifth sentence of the second paragraph was inserted by the compiler to correct the enacting legislation.

§ 42-1716. Notice of completion — Filing of supplementary drawings or descriptive matter.

Immediately upon completion of a new dam, reservoir or mine tailings impoundment structure or enlargement or repair of a dam, reservoir or mine tailings impoundment structure the owner shall give notice of completion to the director, and as soon thereafter as possible file with the director supplementary drawings or descriptive matter showing or describing the dam, reservoir or mine tailings impoundment structure as actually constructed, including the following:

A record of all grout holes and grouting.
A record of permanent location points and bench marks.
A record of tests of concrete or other material used in the construction of the dam, reservoir or mine tailings impoundment structure.
Any other items which may be of permanent value and have a bearing on the safety and performances of the dam, reservoir or mine tailings impoundment structure.

In connection with the enlargement or repair of a dam, reservoir or mine tailings impoundment structure, the supplementary drawings and descriptive matter need apply only to the new work.

History.

1969, ch. 280, § 7, p. 833; am. 1974, ch. 20, § 17, p. 533; am. 1978, ch. 309, § 7, p. 785.

§ 42-1717. Jurisdiction over supervision of maintenance, operation and inspection of dams and mine tailings impoundment structures.

Supervision over the maintenance and operation of dams, reservoirs and mine tailings impoundment structures insofar as necessary to safeguard life and property from injury by reason of the failure thereof is vested in the director of the department of water resources. The director shall at state expense inspect or cause to be inspected, as often as he thinks advisable, every dam used for holding water and mine tailings impoundment structure used for holding tailings slurry in this state; however, all dams or mine tailings impoundment structures regulated by the department shall be inspected at least once every five (5) years, and if after any such inspection such dam or mine tailings impoundment structure, in the opinion of the director, is unsafe, and life or property liable to be endangered by reason thereof, the director shall give written notice and order by certified mail or by personal service upon the owner or owners to remove or repair the same so as to make it safe. If such owner or owners shall neglect or refuse to remove or repair the same after notice to that effect has been given in writing by the director, the director may draw off all or part of such water from behind such dam, embankment or mine tailings slurry from behind mine tailings impoundment structure and keep said water or mine tailings slurry drawn off until such time as the orders shall be complied with. In determining whether or not a dam, reservoir or mine tailings impoundment structure or proposed dam, reservoir or mine tailings impoundment structure constitutes or would constitute a danger to life or property, the director shall take into consideration the possibility that the dam, reservoir or mine tailings impoundment structure might be endangered by overtopping, seepage, settlement, erosion, cracking, earth movement or other conditions which exist or might occur in any area in the vicinity of the dam, reservoir or mine tailings impoundment structure.

No action shall be brought against the state, the water resource board, the director, or the department of water resources or their respective agents or employees for the recovery of damages caused by the partial or total failure of any dam, reservoir or mine tailings impoundment structure or through the operation of any dam, reservoir or mine tailings impoundment structure upon the ground that such defendant is liable by virtue of any of the following:

The approval of the dam, reservoir or mine tailings impoundment structure.
The issuance or enforcement of orders relative to maintenance or operation of the dam, reservoir or mine tailings impoundment structure.
Control and regulation of the dam, reservoir or mine tailings impoundment structure.
Measures taken to protect against failure during an emergency.
The use of design and construction criteria prepared by the department.
The failure to issue or enforce orders, to control or regulate dams, or to take measures to protect against dam failure.

No action shall be brought by the state against the owner for pollution which may occur in the event that the director orders emergency dumping or bypassing.

Nothing in this part shall be construed to relieve an owner or operator of a dam, reservoir or mine tailings impoundment structure of the legal duties, obligations or liabilities incident to the ownership or operation of the dam, reservoir or mine tailings impoundment structure.

The findings and orders of the director and the certificate of approval of any dam, reservoir or mine tailings impoundment structure issued by the director are final and conclusive and binding upon all state agencies, regulatory or otherwise, as to the safety of design, construction, maintenance and operation of any dam, reservoir or mine tailings impoundment structure.

The director may require owners to keep records of, and to report on, maintenance, operation, staffing and engineering and geologic investigations, and the water resource board shall issue such rules as necessary to secure maintenance and operation and to require staffing and engineering and geologic investigations which will safeguard life and property. In addition, the owner of a dam, reservoir or mine tailings impoundment structure or his agent shall fully and promptly advise the department of any sudden or unprecedented flood or unusual or alarming circumstance or occurrence affecting the safety of the dam, reservoir or mine tailings impoundment structure. The director, from time to time, shall make inspections of dams, reservoirs and mine tailings impoundment structures at state expense for the purpose of determining their safety, but shall require owners to perform at their expense such work as necessary to disclose information sufficient to enable the director to determine conditions of dams, reservoirs, and mine tailings impoundment structures in regard to their safety and to perform at their expense other work necessary to secure maintenance and operation which will safeguard life and property.

History.

1969, ch. 280, § 8, p. 833; am. 1974, ch. 20, § 18, p. 533; am. 1978, ch. 309, § 8, p. 785; am. 1987, ch. 225, § 1, p. 477; am. 2004, ch. 168, § 1, p. 546.

STATUTORY NOTES

Cross References.

Water resource board,§ 42-1732.

CASE NOTES

Existing and New Dams Distinguished.

Immunity.

This section does not require existing dams to comply with the rules for new dams. It requires inspection of dams by the director of Idaho department of water resources or at his direction, and specifies that if the director concludes that a dam is unsafe, the director may order the dam removed or repaired. If the owner of the dam does not remove or repair it, the director may draw off the water from behind the dam. Marty v. State, 117 Idaho 133, 786 P.2d 524 (1989). Immunity.

This section appears to grant absolute immunity to the state, the director of the department, and the department itself for any claim for damages arising out of the supervision, maintenance, operation and inspection of dams and reservoirs. Union Pac. R.R. v. Idaho, 654 F. Supp. 1236 (D. Idaho 1987), amended, 663 F. Supp. 75 (D. Idaho 1987).

In a suit brought by owners of flooded farmland, the state was immune from liability for any decision of the director of the department of water resources in taking measures to protect against failure of a dike; this immunity extended to the flood control district and the chairman, and also to the water district and its watermaster and chairman since there was no evidence they owned, controlled, operated or maintained or managed the dike. Marty v. State, 117 Idaho 133, 786 P.2d 524 (1989).

By the terms of this section the state and the Idaho department of water resources and their agents or employees are given immunity from damages caused through measures taken to control and regulate a dam or to protect against failure of any dam during an emergency. Marty v. State, 117 Idaho 133, 786 P.2d 524 (1989).

OPINIONS OF ATTORNEY GENERAL

Liability.

§ 42-1718. Remedial means for protection of life and property.

The director shall immediately employ any remedial means necessary to protect life and property if either:

The condition of any dam, reservoir or mine tailings impoundment structure is so dangerous to the safety of life or property as not to permit time for the issuance and enforcement of an order relative to maintenance or operation.
Passing or imminent floods threaten the safety of any dam, reservoir or mine tailings impoundment structure.
Take such other steps as may be essential to safeguard life and property.

In applying the remedial means provided for in this act, the department may in emergency do any of the following:

(a) Lower the water level by releasing water from the reservoir or lower mine tailings slurry level by releasing slurry from the mine tailings impoundment structure.

(b) Completely empty the reservoir.

The director shall continue in full charge and control of such dam or reservoir, or both, or mine tailings impoundment structure, or all, and its appurtenances, until they are rendered safe or the emergency occasioning the action has ceased.

If the cost of the emergency remedial action by the director for the protection of life and property exceeds the amount of money appropriated from the general fund specifically for that purpose, the additional costs may be defrayed by the issuance of deficiency warrants as may be authorized by the board of examiners. When so authorized, the state controller shall draw deficiency warrants against the general fund.

The cost and expenses of the remedial means provided in this act, including cost of any work done to render a dam, reservoir or mine tailings impoundment structure or its appurtenances safe, shall be recoverable by the state from the owner. If not paid within sixty (60) days of invoice, action may be brought by the director in the district court of the district wherein the dam, reservoir or mine tailings impoundment structure or any part thereof is situated. The funds recovered shall be returned to the general fund to offset the amount of the deficiency warrant.

No action shall be brought by the state against the owner for pollution which may occur in the event that the director orders emergency dumping or bypassing.

History.

1969, ch. 280, § 9, p. 833; am. 1974, ch. 20, § 19, p. 533; am. 1978, ch. 309, § 9, p. 785; am. 1995, ch. 283, § 1, p. 944; am. 2003, ch. 32, § 23, p. 93.

STATUTORY NOTES

Cross References.

General fund,§ 67-1205.

State board of examiners,§ 67-2001 et seq.

Compiler’s Notes.

The words “this act” in the second and fifth undesignated paragraphs refer to S.L. 1969, chapter 280, which is compiled as§§ 42-1710 to 42-1720.

§ 42-1719. Issuance of certificates of approval — Revocation — Appeal.

A certificate of approval shall be issued for all dams and mine tailings impoundment structures, new or existing, upon a finding that the dam or reservoir is safe to impound water or the mine tailings impoundment structure is safe to impound mine tailings slurry within the limitations prescribed in the certificate. Upon written request by an owner for a certificate of approval, the director shall within fourteen (14) days inspect or cause to be inspected and issue a certificate if he finds that the dam, reservoir or mine tailings impoundment structure is safe to impound water or tailings slurry within the limitations prescribed in the certificate. Pending the issuance of a certificate of approval, the owner of a new dam, reservoir or mine tailings impoundment structure shall not, through action or inaction, cause the dam or reservoir to impound water or mine tailings impoundment structure to impound mine tailings slurry.

Each certificate of approval issued may contain such terms and conditions as the director may prescribe. The director may revoke any certificate of approval whenever he determines that the dam, reservoir or mine tailings impoundment structure constitutes a danger to life and property. Whenever he deems such action necessary to safeguard life and property, the director may also amend the terms and conditions of any such certificate by issuing a new certificate containing the revised terms and conditions. The owner of a dam, reservoir or mine tailings impoundment structure for which a certificate of approval has been issued shall not, through action or inaction, cause the dam or reservoir to impound water or mine tailings impoundment structure to impound mine tailings slurry after the certificate terminates unless a new certificate is issued for the dam, reservoir or mine tailings impoundment structure. Those inflows that cannot be diverted may still be allowed to enter the structure, but the lowest possible level must be maintained until safety of the structure is assured. A new certificate shall be issued upon a finding by the director that the dam or reservoir is safe to impound water or mine tailings impoundment structure is safe to impound tailings slurry within the limits prescribed in the certificate.

No action shall be brought by the state against the owner for pollution which may occur in the event that the director orders emergency dumping or bypassing.

With respect to written consent for use of a dam which has been issued and which is in effect prior to the effective date of this act or mine tailings impoundment structure which has been issued and which is in effect prior to the effective date of amendment, the director shall issue a new certificate of approval, which shall supersede the previous written consent for use, or shall contain such terms and conditions as the director may prescribe or shall revoke the existing written consent for use if he finds that the dam or reservoir is not safe to impound water or that the mine tailings impoundment structure is not safe to impound mine tailings slurry.

History.

Before any certificate of approval is revoked, the director shall hold a hearing. Written notice of the time and place of the hearing shall be mailed, at least twenty (20) days prior to the date set for the hearing, to the holder of the certificate. Any interested persons may appear at the hearing and present their views and objections to the proposed action. The hearing shall be conducted in accordance with section 42-1701A(1) and (2), Idaho Code. Any party aggrieved by the final order of the director may seek judicial review thereof pursuant to section 42-1701A(4), Idaho Code. History.

1969, ch. 280, § 10, p. 833; am. 1974, ch. 20, § 20, p. 533; am. 1978, ch. 309, § 10, p. 785; am. 1980, ch. 238, § 15, p. 526.

STATUTORY NOTES

Compiler’s Notes.

The phrase “the effective date of this act” near the beginning of the fourth paragraph refers to the effective date of S.L. 1969, chapter 280, which was effective May 26, 1969.

The phrase “the effective date of amendment” near the middle of the fourth paragraph refers to the effective date of S.L. 1978, chapter 309, which was effective July 1, 1978.

§ 42-1720. Violations of chapter — Penalties.

Every person who violates any of the provisions of this chapter, or of any order of the director or of any rule of the water resource board where a copy of the order or rule has been served upon said person by certified mail as herein provided, and said person fails to comply therewith within the time herein provided, or within ten (10) days of such service if not otherwise provided, shall be guilty of a misdemeanor. In the event of a continuing violation, each day that the violation continues constitutes a separate and distinct offense.
Any person who willfully obstructs, hinders, or prevents the director, the department or its agents or employees from performing the duties imposed by this chapter or who willfully resists the exercise of the control and supervision conferred by this chapter upon the director, the department or its agents or employees is guilty of a misdemeanor.
Any owner or any person acting as a director, officer, agent or employee of an owner, or any contractor or agent or employee of a contractor who engages in the construction, enlargement, repair, alteration, maintenance or removal of any dam, reservoir or mine tailings impoundment structure, who knowingly does work or permits work to be executed on the dam, reservoir or mine tailings impoundment structure without an approval or in violation of or contrary to any approval as provided for in this chapter, or any inspector, agent or employee of the department who has knowledge of such work being done and who fails to immediately notify the director thereof, is guilty of a misdemeanor.
Whenever any party or parties feel themselves aggrieved by the determination of the director in refusing to approve any plan or specification as mentioned in this chapter, or by any order of the director, such party or parties may seek a hearing before the director in accordance with section 42-1701A(3), Idaho Code, if a hearing has not already been held, and may seek judicial review in accordance with section 42-1701A(4), Idaho Code, of any final order of the director issued following a hearing.
When the director of the department of water resources determines that any person is in substantial violation of any provision of this chapter or any rule, certificate, condition of approval or order issued or promulgated pursuant to this chapter, the director may commence an administrative enforcement action by issuing a written notice of violation in accordance with the provisions of section 42-1701B, Idaho Code.

History.

1969, ch. 280, § 11, p. 833; am. 1974, ch. 20, § 21, p. 533; am. 1978, ch. 309, § 11, p. 785; am. 1980, ch. 238, § 16, p. 526; am. 1998, ch. 173, § 9, p. 595.

STATUTORY NOTES

Cross References.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

§ 42-1721. Initial construction, lift construction, enlargement, or alteration of tailings impoundment structures — Submission of duplicate plans, drawings and specifications.

Owners who shall desire to construct, or enlarge, or alter or repair, meaning only such alterations or repairs as may affect the safety of the structure, any mine tailings impoundment structure for the purpose of storing mine tailings slurry when the same is to be more than thirty (30) feet in height shall submit duplicate plans, drawings and specifications of the proposed work to the director, and construction of the new mine tailings impoundment structure, alteration or repair shall not be commenced until the owner has applied for and obtained written approval of the plans, drawings and specifications.

Owners of mine tailings impoundment structures upon which construction, lift construction, enlargement or alteration is under way on July 1, 1978, and for which plans, drawings and specifications would be required if such work had commenced subsequent to July 1, 1978, shall submit plans, drawings and specifications with respect to that portion of the work to be performed subsequent to July 1, 1978, as are required, together with the fee established hereinafter. In the event that the owner fails to submit such plans, drawings and specifications contemplated by this paragraph within sixty (60) days, the director shall give notice to owners to submit plans, drawings and specifications, and failure to submit plans, drawings and specifications within thirty (30) days of the date of mailing the notice shall be punishable as provided in this chapter. Construction, lift construction, enlargement, or alteration which is under way on July 1, 1978 may be stopped upon issuance of an order by the director for good cause shown, as determined by the director. The notice and/or order provided for in this paragraph shall state the good cause for stoppage determined by the director and shall be given by personal service or certified mail and a return receipt signed by the owner or responsible company shall constitute prima facie evidence of service.

Upon receipt of the plans, drawings and specifications, the director shall give consideration thereto and shall approve or disapprove the same within the time provided in this section, and if approved, the director shall affix his approval thereto and return one (1) copy of such plans, drawings and specifications, with his approval, to the party or parties proposing to construct the works.

Plans, drawings and specifications submitted to the director complete with fees shall be approved or disapproved in no more than sixty (60) days and in no less than fourteen (14) days after receipt. Defective plans, drawings and specifications made in a bona fide attempt to conform to the law and rules and regulations of the water resource board shall not be rejected but notice of defect stating in detail the defect or defects found in the plans, drawings or specifications shall be sent to the owner by certified mail. If within thirty (30) days of the date of mailing the notice the owner does not file amended plans, drawings and specifications, the plans, drawings and specifications shall be rejected and cancelled unless, for good cause shown, the director allows the owner further time.

The construction of all mine tailings impoundment structures under plans, drawings and specifications approved by the director shall be pursued with reasonable diligence to completion, taking into consideration the nature of and purpose for which said construction, lift construction, enlargement or alteration is made. The plans, drawings and specifications shall include the following information:

The name and address of the owner.
The location, type, size and height of the proposed mine tailings impoundment structure and appurtenant works.
The storage capacity of the impoundment area.
Such other pertinent information as the director may require consistent with good engineering practice including the following:
1. Data concerning subsoil and foundation conditions and materials entering into construction of the mine tailings impoundment structure.
2. Investigations of, and reports on subsurface conditions involving such matters as exploratory pits, trenches, and adits, drilling, coring, geophysical surveys, tests to determine leakage rates, and physical tests to measure in place the property and behavior of foundation materials at the impoundment structure site.
3. Investigation of and reports on the geology of the impoundment structure site and its vicinity, possible geological hazards, availability and quality of construction materials, and other pertinent factors.

The plans, drawings and specifications shall be of such character and size setting forth such pertinent details and dimensions and in such form as the director requires consistent with good engineering practice. Plans, drawings and specifications which are submitted to the department shall be prepared by or under the direction of a professional engineer who is entitled to practice the profession of engineering pursuant to chapter 12, title 54, Idaho Code.

Where said mine tailings impoundment structure is, in the opinion of the director, not of sufficient importance to have the provisions of the section apply to such structure, then the director shall have power, upon written application, to suspend the provisions of this section in regard to such structure.

History.

I.C.,§ 42-1721, as added by 1978, ch. 309, § 12, p. 785.

§ 42-1722 — 42-1729. [Reserved.]

The legislature finds and declares that:

The water resources and waterways of Idaho constitute a valuable renewable resource;
The welfare of the people of Idaho is dependent upon conservation, development and optimum use of our water resources and waterways;
State regulation of development and use of our water resources and waterways is necessary to ensure water is available to meet the present and future needs of the people of Idaho;
The development of Idaho’s water resources for hydropower, irrigation, domestic, commercial, municipal, industrial and other uses in a manner that considers competing uses and values provides important benefits to the people of Idaho;
Comprehensive planning is necessary to minimize conflicts between competing uses and to ensure optimal protection of all beneficial uses of water;
A single state agency should formulate a comprehensive state water plan;
Selected rivers possessing outstanding fish and wildlife, recreational, aesthetic, historic, cultural, natural or geologic values should be protected for the public benefit and enjoyment;
Section 401 of the federal clean water act gives the state certification authority to regulate activities licensed or permitted by federal agencies to insure the protection of the quality of state water; and
The comprehensive state water plan required by this chapter shall not alter any existing responsibilities, jurisdiction or planning functions of state agencies established by state or federal law.

History.

I.C.,§ 42-1730, as added by 1988, ch. 370, § 3, p. 1090.

STATUTORY NOTES

Legislative Intent.

Section 1 of S.L. 1988, ch. 370 read: “The legislature finds and declares that a central component of state sovereignty is the inherent right of the state to regulate and to control the natural resources of this state. In a state such as Idaho, it is essential that the state exercise its full authority to manage its water. To that end, it is the purpose of this act to provide for the full exercise of all the state’s rights and responsibilities to manage its water resource.

Federal References.

Section 401 of the federal clean water act, referred to in subsection (8), is codified as 33 U.S.C.S. § 1341.

§ 42-1731. Definitions.

For the purpose of this chapter:

“Alteration” means any activity using mechanized equipment that moves or overturns gravel or earth.
“Board” means the Idaho water resource board.
“Comprehensive state water plan” means the plan adopted by the board pursuant to section 42-1734A, Idaho Code, or a component of such plan developed for a particular water resource, waterway or waterways and approved by the legislature.
“Dredge or placer mining” means any dredge or other placer mining operation to recover minerals with the use of a dredge boat or sluice washing plant whether fed by bucket line as a part of such dredge or by a separate dragline or any other method including, but not limited to, suction dredges which are capable of moving more than two (2) cubic yards per hour of earth material.
“Hydropower project” means any development which uses a flow of water as a source of electrical or mechanical power, or which regulates the flow of water for the purpose of generating electrical or mechanical power. A hydropower project development includes all powerhouses, dams, water conduits, transmission lines, water impoundments, roads, and other appurtenant works and structures.
“Interim protected river” means a waterway designated pursuant to section 42-1734D or 42-1734H, Idaho Code, as protected for up to two (2) years while a component of the comprehensive state water plan is prepared for that waterway.
“Natural river” means a waterway which possesses outstanding fish and wildlife, recreation, geologic or aesthetic values, which are free of substantial existing man-made impoundments, dams or other structures, and of which the riparian areas are largely undeveloped, although accessible in places by trails and roads.
“Protected river” means a waterway protected in the comprehensive state water plan by designation as either a natural river or a recreational river.
“Recreational river” means a waterway which possesses outstanding fish and wildlife, recreation, geologic or aesthetic values, and which might include some man-made development within the waterway or within the riparian area of the waterway.
“Riparian area” means that area within one hundred (100) feet of the mean highwater mark of a waterway.
“State agency” means any board, commission, department or executive agency of the state of Idaho.
“Stream bed” means a natural water course of perceptible extent with definite bed and banks, which confines and conducts the water of a waterway which lies below and between the ordinary high water mark on either side of that waterway.
“Waterway” means a river, stream, creek, lake or spring, or a portion thereof, and shall not include any tributary thereof.

History.

I.C.,§ 42-1731, as added by 1988, ch. 370, § 3, p. 1090.

STATUTORY NOTES

Prior Laws.

Former§ 42-1731, which comprised 1965, ch. 320, § 1, p. 901, was repealed by S.L. 1988, ch. 370, § 2.

CASE NOTES

Cited

Idaho Water Resource Bd. v. Kramer, 97 Idaho 535, 548 P.2d 35 (1976).

OPINIONS OF ATTORNEY GENERAL

Revenue Bonds.

It is statutorily authorized and constitutionally permissible for the state water resource board to issue revenue bonds to a local water project sponsor to construct a hydroelectric power project which serves no other water development, usage, or conservation purpose.OAG 85-2.

§ 42-1732. Idaho water resource board.

Pursuant to the provisions of article 15, section 7, of the constitution of the state of Idaho, there is hereby established as the constitutional water agency within the department of water resources the Idaho water resource board which shall consist of eight (8) appointed members. The eight (8) appointed members shall be qualified electors of the state, no more than four (4) of whom shall be members of the same political party. Appointment of board members shall be made solely upon consideration of their knowledge, interest and active participation in the field of reclamation, water use or conservation and no member shall be appointed a member of the board unless he shall be well informed upon, interested in, and engaged actively in the field of reclamation, water use or conservation of water. Four (4) of these members shall be appointed at large and no more than three (3) of the eight (8) members shall be residents of a single district. To insure representation of water users of all geographic locations of the state, one (1) member shall be appointed from each of the following districts:

District No. 1 which shall consist of the counties of Boundary, Bonner, Kootenai, Shoshone, Benewah, Latah, Clearwater, Nez Perce, Lewis and Idaho;

District No. 2 which shall consist of the counties of Adams, Valley, Washington, Payette, Gem, Boise, Canyon, Ada, Elmore and Owyhee;

District No. 3 which shall consist of the counties of Camas, Gooding, Jerome, Twin Falls, Cassia, Blaine, Lincoln, Minidoka, Lemhi, Custer and Butte;

District No. 4 which shall consist of the counties of Clark, Fremont, Jefferson, Madison, Teton, Bingham, Bonneville, Power, Bannock, Caribou, Oneida, Franklin and Bear Lake.

All appointments shall be made by the governor with the advice and consent of the senate. As soon as practicable after passage of this act, the governor shall appoint all eight (8) members; four (4) members shall be appointed to terms which will expire on January 1, 1967, four (4) members shall be appointed to terms which will expire on January 1, 1969, and thereafter all appointments shall be to four (4) year terms. Any vacancy caused by death, removal, disqualification, or resignation, shall be filled by the governor for the unexpired term caused by the vacancy. The appointed members shall be compensated as provided by section 59-509(h), Idaho Code.

History.

1965, ch. 320, § 2, p. 901; am. 1974, ch. 20, § 22, p. 533; am. 1980, ch. 247, § 42, p. 582.

STATUTORY NOTES

Compiler’s Notes.

The phrase “after passage of this act” in the second sentence in the last paragraph refers to after passage of S.L. 1965, chapter 320, which was approved and effective on March 30, 1965. Section 62 of S.L. 1974, ch. 20 read, “The appointive members of the water resource board serving on the effective date of this act shall continue in office for the terms to which they were originally appointed, subject to the provisions of section 42-1732, Idaho Code.”

Palisades Dam Hydroelectric Projection on Snake River.

“SECTION 1. The Idaho water resource board is authorized to plan, finance, acquire, construct, own, operate and maintain a water project known as the Palisades Dam Hydroelectric project on Snake River consisting of a power plant at the existing Palisades Dam as may be approved by the federal energy regulatory commission, and of related works and facilities for the generation and wholesale of hydroelectric energy and capacity at the site of production, together with all other necessary structures and equipment and all real and personal property necessary therefor.

“SECTION 2. The Idaho water resource board may make such plans and enter into such contracts with one or more privately owned electric utility companies or other entities, public or private, as are necessary or appropriate, providing, either:

“(a) Where all or any part of the water project authorized by section 1 of this act is to be owned and operated by the board, for the wholesale of hydroelectric energy and capacity at the site of production; or

“(b) Where all or any part of the water project is to be jointly owned by the board and another contracting party or parties, for a joint venture.

“Any power sales or joint venture contract entered into by the board pursuant to the provisions of this section 2 shall be submitted by the board to the committee on the state water plan and shall not become effective until approved by a majority of the members of that committee at a regular or special meeting of the committee held for that purpose.

“SECTION 3. A contract entered into by the Idaho water resource board with respect to joint ownership of the water project authorized in section 1 of this act or for the wholesale of hydroelectric energy and capacity at the site of production of the water project shall contain those terms, conditions and provisions not inconsistent with this act as the board shall determine to be in the interests of the state. A contract may include provisions relating to, but not limited to, the following:

“(a) The purpose or purposes of the contract;

“(b) The duration of the contract;

“(c) The method of appointing or employing the personnel necessary in connection with the project;

“(d) The method of financing the project, including if necessary, the apportionment of costs of construction and costs of operation and maintenance;

“(e) The respective ownership interests of the parties in the project, whether joint, several or segregated (which ownership interests shall be in proportion to the funds or the value of property supplied by each party for the acquisition of the project) and in the property used or useful in connection therewith, and the procedures for disposition of that property when the contract expires or is terminated or when the project is abandoned, decommissioned or dismantled;

“(f) The prohibition or restriction of the alienation or partition of the board’s undivided interest in the project, which provisions shall not be subject to a law restricting covenants against alienation or partitions;

“(g) The construction and repair of the project, which may include a determination by the board that a contracting party may construct or repair the project on behalf of the board; “(h) The operation and maintenance of the project, which may include a determination by the board that a contracting party may operate and maintain the project on behalf of the board;

“(i) Payments to be made to the board by a contracting party pursuant to a power sales contract for the purchase of hydroelectric energy and capacity or, pursuant to a joint venture contract, for the use or operation of the interest of the board in the project, or a combination thereof;

“(j) Detailed project costs, or a method of determination of such costs;

“(k) The creation of a committee of representatives of the parties to the contract, which committee shall have the powers regarding the construction and the operation and maintenance of the project as the contract, not inconsistent with this act, may provide;

“( l ) If the board is to construct and own substantially all of the dam portion of the project, for the construction and installation by a contracting party in or adjacent to such dam of works and facilities not included in the dam portion of the project which are necessary to the generation of hydroelectric energy and capacity and for the transmission thereof;

“(m) Obtaining all necessary licenses and permits for the ownership and operation of the project, provided that the board, or the board and the other contracting parties, shall petition the Federal energy regulatory commission for insertion of the license condition subordinating the project power right to future upstream depletionary use;

“(n) For indemnification of construction and operation agents, if any, provided that the board shall be liable only for its own acts with regard to the financing, planning, acquisition, construction, ownership, operation or maintenance of the project;

“(o) That no moneys or other contributions to the project supplied by the board shall be credited or otherwise applied to the account of any other contracting party;

“(p) Methods for amending and terminating the contract; and

“(q) Any other matters deemed by the parties to the contract to be necessary and proper, not inconsistent with the provisions of this act.

“SECTION 4. The Idaho water resource board is authorized to issue and sell revenue bonds of the board pursuant to the provisions of sections 42-1739 through 42-1749, Idaho Code, as now or hereafter in force, for the purpose of paying all or any part of the costs of planning, financing, acquiring and constructing the water project authorized in section 1 of this act. The board shall pledge to the payment of those revenue bonds the revenues which the board shall derive from the ownership and operation of the project pursuant to the contract entered into as provided in section 2 of this act. In addition to the other things required by law, the resolution or indenture pursuant to which the revenue bonds are to be issued shall provide that all revenues derived by the board from the operation and ownership of the project, after the payment of any costs of operation and maintenance of the project for which the board is responsible, the establishment and maintenance of a fund for the payment of principal of and interest on the revenue bonds as the same shall come due, the establishment of adequate debt service reserves, and such other contingency or other funds as the board deems desirable, shall in each year be deposited into the water management account created and established in section 42-1760, Idaho Code, and may be used for any purposes set forth in that act.

“SECTION 5. The development of the water project authorized in section 1 of this act is hereby declared not to be subject to the policy expressed in the last sentence of section 42-1738, Idaho Code.

“SECTION 6. The legislature finds and declares that the development of the Palisades Dam Hydroelectric Project by the Idaho water resource board of the water project authorized in section 1 of this act is in the public interest, does not conflict with the state water plan and that it is a public purpose for the Idaho water resource board to exercise the power and authority granted in this act to: “(a) By contributing to the development of necessary electrical energy for use in the state of Idaho, achieve economies in the generation of electricity through the use of water resources thereby contributing to the meeting of the future power needs of the state of Idaho and its inhabitants.

“(b) Facilitate irrigation of the arid lands of the state of Idaho by providing means of utilizing the water resources of the state of Idaho;

“(c) Maximize the recreational potential, development of fish and wildlife habitat, and uses of the water resources of the state of Idaho; and

“(d) Maximize the utilization of the water resources of the state of Idaho for all beneficial uses subject to article XV, section 3, of the state constitution.

“SECTION 7. This act and the provisions hereof shall be construed liberally to effectuate purposes set out in section 6 of this act.

“SECTION 8. An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval.” Approved April 5, 1979.

Dworshak Hydroelectric Project on Snake River.

“SECTION 1. The legislature finds and declares that the development of the Dworshak hydroelectric project by the Idaho water resource board in conjunction with the development of the water supply system for the existing Dworshak national fish hatchery and the proposed Clearwater fish hatchery as a part of the lower snake river fish and wildlife compensation plan is in the public interest and hereby authorizes the project.

“SECTION 2. The Idaho water resources board is authorized to take all actions necessary in accordance with existing law to plan, finance, construct, acquire, operate, own and maintain the said Dworshak hydroelectric project, to provide access to water at the project site to the city of Orofino to be used for municipal and industrial purposes, to negotiate and enter into contracts for the wholesale of hydroelectric power at the site of production, or as an alternative to enter into a long term lease agreement with one or more public or privately owned electric utility companies or other entities, for the operation and management of the project and the purchase of the hydroelectric power produced by the project, to acquire all necessary real and personal property in connection with the project, and to issue and sell revenue bonds under the provisions of sections 42-1739 through 42-1749, Idaho Code, pledging thereto the revenues which the board shall derive from such project, in order to pay its costs of planning, financing, acquisition and construction, operation and maintenance of such water project. All moneys paid or property supplied by the Idaho water resource board for the purpose of carrying out the provisions of this section are hereby declared to be for a public purpose.

“SECTION 3. All surplus revenues of the Idaho water resource board derived from the facilities constituting the water project, after the payment of the costs of operation and maintenance expenses of the water project, the establishment and maintenance of a fund for the payment of the principal and interest on the revenue bonds, the establishment and maintenance of adequate reserves therefor, and the establishment and maintenance of such contingency or other funds as the board deems desirable, shall be paid by the board into the Idaho water resource board revolving development account and the water management account established in sections 42-1752 and 42-1760, Idaho Code, in such proportion as the board in its discretion shall determine. Such moneys, together with moneys accruing to or earned thereon, shall be appropriated continuously, set aside, and made available until expended, to be used by the board in the administration of such accounts and in the funding of water projects in the state of Idaho in accordance with the statutes and regulations governing the operation of said accounts, provided that funds from said accounts shall not be used to finance the development of hydropower production projects by the board unless such power production is connected with another project purpose as authorized in section 42-1734(5), Idaho Code. “SECTION 4. The provisions of this act shall be construed liberally to effectuate the stated purposes of the act.”

OPINIONS OF ATTORNEY GENERAL

Revenue Bonds.

The Idaho water resource board could issue revenue bonds to fund Idaho’s share of a joint water project constructed by another entity without legislative approval.OAG 89-1.

The Idaho water resource board has authority to issue revenue bonds, either separately or jointly with the other compacting states, to fund Idaho’s share of a joint water project on the Bear River within Idaho, Utah, or Wyoming. However, the Idaho Legislature must authorize construction of the project before the Idaho water resource board may issue the revenue bonds.OAG 89-1.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the 1984 Swan Falls Settlement, Clive J. Strong & Michael C. Orr. 52 Idaho L. Rev. 223 (2016).

§ 42-1733. Organization.

The business of the board shall be conducted as follows:

The first meeting of the board shall be held in the city of Boise within thirty (30) days following its appointment and thereafter the board shall hold no less than four (4) regular meetings annually on dates and at places set by the board. The board shall maintain its principal office in Ada county. Special meetings of the board may be held by call of the chairman, four (4) of the members of the board, or the governor. A majority of board members at any meeting shall constitute a quorum for the transaction of any business. No notice shall be required for regular, special or adjourned meetings, providing the time and place of the meeting is fixed at a meeting at which all of the board members are in attendance. Otherwise, five (5) days written or telegraphic notice setting out the time, place and purpose of the meeting shall be required. Any meeting of the board at which all of the members are present shall be as valid as if held pursuant to notice. Members may waive notice in writing either before or at the time of the meeting.
All meetings at which official action is taken by the board shall be open to the public; the board may hold executive sessions at which no official action is taken.
At its first meeting the board shall elect one (1) of its members chairman and one (1) of its members vice chairman. Such officers shall hold their respective offices for a period of two (2) years and until their successors are elected and qualified. Should a vacancy occur in either office, the board shall elect a member to fill such vacancy for the remainder of the term.
The chairman shall preside at all meetings of the board, perform the normal duties of that office and such other duties as may be required of him by the board.
The vice chairman shall possess all of the powers and perform all of the duties of the chairman in the event of the death, absence, disability or refusal to act on the part of the chairman, and such authority shall extend until a new chairman has been elected and qualified. He shall also perform such other duties as may be required of him by the board.
The board shall select a secretary who may be a member of the board. The secretary shall be responsible for full and accurate minutes of all meetings of the board, a record of its proceedings, and every ruling, order and decision made by it. He shall also perform such other duties as may be required of him.
The board shall adopt a seal having upon it the words, “Idaho water resource board,” which shall be placed in the care and custody of the director.
Each member of the board shall, before entering upon the discharge of his official duties, file with the secretary of state the statutory oath of office to which, and as a part thereof, shall be added a declaration of the political party to which said board member belongs.

History.

1965, ch. 320, § 3, p. 901; am. 2001, ch. 183, § 17, p. 613.

STATUTORY NOTES

Cross References.

Oath of office, § 59-401 et seq. CASE NOTES

Open Meetings.

The deliberations of the administrative committee of the water resource board are not subject to the open hearing requirements of this section because it is not the governing body of the board. Idaho Water Resource Bd. v. Kramer, 97 Idaho 535, 548 P.2d 35 (1976).

§ 42-1734. Powers and duties.

The board shall, subject to the provisions of chapter 52, title 67, Idaho Code, have the following powers and duties:

To have and exercise all of the rights, powers, duties and privileges vested by article XV, section 7, of the constitution of this state in the water resource agency, and the water resource board, herein created, is hereby constituted the water resource agency;
To institute judicial proceedings to have water rights established by court decree on any stream, lake or underground water basin; in such proceedings court costs of the action, including the survey and determination of water uses by the director of the department of water resources, shall be borne by the state;
To appear, when requested by the governor, on behalf of and represent the state in matters related to its duties in any proceeding, negotiation, or hearing involving the federal government or other state; provided, however, that compact commissions now established by law shall continue to act but in so doing shall report to it;
To accept, receive, initiate, investigate, consider and promote such water projects as it deems to be in the public interest;
To generate and wholesale hydroelectric power at the site of production if such power production is connected with another purpose for such project;
To file applications and obtain permits in the name of the board, to appropriate, store, or use the unappropriated waters of any body, stream, or other surface or underground source of water for specific water projects. Such filings and appropriations by the board, or any water rights owned or claimed by the board, shall be made in the same manner and subject to all of the state laws relating to appropriation of water, with the exception that the board will not be required to pay any fees required by the laws of this state for its appropriations. The filings and appropriations by the board shall be subject to contest or legal action the same as any other filing and appropriation, and such filings and appropriations shall not have priority over or affect existing prior water rights of any kind or nature; provided that the board shall have the right to file for water rights with appropriate officials of other states as trustee for project users, and to do all things necessary in connection therewith;
To finance said projects with revenue bonds or such moneys as may be available;
To acquire, purchase, lease, or exchange land, rights, water rights, easements, franchises and other property deemed necessary or proper for the construction, operation and maintenance of water projects;
To exercise, in accordance with the provisions of title 7, chapter 7, Idaho Code, the right of eminent domain to acquire property necessary for the construction of projects, both land and water;
To cooperate in all water studies, planning, research, or activities with any state or local agency in this state, or any other state or any federal agency and to enter into contracts with federal, state and local governmental agencies to effect this purpose;
To present to the governor for presentation to the legislature not later than the 30th of November prior to the convening of a regular legislative session the final report containing the complete plans, costs and feasibility estimates for any water project which the board recommends that the state construct in accordance with the comprehensive state water plan; and to construct any water project specifically authorized by the legislature; (12) To enter into contracts with political subdivisions, municipal entities, individuals and others for the rehabilitation and repair of existing irrigation projects and irrigation facilities, the sale and/or lease of water, use of water, water storage, electric power, or other service, to turn over projects to water users after pay-out and to lease facilities, sell, lease or dispose of surplus facilities subject to the provisions of applicable law;

(13) To enter into contracts to effect the purposes of this chapter;

(14) To sue and be sued;

(15) To study and examine pollution of rivers, streams, lakes and ground water, and to advise, cooperate and counsel with the state board of environmental quality in a manner designed to avoid inhibition of economic development and at the same time insure the right of the people to comfortably enjoy our water resources and accomplish the establishment of water quality criteria;

(16) To call upon any other state agency for cooperation, assistance or use of information available to such agency; provided, however, if such agency is required to make substantial expenditures in responding to such request, appropriate arrangements for compensation may be accomplished;

(17) To issue revenue bonds for the rehabilitation and repair of existing irrigation projects and irrigation facilities, and for water projects, pledge any revenues available to the board to secure said bonds, exclusive of any revenues derived from legislative appropriations, provided that any amounts received from loan repayments regardless of the source of funds for the loan may be pledged, and pool revenues from one (1) or more projects constructed, financed or operated by the board, or existing irrigation project or facilities rehabilitated or repaired by the board;

(18) To formulate and recommend, prior to each session of the legislature, proposed legislation that may be necessary to assist it in effecting a proper plan for conservation, development and utilization of water resources and waterways and to report to each session of the legislature on the public business entrusted to its care and the financial affairs of the board. In the period between legislative sessions, the board shall deposit with the legislative council statements describing all actions taken and projects undertaken by it;

(19) To issue procedural and operative rules as may be necessary for the conduct of its business;

(20) To appoint advisory boards when deemed desirable to aid in the execution of its powers;

(21) To take such other action as may be necessary to carry out its duties and powers under this chapter and the constitution of the state of Idaho;

(22) To loan without prior legislative approval, the proceeds of the sale of revenue bonds to the local water project sponsor or sponsors; to enter into lease, sale or loan agreement; and to purchase all or a portion of, or participate in, loans, originated by private lending institutions.

History.

1965, ch. 320, § 4, p. 901; am. 1974, ch. 20, § 23, p. 533; am. 1977, ch. 172, § 1, p. 441; am. 1981, ch. 90, § 1, p. 125; am. 1988, ch. 370, § 4, p. 1090; am. 2001, ch. 103, § 82, p. 253; am. 2003, ch. 80, § 1, p. 254.

STATUTORY NOTES

Cross References.

Board of environmental quality,§ 39-107.

Legislative council,§ 67-427 et seq.

CASE NOTES

Hearings on Projects.

Public hearings on project proposals submitted for possible incorporation into the state water plan need only be conducted in those areas which will be most immediately and directly affected by the project. Idaho Water Resource Bd. v. Kramer, 97 Idaho 535, 548 P.2d 35 (1976).

In General.

A comprehensive state water plan does not need to have been officially adopted prior to the submission of a water project. Idaho Water Resource Bd. v. Kramer, 97 Idaho 535, 548 P.2d 35 (1976).

An administrative agency like the department of water resources has only such powers as the statute or ordinance confers. Beker Indus., Inc. v. Georgetown Irrigation Dist., 101 Idaho 187, 610 P.2d 546 (1980).

OPINIONS OF ATTORNEY GENERAL

Revenue Bonds.

The Idaho water resource board could issue revenue bonds to fund Idaho’s share of a joint water project constructed by another entity without legislative approval.OAG 89-1.

The Idaho water resource board has authority to issue revenue bonds, either separately or jointly with the other compacting states, to fund Idaho’s share of a joint water project on the Bear River within Idaho, Utah, or Wyoming. However, the Idaho legislature must authorize construction of the project before the Idaho water resource board may issue the revenue bonds.OAG 89-1.

§ 42-1734A. Comprehensive state water plan. — (1) The board shall, subject to legislative approval, progressively formulate, adopt and implement a comprehensive state water plan for conservation, development, management and optimum use of all unappropriated water resources and waterways of this state in the public interest. The comprehensive state water plan shall consist of: Part A — statewide policies, goals and objectives; and Part B

component water plans for individual waterways, river basins, drainage areas, river reaches, ground water aquifers or other geographic designations. As part of Part B of the comprehensive state water plan, the board may designate selected waterways as protected rivers as provided in this chapter. The comprehensive state water plan shall be based upon studies and public hearings in affected areas at which all interested parties shall be given the opportunity to appear, or to present written testimony in response to published proposals for such policy programs and proposed designations. A minimum of sixty (60) days shall be allowed between publication of a proposal and the date on which no further testimony on the proposal will be accepted. All comments in writing shall be preserved as a part of the record of the board. In adopting a comprehensive state water plan the board shall be guided by these criteria:

Existing rights, established duties, and the relative priorities of water established in article XV, section 3, of the constitution of the state of Idaho, shall be protected and preserved;
Optimum economic development in the interest of and for the benefit of the state as a whole shall be achieved by integration and coordination of the use of water and the augmentation of existing supplies and by protection of designated waterways for all beneficial purposes;
Adequate and safe water supplies for human consumption and maximum supplies for other beneficial uses shall be preserved and protected;
Subject to prior existing water rights for the beneficial uses now or hereafter prescribed by law, minimum stream flow for aquatic life, recreation and aesthetics and the minimization of pollution and the protection and preservation of waterways in the manner hereafter provided shall be fostered and encouraged and consideration shall be given to the development and protection of water recreation facilities;
Watershed conservation practices consistent with sound engineering and economic principles shall be encouraged.
irrigation;
flood control;
water supply;
timber;
mining;
livestock watering;
scenic values;
natural or cultural features;
domestic, municipal, commercial and industrial uses; and
other aspects of environmental quality and economic development.

(2) The board may develop a comprehensive state water plan in stages based upon waterways, river basins, drainage areas, river reaches, groundwater aquifers, or other geographic considerations. The component of the comprehensive state water plan prepared for particular water resources and waterways shall contain, among other things, the following:

(a) A description of the water resources and waterway or waterways that are the subject of the plan, including pertinent maps detailing the geographic area of the plan;

(b) A description of the significant resources of the water resources and waterway or waterways;

(c) A description of the various existing and planned uses for these resources including currently undeveloped areas of the waterway and future plans for those areas, with a discussion of the advantages and disadvantages associated with each planned use; and

(d) A discussion of goals, objectives, and recommendations for improving, developing, or conserving the water resources and waterway or waterways in relation to these resources, including an examination of how different uses will promote the overall public interest, a statement as to the goals the plan expects to achieve, and an analysis of how any specific recommendations further those goals. A description of the methodology used in developing the plan shall be included.

(3) The description of the resources and uses in subsections (2)(b) and (2)(c) of this section shall contain, among other things:

(a) navigation;

(b) power development;

(d) fish and wildlife;

(e) recreational opportunities;

(4) The comprehensive state water plan may designate protected rivers. Designations shall be based upon a determination by the board that the value of preserving a waterway for particular uses outweighs that of developing the waterway for other beneficial uses and shall specify whether a protected river is designated as a natural or recreational river. The plan may also describe those water resources and waterways which are not designated as protected rivers.

(5) In designating a natural river, the board shall prohibit the following activities:

(a) construction or expansion of dams or impoundments;

(b) construction of hydropower projects;

(d) dredge or placer mining;

(e) alterations of the stream bed; and

(f) mineral or sand and gravel extraction within the stream bed.

(6) In designating a recreational river, the board shall determine which of the activities listed in subsection (5) of this section shall be prohibited and may specify the terms and conditions under which activities that are not prohibited may go forward.

History.

(7) Any prohibition or terms and conditions imposed pursuant to subsections (5) and (6) of this section shall remain in effect until the legislature acts upon the recommendation of the board as provided in section 42-1734B, Idaho Code, or until the legislature revokes its earlier approval of a protected river by law. History.

I.C.,§ 42-1734A, as added by 1988, ch. 370, § 5, p. 1090; am. 1998, ch. 63, § 1, p. 220.

STATUTORY NOTES

Compiler’s Notes.

Section 1 of S.L. 2012, ch. 118 provided: “Pursuant to Sections 42-1734A [this section] and 42-1779, Idaho Code, the Idaho Water Resource Board has prepared and, by resolution dated July 29, 2011, adopted the Comprehensive Aquifer Management Plan for the Rathdrum Prairie Aquifer as a component of the Comprehensive State Water Plan. Pursuant to Section 42-1734B(6), Idaho Code, the Comprehensive Aquifer Management Plan for the Rathdrum Prairie Aquifer (”RP CAMP“) is approved as a component of the Comprehensive State Water Plan, and pursuant to Section 42-1734B(4), Idaho Code, all state agencies shall exercise their duties in a manner consistent with the RP CAMP.”

Henrys Fork Basin.

Henrys Fork Basin. Sections 1 and 2 of S.L. 1992, ch. 340 read: “Notwithstanding any other provisions of law to the contrary, the Water Resource Board shall designate the following stretches or reaches in the Henrys Fork Basin as an interim protected river pursuant to Section 42-1734D, Idaho Code. The Water Resource Board shall determine which of the activities listed in subsection (5) of Section 42-1734A, Idaho Code, are prohibited. The aforementioned stretches or reaches are summarized as follows:

“(1) Henrys Fork of the Snake River from its point of origin at Henrys Lake to the point of its confluence with the backwaters of Ashton Reservoir.

“(2) Warm River: Partridge Creek to Warm River Campground.

“(3) Falls River: Idaho border to Kirkham bridge.

“(4) Bitch Creek: Idaho border to mouth.

“(5) Teton River: Trail Creek to the backwaters of Teton Dam.

“Interim protected river status provided by this act shall be terminated not later than ten (10) days following the end of the regular legislative session in 1994.

“An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval.” Approved April 14, 1992.

South Fork Boise River Sub-basin Comprehensive State Water Plan.

South Fork Boise River Sub-basin Comprehensive State Water Plan. Section 1 of S.L. 1991, ch. 24 read: “That pursuant to section 42-1734B(6), Idaho Code, the comprehensive state water plan for the South Fork Boise River sub-basin, adopted by resolution of the Idaho water resource board on June 29, 1990, be, and the same is hereby ratified and approved. In accordance with section 42-1734A, Idaho Code, the sub-basin plan includes protected river reach designations summarized as follows:

“(1) The South Fork Boise River from Anderson Ranch Dam downstream to Black Canyon Creek as a recreational river;

“(2) The South Fork Boise River from the mouth of Black Canyon Creek downstream to a point 250 yards upstream of Neal Bridge as a natural river;

“(3) Lime Creek from its mouth to its headwaters and all tributaries on the north side of Lime Creek, including the north and middle forks and all their tributaries from their mouth to their headwaters, as natural rivers; and all remaining tributaries of Lime Creek from their mouth to their headwaters as recreational rivers; and “(4) Big Smoky Creek from its confluence with Calf Creek to its headwaters and all tributaries of Big Smoky Creek above and including Calf Creek from their mouth to their headwaters as natural rivers.”

Payette River Reaches Comprehensive State Water Plan.

Payette River Reaches Comprehensive State Water Plan. Section 1 of S.L. 1991, ch. 221 read: “That pursuant to Section 42-1734B(6), Idaho Code, the Comprehensive State Water Plan for the Payette River Reaches, adopted by resolution of the Idaho Water Resource Board on February 1, 1991, be, and the same is hereby ratified and approved. In accordance with Section 42-1734A, Idaho Code, the basin plan includes protected river reach designations summarized as follows:

“(1) The South Fork of the Payette River from the boundary of the Sawtooth National Recreation Area to its confluence with the Middle Fork Payette River as a recreational river;

“(2) The North Fork of the Payette River from Cabarton Bridge to its confluence with the Payette River as a recreational river; and

“(3) The Payette River from the confluence of the Middle and South Forks of the Payette River to Beehive Bend (a point approximately two and one-half miles upstream of Gardena) as a recreational river.”

North Fork Clearwater Basin Comprehensive State Water Plan.

North Fork Clearwater Basin Comprehensive State Water Plan. Section 1 of S.L. 1996, ch. 296 read: “That pursuant to Section 42-1734B(6), Idaho Code, the Comprehensive State Water Plan for the North Fork Clearwater Basin, adopted by resolution of the Idaho Water Resource Board on January 12, 1996, be, and the same is hereby ratified and approved. In accordance with Section 42-1734A, Idaho Code, the basin plan includes protected river reach designations summarized as follows:

“(1) Cayuse Creek, headwaters to mouth, as a natural river;

“(2) Isabella Creek, headwaters to Black Creek, as a natural river;

“(3) Kelly Creek, headwaters to Moose Creek, as a natural river;

“(4) Little North Fork Clearwater River, Meadow Creek to Cedar Creek, as a natural river;

“(5) North Fork Clearwater River, headwaters to Wrangle Creek, as a natural river;

“(6) North Fork Clearwater River, Isabella Creek to Dworshak Reservoir backwaters, as a natural river;

“(7) Weitas Creek, headwaters to mouth, as a natural river;

“(8) Beaver Creek, Charlie Creek to mouth, as a recreational river;

“(9) Elk Creek, headwaters to Deep Creek, as a recreational river;

“(10) Isabella Creek, Black Creek to mouth, as a recreational river;

“(11) Kelly Creek, Moose Creek to mouth, as a recreational river;

“(12) Little North Fork Clearwater River, Cedar Creek to Dworshak Reservoir backwaters, as a recreational river;

“(13) Little North Fork Clearwater River, headwaters to Meadow Creek, as a recreational river;

“(14) North Fork Clearwater River, Wrangle Creek to Isabella Creek, as a recreational river; and

“(15) Reeds Creek, Calhoun Creek to mouth, as a recreational river.”

Eastern Snake Plain Aquifer.

“1. Pursuant to 2006 Senate Concurrent Resolution No. 136 and Section 42-1734A, Idaho Code, the Idaho Water Resource Board has prepared and adopted the Comprehensive Aquifer Management Plan for the Eastern Snake Plain Aquifer as a component of the Comprehensive State Water Plan. Pursuant to Section 42-1734B(6), Idaho Code, the Comprehensive Aquifer Management Plan for the Eastern Snake Plain Aquifer (‘ESPA CAMP’) is approved as a component of the Comprehensive State Water Plan. Pursuant to Section 42-1734B(4), Idaho Code, all state agencies shall exercise their duties in a manner consistent with the ESPA CAMP. “2. The Idaho Water Resource Board shall prepare and submit to the Legislature for approval, a funding mechanism for implementation of Phase I of the Comprehensive Aquifer Management Plan for the Eastern Snake Plain Aquifer. The funding mechanism shall be consistent with the funding participation targets set forth in the ESPA CAMP and shall be developed with the assistance of the ESPA CAMP Implementation Committee. The Idaho Water Resource Board shall, with the assistance of the Implementation Committee, prepare and submit to the Legislature for approval any subsequent proposed changes to the ESPA CAMP. Implementation plans should seek to optimize outcomes for fish and wildlife, recreation, hydropower, municipalities, irrigation, aquaculture and other uses.

“3. Implementation of Phase I of the Comprehensive Aquifer Management Plan for the Eastern Snake Plain Aquifer is subject to legislative approval of a funding mechanism, which shall be consistent with the funding participation targets set forth in the ESPA CAMP. The act does not constitute an obligation of state funds and any state funding shall be subject to the availability of funds. State agencies may use previously appropriated funds to begin implementation of Phase I.

“4. The CAMP recognizes that incidental ground water recharge that occurs as a result of the exercise of surface and flood irrigation water rights is an important component of the Eastern Snake Plain Aquifer water supply. The CAMP implementation plan shall include measures that recognize the benefits of incidental recharge, and that will encourage water users and canal managers to continue their historic surface water diversion practices.

“5. An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval.” Approved April 23, 2009.

Effective Dates.

Section 2 of S.L. 1991, ch. 24 declared an emergency. Approved March 4, 1991.

Section 2 of S.L. 1996, ch. 296 read: “An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval.” Approved March 18, 1996.

OPINIONS OF ATTORNEY GENERAL

Review.

Idaho Const., Art. XV, § 7 did not prohibit legislative action on the Payette River Plan during the 1991 legislative session; while§ 42-1734B(6) provides for one method of legislative review of such river plans, it does not preclude the legislature from enacting a specific law approving, amending or rejecting the comprehensive state plan.OAG 91-5.

Change.

The term “change” in Idaho Const., Art. XV 15, § 7 only refers to deletions or revisions to the existing state water plan and since the comprehensive state plan by the Idaho water resource board was an addition of a new component to the existing state water plan, it was not a change under Idaho Const., Art. XV, § 7.OAG 91-5.

§ 42-1734B. Board procedures for adopting a comprehensive state water plan.

Prior to the adoption of the comprehensive state water plan or any component of the comprehensive plan, the board shall conduct hearings in the manner provided in section 42-1734A, Idaho Code.
In the preparation, adoption, and implementation of the comprehensive state water plan, the board shall encourage the cooperation, participation, and assistance of state agencies. The board also shall solicit economic, energy, environmental, and other technical studies and recommendations from state agencies with particular expertise. All agencies of the state of Idaho shall cooperate with the board by providing requested existing information and studies pertaining in any manner to any matters which are the subject of this act. The board shall have discretion to balance all factors relevant to the formulation, adoption and implementation of the comprehensive state water plan and implementation and the designation of protected rivers.
Any state agency may petition the board to amend the comprehensive state water plan. The board shall review any petition filed pursuant to this section within six (6) months after it is filed and shall either commence action to amend the comprehensive plan or set forth its reasons for denying the request in writing.
All state agencies shall exercise their duties in a manner consistent with the comprehensive state water plan. These duties include but are not limited to the issuance of permits, licenses, and certifications; provided, however, that nothing in this chapter shall be construed to affect the authority of any state agency with respect to activities not prohibited by the comprehensive state water plan. The designation of a waterway as a natural or recreation river shall not preclude the department of health and welfare from establishing water quality standards for such waterway.
When a comprehensive state water plan is adopted, copies thereof shall be filed in the office of the governor and director of the department of water resources, and published and distributed generally.
The comprehensive state water plan and any component thereof developed for a particular waterway or waterways is subject to review and amendment by the legislature of the state of Idaho by law at the regular session immediately following the board’s adoption of the comprehensive state water plan or component thereof.
The board shall submit all subsequent changes to the legislature as provided in section 7, article XV, of the constitution of the state of Idaho. The board shall also use best efforts to provide notice of all subsequent changes to each member of the legislature on or before the first day of the regular legislative session following the change.
The board shall review and reevaluate Part A of the comprehensive state water plan, or any one (1) or more of the component water plans comprising Part B of the comprehensive state water plan, upon the adoption of a concurrent resolution of the legislature directing the review or requesting a specific amendment to the plan. The board also may undertake the review in response to a petition for amendment filed pursuant to subsection (3) of this section, or upon the board’s own initiative, as determined necessary by the board. Amendments to Part A or Part B of the comprehensive state water plan shall be adopted in the same manner as the original plan.
A protected river designated by the board shall not become a final part of the comprehensive state water plan until approved by law. If the legislature does not approve a protected river by law at the regular session immediately following the board’s designation of such protected river, then the designation of such protected river shall terminate and any prohibition or terms and conditions imposed on such protected river pursuant to subsection (5) or (6) of section 42-1734A, Idaho Code, shall be terminated ten (10) days following the end of the session. The failure to approve a protected river shall not operate to invalidate a comprehensive plan or component thereof. Nothing in this subsection shall prevent the legislature, however, from approving such protected river and reinstituting or modifying such prohibitions or terms and conditions in a subsequent session. (10) After adoption of a comprehensive plan or component thereof, the board shall administer the implementation of the plan.

History.

I.C.,§ 42-1734B, as added by 1988, ch. 370, § 5, p. 1090; am. 1998, ch. 63, § 2, p. 220; am. 2017, ch. 131, § 1, p. 308.

STATUTORY NOTES

Amendments.

The 2017 amendment, by ch. 131, designated the former second sentence in subsection (6) as present subsection (7); rewrote that sentence, which formerly read: “The board shall submit all subsequent modifications to the legislature in the same manner as provided in this subsection” and added the second sentence; and redesignated the subsequent subsections accordingly.

Compiler’s Notes.

The term “this act” in the third sentence in subsection (2) refers to S.L. 1988, Chapter 370, which is compiled as§§ 42-1730, 42-1731, and 42-1734 to 42-1734I.

Section 1 of S.L. 2012, ch. 118 provided: “Pursuant to Sections 42-1734A and 42-1779, Idaho Code, the Idaho Water Resource Board has prepared and, by resolution dated July 29, 2011, adopted the Comprehensive Aquifer Management Plan for the Rathdrum Prairie Aquifer as a component of the Comprehensive State Water Plan. Pursuant to Section 42-1734B(6) [subsection (6) of this section], Idaho Code, the Comprehensive Aquifer Management Plan for the Rathdrum Prairie Aquifer (”RP CAMP“) is approved as a component of the Comprehensive State Water Plan, and pursuant to Section 42-1734B(4) [subsection (4) of this section], Idaho Code, all state agencies shall exercise their duties in a manner consistent with the RP CAMP.”

Henrys Fork Basin Comprehensive State Water Plan.

Henrys Fork Basin Comprehensive State Water Plan. Section 1 of S.L. 1993, ch. 66 read: “That pursuant to Section 42-1734B(6), Idaho Code, the Comprehensive State Water Plan for the Henrys Fork Basin, adopted by resolution of the Idaho Water Resource Board on December 3, 1992, be, and the same is hereby approved.”

Section 2 of S.L. 1993, ch. 66 read: “The following stream reaches of the Henrys Fork of the Snake River and its tributaries are designated as protected rivers with the associated prohibited activities as set forth in the plan:

“1. Targhee Creek, including West and East Forks: from source to National Forest boundary (12.5 miles) — Natural

“Stream channel alterations shall be prohibited except those necessary to maintain and improve existing utilities, roadways, diversion works, fishery enhancement facilities and managed stream access facilities; for the maintenance of private property; for new diversion works; and for public agencies to construct public access facilities and fishery enhancement facilities. In addition, new private stream access facilities may be allowed with Idaho Water Resource Board approval.

“New diversion works shall be limited to pump installations which do not create an obstruction in the river; are visually blended with the surroundings so as to be less noticeable from the river; are provided with fish screens if appropriate; are to supply water for livestock, domestic, commercial or municipal uses; are sized to supply water at a rate not to exceed 0.5 cubic feet per second; and which receive the aesthetic and fish screen design approval of the Idaho Department of Water Resources.

“3. Henrys Fork: Island Park Dam to Riverside Campground (16 miles) — Recreational

“Stream channel alterations shall be prohibited except those necessary to maintain and improve existing utilities, roadways, diversion works, fishery enhancement facilities and managed stream access facilities; for the maintenance of private property; for new diversion works; and for public agencies to construct fishery enhancement facilities and public access facilities. In addition, new private stream access facilities may be allowed with Idaho Water Resource Board approval.

“Stream channel alterations shall be prohibited except those necessary to maintain and improve existing utilities, roadways, diversion works, impoundments, fish and wildlife enhancement facilities and public stream access facilities and for public agencies to construct public access facilities, and fish and wildlife enhancement facilities.

“5. Henrys Fork: Riverside Campground to Hatchery Ford (4 miles) — Natural

“6. Henrys Fork: 100 feet upstream of the Hatchery Ford boat ramp to a point 300 feet downstream of the ramp (approximately 400 feet) — Recreational

“7. Henrys Fork: Hatchery Ford boat ramp to National Forest Boundary near Warm River (13 miles) — Natural

“8. Henrys Fork: Forest Boundary near Warm River to Ashton Reservoir (8 miles) — Recreational

“Stream channel alterations are prohibited except those necessary to maintain and improve existing utilities, roadways, diversion works, fishery enhancement facilities and managed stream access facilities; for the maintenance of private property; for new water diversion works; and for public agencies to construct public access facilities and fishery enhancement facilities. In addition, new private stream access facilities may be allowed with Idaho Water Resource Board approval. “New diversion works shall be limited to installations which have the main riverbed structure located below the water level and blended with the riverbed or to pumping installations which do not create an obstruction in the river, and are visually blended with the surroundings so as to be less noticeable from the river; are provided with fish screens if appropriate; and which receive the aesthetic and fish screen design approval of the Idaho Department of Water Resources.

“9. Henrys Fork: Ashton Dam to Falls River (6 miles) — Recreational

“Stream channel alteration is prohibited except those necessary to maintain and improve existing utilities, roadways diversion works, fishery enhancement facilities and managed stream access facilities; for the maintenance of private property; for new water diversion works; and for public agencies to construct public access facilities and fishery enhancement facilities. In addition, new private stream access facilities may be allowed with Idaho Water Resource Board approval.

“10. Buffalo River (8 miles) and Elk Creek (1 mile) — Recreational

“The construction of hydropower projects is prohibited except for the rebuilding of the Ponds Lodge hydropower facility.

“Stream channel alteration is prohibited except those necessary to maintain and improve existing utilities, roadways diversion works, fishery enhancement facilities and managed stream access facilities; for the maintenance of private property; for new water diversion works; and for public agencies to construct public access facilities and fishery enhancement facilities; and for new diversion works including those associated with the rebuilding and upgrading of the Ponds Lodge hydroelectric project providing the conditions of the stream channel permit process are met.

“Construction or expansion of dams or impoundments are prohibited unless associated with the rebuilding and upgrading, including a raise in the water level, of the Ponds Lodge project.

“12. Warm River: Forest Route 153 bridge area (approximately 200 feet) — Recreational

“Stream channel alterations are prohibited except those necessary to maintain, improve, or replace the bridge.

“13. Warm River: Forest Route 153 bridge to Forest Route 154 bridge (7 miles) — Natural.

“14. Warm River: Forest Route 154 bridge area (approximately 200 feet) — Recreational

“Stream channel alterations are prohibited except those necessary to maintain, improve, or replace the bridge.

“15. Warm River: Forest Route 154 bridge to Warm River Campground (7 miles) — Natural

“17. Robinson Creek: Forest Route 241 bridge to mouth (4 miles) — Recreational

“Stream channel alterations are prohibited except those necessary to repair or replace existing bridges.

“18. Rock Creek: from Yellowstone Park boundary to mouth (9 miles) — Recreational

“Stream channel alterations are prohibited except those necessary to repair or replace existing bridges.

“19. Falls River: Idaho border to a point 100 feet upstream of the Yellowstone Diversion Dam (7 miles) — Natural

“20. Falls River: from 100 feet upstream of the Yellowstone Diversion Dam to Kirkham Bridge (11 miles) — Recreational

“The construction of water diversion works is prohibited except for those associated with off-stream storage projects. The Water Resource Board cannot support any project at this time since feasibility studies are not available for consideration. The existing water-right process provides opportunity for the public and the Water Resource Board to be involved in the approval of any potential project. “Stream channel alterations are prohibited except those necessary to maintain, improve, or relocate existing utilities, roadways, diversion works, fishery enhancement facilities and, managed stream access facilities; for the maintenance of private property; for new off-stream storage projects; and for public agencies to construct public access facilities and fishery enhancement facilities.

“The Falls River (FERC #9885) hydropower project will use the existing Marysville Canal diversion. This project has received a FERC license, and is such is considered a vested right by the Water Resource Board. The prohibitions associated with this state protected river designation, therefore, do not apply to this project.

“21. Boone Creek: Idaho border to mouth (4 miles) — Natural

“22. Conant Creek: Idaho border to National Forest boundary (6 miles) — Natural

“23. Conant Creek: National Forest boundary to Conant Creek diversion structure (3 miles) — Recreational

“Stream channel alterations are prohibited except those necessary to maintain diversion works; fishery enhancement facilities and managed stream access facilities; for the maintenance of private property; for new diversion works; and for public agencies to construct public access facilities and fishery enhancement facilities. New private stream access facilities may be allowed with Idaho Water Resource Board approval.

“24. Teton River: Trail Creek to Highway 33 (14 miles) — Recreational

“25. Teton River: Highway 33 to Felt Dam (11 miles) — Recreational

“The construction of hydropower projects is prohibited except for the Upper Teton Project (FERC #10613), located in Sec. 3, T. 6 N., R. 44 E. The Water Resource Board has reviewed this proposed project and feels that the minimum streamflow that exists will provide sufficient protection to the river in the project area.

“26. Teton Creek: from the springs near Highway 33 to mouth (3 miles) — Recreational

“Stream channel alterations are prohibited except those necessary to maintain diversion works, fishery enhancement facilities and managed stream access facilities; for the maintenance of private property; for new diversion works; and for public agencies to construct public access facilities and fishery enhancement facilities. New private stream access facilities may be allowed with Idaho Water Resource Board approval.

“27. Fox Creek: from the springs to mouth (2.5 miles) — Recreational

“28. Badger Creek: from the springs to mouth (3 miles) — Recreational

“29. Bitch Creek: Idaho Border to the railroad trestle (5 miles) — Natural

“30. Bitch Creek: Railroad trestle to Highway 32 (2 miles) — Recreational

“31. Bitch Creek: Highway 32 to mouth (7.5 miles) — Natural

Upper Boise River Basin Comprehensive State Water Plan.

Upper Boise River Basin Comprehensive State Water Plan. Sections 1 and 2 of S.L. 1993, ch. 415 read: “Section 1. That pursuant to Section 42-1734B(6), Idaho Code, the Comprehensive State Water Plan for the Upper Boise River Basin, adopted by resolution of the Idaho Water Resource Board on December 3, 1992, is herein approved.

“Section 2. The following stream reaches of the Boise River and tributaries above Lucky Peak Dam are designated protected rivers as set forth in the plan adopted by the Water Resource Board; “(1) Boise River (13.2 miles) — The main Boise River from the backwaters of Arrowrock Reservoir to the confluence of the North and Middle Forks of the Boise River is designated as a state Recreational River, and is conditioned to allow alteration of the streambed for construction and maintenance of bridges and culverts. The Board shall prohibit the following activities on the aforementioned reach:

- Construction or expansion of dams or impoundments

- Construction of hydropower projects

- Construction of water diversion works

Dredge or placer mining

Mineral or sand and gravel extraction within the streambed

“(2) Sheep Creek and tributaries (17.8) miles — Sheep Creek, mouth to terminus of perennial water, and the following tributaries are designated as state Natural Rivers:

- South Fork Sheep Creek to terminus of perennial flow

- Devils Creek to terminus of perennial flow

- East Fork Sheep Creek to terminus of perennial flow

“(3) Middle Fork Boise River (14.5 miles) — The Middle Fork Boise River from its confluence with the North Fork Boise River to the mouth of Roaring River is designated as a state Recreational River, and is conditioned to allow alteration of the streambed for construction and maintenance of bridges and culverts. The Board shall prohibit the following activities on the aforementioned reach:

- Construction or expansion of dams or impoundments

- Construction of hydropower projects

- Construction of water diversion works

- Dredge or placer mining

- Mineral or sand and gravel extraction within the streambed

“(4) Roaring River (5.6 miles) — The Roaring River from its confluence with the Middle Fork Boise River to the point where Forest Service Road 255 crosses Roaring River is designated as a state Recreational River, and is conditioned to allow alteration of the streambed for construction and maintenance of bridges and culverts. The Board shall prohibit the following activities on the aforementioned reach:

- Construction or expansion of dams or impoundments

- Construction of hydropower projects

- Construction of water diversion works

- Dredge or placer mining

- Mineral or sand and gravel extraction within the streambed

“(5) Roaring River and tributaries (17.0 miles) — The Roaring River and tributaries from the point where Forest Service Road 255 crosses Roaring River to its headwaters and the following forks are designated as state Natural Rivers.

- East Fork Roaring River to Little Roaring River Lake

- Middle Fork Roaring River to Twin Sisters Lake

“(6) North Fork Boise River (9.1 miles) — The North Fork Boise River from its confluence with the Middle Fork Boise River to the mouth of Rabbit Creek is designated as a state Natural River.

“(7) North Fork Boise River (9.1 miles) — The North Fork Boise River from the mouth of Rabbit Creek to the mouth of Crooked River is designated as a state Recreational River, and is conditioned to allow alterations of the streambed for construction and maintenance of bridges and culverts. The Board shall prohibit the following activities on the aforementioned reach: - Construction or expansion of dams or impoundments

- Construction of hydropower projects

- Construction of water diversion works

- Dredge or placer mining

- Mineral or sand and gravel extraction within the streambed

“(8) North Fork Boise River and tributaries (28.6 miles) — The North Fork Boise River from the mouth of Hunter Creek to the mouth of Johnson Creek and the following tributaries are designated as state Natural Rivers.

- McNutt Creek to terminus of perennial flow

- Taylor Creek to terminus of perennial flow

- McDonald Creek to terminus of perennial flow

- Horsefly Creek to terminus of perennial flow

- Bluejay Creek to terminus of perennial flow

- Lodgepole Creek to terminus of perennial flow

- Bow Creek to terminus of perennial flow

“(9) North Fork Boise River and tributaries (8.4 miles) — The North Fork Boise River from the mouth of Johnson Creek to the boundary of the Sawtooth Wilderness Area and Big Silver Creek, mouth to headwaters, are designated as state Recreational Rivers, and are conditioned to allow alterations of the streambed for the construction and maintenance of bridges and culverts. The Board shall prohibit the following activities on the aforementioned reach:

- Construction or expansion of dams or impoundments

- Construction of hydropower projects

- Construction of water diversion works

- Dredge or placer mining

- Mineral or sand and gravel extraction within the streambed

“(10) Crooked River (10.1 miles) — The Crooked River from its mouth to the mouth of Edna Creek, is designated as a state Recreational River, and is conditioned to allow alterations of the streambed for the construction and maintenance of bridges and culverts; and dredge or placer mining and recreational dredge mining. The Board shall prohibit the following activities on the aforementioned reach:

- Construction or expansion of dams or impoundments

- Construction of hydropower projects

- Construction of water diversion works

- Mineral or sand and gravel extraction within the streambed

“(11) Bear River and tributaries (30.0 miles) — The Bear River from its mouth to terminus of perennial flow and the following tributaries are designated as state Recreational Rivers, and are conditioned to allow alterations of the streambed for the construction and maintenance of bridges and culverts; and dredge or placer mining and recreational dredge mining.

- Bear Creek to terminus of perennial flow

- Rockey Creek to terminus of perennial flow

- Cub Creek to terminus of perennial flow

- South Fork Cub Creek to terminus of perennial flow

- Louise Creek to terminus of perennial flow - Steamboat Creek to terminus of perennial flow

“The Board shall prohibit the following activities on the aforementioned reaches:

- Construction or expansion of dams or impoundments

- Construction of hydropower projects

- Construction of water diversion works

- Mineral or sand and gravel extraction within the streambed

“(12) Johnson Creek and tributaries (7.9 miles) — Johnson Creek from its mouth to the Sawtooth Wilderness Area boundary and the following tributaries are designated as state Natural Rivers.

- Robin Creek to terminus of perennial flow

- Grouse Creek to terminus of perennial flow.”

Snake River, Milner Dam to King Hill, Comprehensive State Water Plan.

Snake River, Milner Dam to King Hill, Comprehensive State Water Plan. Section 1 of S.L. 1994, ch. 108 read: “That pursuant to section 42-1734B(6), Idaho Code, the Comprehensive State Water Plan for the Snake River, Milner Dam to King Hill, Idaho, adopted by resolution of the Idaho Water Resource Board on December 10, 1993, is herein approved.”

Section 2 of S.L. 1994, ch. 108 read: “The following stream reaches of the Snake River are designated protected rivers as set forth in the plan adopted by the Water Resource Board:

“1. Snake River from the downstream project boundary of the Milner Hydroelectric Project, (approximately 700 feet downstream from the Idaho Power Company main Milner powerhouse), River Mile 637, to a point 100 feet downstream of the Murtaugh Bridge ‘Recreational’ (7 miles). Within the segment the Board prohibits construction or expansion of dams or impoundments; construction of hydropower projects; and mineral or sand and gravel extraction. Within the stream channel, alterations would be prohibited except those necessary (1) to maintain and improve existing utilities, roadways, diversion works, fishery enhancement structures, and stream access facilities; (2) for the maintenance of private property; (3) for new diversion works; and (4) for construction of new public access facilities and fishery enhancement structures. Construction of private river access facilities (i.e., boat docks) may be allowed with Idaho Water Resource Board and other regulatory agencies’ approval. New diversion works are limited to pump installations which do not create an obstruction in the river; are to supply water for domestic, commercial, or municipal uses; are visually blended with the surroundings so as to be less noticeable from the river; and are constructed to minimize harm to fish and wildlife.

“2. Snake River 100 feet downstream of the Murtaugh Bridge to a point 100 feet upstream of the Hansen Bridge as ‘Natural’ (9.5 miles). Within the segment the Board prohibits construction or expansion of dams or impoundments; construction of hydropower projects; construction of water diversion works; dredge or placer mining; alterations of the stream bed; and mineral or sand and gravel extraction within the stream bed.

“3. Snake River 100 feet upstream of Hansen Bridge to the upstream project boundary of Twin Falls Hydroelectric Project [River Mile 619.5, the east boundary of Lot 5, Section 10, T10S, R18E, B.M.] ‘Recreational’ (2 miles). Within the segment, the Board prohibits construction or expansion of dams or impoundments; construction of hydropower projects; and mineral or sand and gravel extraction. Within the stream channel, alterations would be prohibited except those necessary (1) to maintain and improve existing utilities, roadways, diversion works, fishery enhancement structures, and stream access facilities; (2) for the maintenance of private property; (3) for new diversion works; and (4) for construction of new public access facilities and fishery enhancement structures. Construction of private river access facilities (i.e., boat docks) may be allowed with Idaho Water Resource Board and other regulatory agencies’ approval. New diversion works are limited to pump installations that do not create an obstruction in the river; are to supply water for domestic, commercial, or municipal uses; are visually blended with the surroundings so as to be less noticeable from the river; and are constructed to minimize harm to fish and wildlife. “4. Snake River from the downstream project boundary of the Twin Falls Hydroelectric Project [River Mile 617] to the confluence of the westerly spring flow from the Devil’s Corral spring area [River Mile 616] ‘Recreational’ (1 mile). State protection of this segment shall in no way impede relicensing of the Shoshone Falls Hydroelectric Project, or an expansion of the Shoshone Falls Hydroelectric Project boundary that would not result in any change in the size of the impoundment or in reservoir elevation. Within the segment the Board prohibits construction or expansion of dams or impoundments; construction of hydropower projects; and mineral or sand and gravel extraction. Within the stream channel, alterations would be prohibited except those necessary (1) to maintain and improve existing utilities, roadways, diversion works, fishery enhancement structures, and stream access facilities; (2) for the maintenance of private property; (3) for new diversion works; and (4) for construction of new public access facilities and fishery enhancement structures. Construction of private river access facilities (i.e., boat docks) may be allowed with Idaho Water Resource Board and other regulatory agencies’ approval. New diversion works are limited to pump installations which do not create an obstruction in the river; are to supply water for domestic, commercial, or municipal uses; are visually blended with the surroundings so as to be less noticeable from the river; and are constructed to minimize harm to fish and wildlife.

“Within the segment the Board prohibits construction or expansion of dams or impoundments; construction of hydropower projects; and mineral or sand and gravel extraction. Within the stream channel, alterations would be prohibited except those necessary (1) to maintain and improve existing utilities, roadways, diversion works, fishery enhancement structures, and stream access facilities; (2) for the maintenance of private property; (3) for new diversion works; and (4) for construction of new public access facilities and fishery enhancement structures. Construction of private river access facilities (i.e., boat docks) may be allowed with Idaho Water Resource Board and other regulatory agencies’ approval. New diversion works are limited to pump installations that do not create an obstruction in the river; are to supply water for domestic, commercial, or municipal uses; are visually blended with the surroundings so as to be less noticeable from the river; and are constructed to minimize harm to fish and wildlife.

“6. Snake River from the downstream project boundary of the Lower Salmon Falls Hydroelectric Project [River Mile 573] to the upstream project boundary of the Bliss Hydroelectric Project [River Mile 565.5] ‘Recreational’ (8 miles). Within the segment the Board prohibits construction or expansion of dams or impoundments; construction of hydropower projects; and mineral or sand and gravel extraction. Within the stream channel, alterations would be prohibited except those necessary (1) to maintain and improve existing utilities, roadways, diversion works, fishery enhancement structures, and stream access facilities; (2) for the maintenance of private property; (3) for new diversion works; and (4) for construction of new public access facilities and fishery enhancement structures. Construction of private river access facilities (i.e., boat docks) may be allowed with Idaho Water Resource Board and other regulatory agencies’ approval. New diversion works are limited to pump installations that do not create an obstruction in the river; are to supply water for domestic, commercial, or municipal uses; are visually blended with the surroundings so as to be less noticeable from the river; and are constructed to minimize harm to fish and wildlife. “7. Snake River from the downstream project boundary of the Bliss Hydroelectric Project [River Mile 560] to the confluence of Clover Creek ‘Recreational’ (12 miles). Within the segment the Board prohibits construction or expansion of dams or impoundments; construction of hydropower projects; and mineral or sand and gravel extraction. Within the stream channel, alterations would be prohibited except those necessary (1) to maintain and improve existing utilities, roadways, diversion works, fishery enhancement structures, and stream access facilities; (2) for the maintenance of private property; (3) for new diversion works; and (4) for construction of new public access facilities and fishery enhancement structures. Construction of private river access facilities (i.e., boat docks) may be allowed with Idaho Water Resource Board and other regulatory agencies’ approval. New diversion works are limited to pump installations that do not create an obstruction in the river; are to supply water for domestic, commercial, or municipal uses; are visually blended with the surroundings so as to be less noticeable from the river; and are constructed to minimize harm to fish and wildlife.”

Priest River Basin Comprehensive State Water Plan Amendment.

Priest River Basin Comprehensive State Water Plan Amendment. Section 1 of S.L. 1996, ch. 299 read: “That pursuant to Section 42-1734B(6), Idaho Code, the amended Comprehensive State Water Plan for the Priest River Basin, adopted by resolution of the Idaho Water Resource Board on November 9, 1995, be, and the same is hereby ratified and approved. In accordance with Section 42-1734A, Idaho Code, the amended basin plan includes additional protected river reach designations summarized as follows:

“(1) Lion Creek, headwaters to mouth, as a recreational river;

“(2) Two-mouth Creek, headwaters to mouth, as a recreational river; and

“(3) Indian Creek, headwaters to mouth, as a recreational river.”

Section 2 of S.L. 1996, ch. 299 read: “An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval.” Approved March 18, 1996.

Eastern Snake Plain Aquifer.

“2. The Idaho Water Resource Board shall prepare and submit to the Legislature for approval, a funding mechanism for implementation of Phase I of the Comprehensive Aquifer Management Plan for the Eastern Snake Plain Aquifer. The funding mechanism shall be consistent with the funding participation targets set forth in the ESPA CAMP and shall be developed with the assistance of the ESPA CAMP Implementation Committee. The Idaho Water Resource Board shall, with the assistance of the Implementation Committee, prepare and submit to the Legislature for approval any subsequent proposed changes to the ESPA CAMP. Implementation plans should seek to optimize outcomes for fish and wildlife, recreation, hydropower, municipalities, irrigation, aquaculture and other uses. “3. Implementation of Phase I of the Comprehensive Aquifer Management Plan for the Eastern Snake Plain Aquifer is subject to legislative approval of a funding mechanism, which shall be consistent with the funding participation targets set forth in the ESPA CAMP. The act does not constitute an obligation of state funds and any state funding shall be subject to the availability of funds. State agencies may use previously appropriated funds to begin implementation of Phase I.

“5. An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval.” Approved April 23, 2009.

OPINIONS OF ATTORNEY GENERAL

Change.

The term “change” in Idaho Const., Art XV, § 7 only refers to deletions or revisions to the existing state water plan and since the comprehensive state plan by the Idaho water resource board was an addition of a new component to the existing state water plan, it was not a change under Idaho Const., Art. XV, § 7.OAG 91-5.

Payette River Plan.

Idaho Const., Art. XV, § 7 did not prohibit legislative action on the Payette River plan during the 1991 legislative session; while subsection (6) of this section provides for one method of legislative review of such river plans, it does not preclude the legislature from enacting a specific law approving, amending or rejecting the comprehensive state plan.OAG 91-5.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the 1984 Swan Falls Settlement, Clive J. Strong & Michael C. Orr. 52 Idaho L. Rev. 223 (2016).

§ 42-1734C. Status of comprehensive state water plan before federal agencies.

The comprehensive state water plan required by this chapter shall be submitted to the federal energy regulatory commission, and the pacific northwest electric power and conservation planning council, and any other federal agencies as the state water plan for the conservation, development, management and optimum use of the state of Idaho’s water resource.

History.

I.C.,§ 42-1734C, as added by 1988, ch. 370, § 5, p. 1090.

STATUTORY NOTES

Compiler’s Notes.

For more on the federal energy regulatory commission, see http://www.ferc.gov .

The pacific northwest electric power and conservation planning council is now the northwest power and conservation council. For more on the northwest power and conservation council, see http://www.nwcouncil.org .

§ 42-1734D. Designation of interim protected rivers.

Prior to the adoption of a comprehensive plan for a waterway, the board may designate a waterway as an interim protected river. Any state agency may petition the board to designate a waterway as an interim protected river. The board shall promulgate procedural rules for designation of interim protected rivers. The rules shall provide adequate notice to interested parties of any petitions filed or actions contemplated pursuant to this act.
The board shall determine whether the nominated waterway merits designation as an interim protected river. The board shall accept or reject a nomination within six (6) months after it is filed. There shall be no review of any board decision rejecting or accepting a nomination for an interim protected river. Designation of a waterway as an interim protected river shall be based upon a determination that:
1. It is probable that the waterway would be designated a protected river in the comprehensive state water plan; and
2. Interim protected river status is necessary to protect the values that would support such waterway’s designation as a protected river in a comprehensive state water plan.
In designating a waterway for interim protected river status, the board shall indicate which of the activities listed in subsection 42-1734A(5), Idaho Code, shall be prohibited.
Interim protected river status shall remain in effect until the earliest of:
1. The adoption of a comprehensive state water plan for the waterway designated as an interim protected river;
2. Two (2) years following the designation of an interim protected river unless extended by law;
3. The revocation of a waterway’s interim protected river status by law.
Any person may petition the board for a determination that a particular proposed action or project will not significantly impair the values supporting a waterway’s designation as an interim protected river. The board shall consider among other things environmental impact statements, technical studies and any other relevant comments or recommendations prepared by the petitioner for use before other state or federal agencies. The board may also consider any other relevant information. If the board determines that the proposed action or project will not significantly impair the values supporting a waterway’s designation as a protected river, then this section shall not apply to such action or project, except that the board, after consultation with relevant state agencies, may impose appropriate conditions on such action or project. An aggrieved party may seek judicial review of the board’s decision pursuant to chapter 52, title 67, Idaho Code.
If a waterway is designated as an interim protected river, then the board shall proceed to prepare a comprehensive state water plan for the waterway. The board shall in preparing the state comprehensive water plan for the waterway consider, after review of all relevant factors contained in section 42-1734A, Idaho Code, whether the designation should continue or whether modification of the designation is warranted.

History.

(7) If the designation of a waterway as an interim protected river is either revoked by law, or terminated as provided in this section, then the waterway shall not be eligible for designation as an interim protected river for a period of two (2) years following the revocation or termination of its interim protected river status. History.

I.C.,§ 42-1734D, as added by 1988, ch. 370, § 5, p. 1090; am. 1993, ch. 216, § 37, p. 587.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” in the last sentence in subsection (1) refer to S.L. 1988, chapter 370, which is compiled as§§ 42-1730, 42-1731, and 42-1734 to 42-1734I.

Section 1 of S.L. 1991, ch. 13 provided that “Notwithstanding any other provision of law of the contrary, the Water Resource Board shall designate the Snake River from Section 5, Township 11 South, Range 20 East, B.M. to King Hill as an interim protected river pursuant to Section 42-1734D, Idaho Code. The water resource board shall determine which of the activities listed in subsection (5) of Section 42-1734A, Idaho Code, shall be prohibited.”

Sections 1 and 2 of S.L. 1992, ch. 340 read: “Section 1. Notwithstanding any other provisions of law to the contrary, the Water Resource Board shall designate the following stretches or reaches in the Henrys Fork Basin as an interim protected river pursuant to Section 42-1734D, Idaho Code. The Water Resource Board shall determine which of the activities listed in subsection (5) of Section 42-1734A, Idaho Code, are prohibited. The aforementioned stretches or reaches are summarized as follows:

“(1) Henrys Fork of the Snake River from its point of origin at Henrys Lake to the point of its confluence with the backwaters of Ashton Reservoir.

“(2) Warm River: Partridge Creek to Warm River Campground.

“(3) Falls River: Idaho border to Kirkham bridge.

“(4) Bitch Creek: Idaho border to mouth.

“(5) Teton River: Trail Creek to the backwaters of Teton Dam.

“Interim protected river status provided by this act shall be terminated not later than ten (10) days following the end of the regular legislative session in 1994.

“Section 2. An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval.” Approved April 14, 1992.

Effective Dates.

Section 2 of S.L. 1991, ch. 13 declared an emergency. Approved February 22, 1991.

§ 42-1734E. Remedies.

The attorney general, at the request of the board, shall commence a civil action to enjoin any person violating any provision of this chapter and to recover actual damages in that amount required to restore a protected river and its riparian area to a condition reasonably comparable to that existing prior to the violation.
It shall be the duty of the attorney general to institute and prosecute all enforcement actions provided for in this chapter.

History.

I.C.,§ 42-1734E, as added by 1988, ch. 370, § 5, p. 1090.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

§ 42-1734F. Rights not affected.

No provision of this chapter, or any rules or regulations promulgated pursuant to this chapter, shall in any way limit, restrict, or conflict with approved applications for the appropriation of water or with vested property rights existing on the date a waterway is designated for protected river status or interim protected river status. For the purpose of this chapter, nonvested rights shall include, but not be limited to, pending applications for state mining permits or mineral leases, and pending applications for the appropriation of water.
No provision of this chapter, or any rules or regulations promulgated pursuant to this chapter shall bar a water user or his agent from cleaning, maintaining or replacing a water diversion structure existing on or before the date a river is designated as protected. A water user or his agent may remove any obstructions from the stream channel, if such obstruction interferes with the delivery of, or use of, water under any existing water right. The provisions of this section do not relieve a person from complying with any other applicable laws.
Nothing in this act shall prevent or restrict the relicensing of existing hydropower projects that have been previously licensed by the federal energy regulatory commission and which have generated electricity. Any designation of waterways as interim protected rivers or protected rivers shall not affect the operation or relicensing, including but not limited to the expansion of capacity which does not enlarge existing boundaries or project impoundments of any hydropower project existing and that has been previously licensed by the federal energy regulatory commission and which have generated electricity as of the date of the designation.

History.

I.C.,§ 42-1734F, as added by 1988, ch. 370, § 5, p. 1090.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” near the beginning of subsection (3) refer to S.L. 1988, chapter 370, which is compiled as§§ 42-1730, 42-1731, and 42-1734 to 42-1734I.

For more on the federal energy regulatory commission, see http://www.ferc.gov .

§ 42-1734G. Water rights.

No provisions of this chapter, or any rules or regulations promulgated pursuant to this chapter, shall be construed to establish a water right. Any water rights necessary to fulfill the purposes of this chapter shall be obtained pursuant to the provision of chapter 2 or chapter 15, title 42, Idaho Code.

History.

I.C.,§ 42-1734G, as added by 1988, ch. 370, § 5, p. 1090.

§ 42-1734H. Designation of particular rivers as interim protected rivers.

The board shall designate the following waterways as interim protected rivers pursuant to section 42-1734D, Idaho Code:
1. Priest River, from the Canadian Border to the confluence of Priest Lake;
2. South Fork of the Boise River, from Anderson Ranch Dam to Neal Bridge;
3. Snake River, from Section 5, Township 11 South, Range 20 East, B.M. to King Hill;
4. The following waterways within the Payette River Basin:
  1. North Fork of the Payette River, from Cabarton Bridge to Banks;
  2. South Fork of the Payette River, from the Sawtooth Wilderness Boundary to Banks;
  3. Main Payette River, from Banks to Black Canyon Dam; and
5. Henry’s Fork of the Snake River from its point of origin at Henry’s Lake to the point of its confluence with the backwaters of Ashton Reservoir.
The board shall determine which of the activities listed in subsection (5) of section 42-1734A, Idaho Code, shall be prohibited.

History.

I.C.,§ 42-1734H, as added by 1988, ch. 370, § 5, p. 1090.

§ 42-1734I. Designation under federal law.

Designation of a waterway as a protected river pursuant to this chapter shall not be a basis for seeking inclusion of such waterway in the national wild and scenic rivers system pursuant to 16, United States Code section 1273(a)(ii) unless the act designating the waterway as a protected river specifically requests the governor to seek inclusion of the waterway in the national wild and scenic rivers system.

History.

I.C.,§ 42-1734I, as added by 1988, ch. 370, § 5, p. 1090.

§ 42-1735. Appointment of counsel — Hearing officers.

The board may appoint legal counsel or may retain private counsel independent of the counsel appointed by the director of the department.

The board may utilize hearing officers during any hearing processes which are assigned to the board by law.

History.

1965, ch. 320, § 5, p. 901; am. 1974, ch. 20, § 24, p. 533.

§ 42-1736. Legislative review. [Repealed.]

Repealed by S.L. 2014, ch. 97, § 28, effective July 1, 2014.

History.

I.C.,§ 42-1736, as added by 1977, ch. 117, § 1, p. 252.

STATUTORY NOTES

Prior Laws.

Another former§ 42-1736, which comprised S.L. 1965, ch. 320, § 6, p. 901, was repealed by S.L. 1974, ch. 20, § 25.

CASE NOTES

Constitutionality.

This section requiring legislative approval of the state water plan is unconstitutional since it purports to authorize the legislature to perform functions constitutionally assigned to the water resources board, but even if this section had authorized legislative action which was not in conflict with Idaho Const., Art. XV, § 7, it could still have no legal effect because it provides for legislative action on the state water plan by means of a concurrent resolution. To the extent that Idaho Const., Art. XV, § 7 authorizes the legislature to influence the operation of the water resources board, it does so only as to “such laws as may be prescribed by the legislature”; legislative action by resolution is not a “law” in that context. Idaho Power Co. v. State, 104 Idaho 570, 661 P.2d 736 (1983).

§ 42-1736A. Water resource policy. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised I.C.,§ 42-1736A, as added by 1978, ch. 345, § 1, p. 884, was repealed by S.L. 1985, ch. 204, § 2.

§ 42-1736B. Water resource policy actions.

All future filings, permits and decrees on the unappropriated waters of this state shall be determined with respect to the effect such filings, permits and decrees will have on the minimum daily flow of the affected stream or river, or on the maintenance level of the affected lake or reservoir.
All water plans and development projects proposed by the water resource board shall be subject to review and approval of the legislature, except that those projects funded from the water resource board revolving development account [fund] of less than five hundred thousand dollars ($500,000) need not have prior legislative approval.
In further recognition of the authority granted by law to the water resource board by the provisions of section 42-1734, Idaho Code, and in further recognition of the right of the legislature to review and approve the actions of the water resource board, the water resource board is specifically directed:
1. To inventory all of the unappropriated waters of this state;
2. To recommend to the legislature appropriations in trust for the people of Idaho for specific purposes;
3. To develop a list of specific proposals for storage of any unappropriated waters of this state, which proposals shall show location, costs, and proposed uses and benefits;
4. To take all necessary actions to assure that Idaho citizens shall not be denied the right to divert and appropriate to beneficial uses, under the provisions of article XV of the constitution of the state of Idaho, the unappropriated waters of this state.

History.

I.C.,§ 42-1736B, as added by 1978, ch. 345, § 2, p. 884.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion in subsection (2) was added by the compiler to correct the name of the referenced fund. See§ 42-1752.

House Concurrent Resolution No. 48 (H.C.R. No. 48, S.L. 1978, p. 1003) reads as follows:

“Be It Resolved by the Legislature of the State of Idaho:

“WHEREAS, Section 7 of Article XV, of the Constitution of the State of Idaho empowers the Idaho Water Resource Board to formulate and implement a State Water Plan for optimum development of water resources in the public interest; and

“WHEREAS, Section 42-1731 [42-1730], Idaho Code, provides that the optimum use of the water resources of Idaho, requires the formulation of a coordinated, integrated, multiple use water resource policy and the development of a plan to activate this policy as rapidly as possible; and “WHEREAS, the Idaho Water Resource Board, by the authority of Section 42-1734, Idaho Code, shall formulate a program for use of all unappropriated water resources of this State, based upon studies and after public hearings, in affected areas at which all interested parties shall be given the opportunity to appear; and

“WHEREAS, the State Water Plan was adopted by the Idaho Water Resource Board pursuant to Section 42-1734, Idaho Code; and

“WHEREAS, Section 42-1736, Idaho Code, provides that the State Water Plan shall not become effective until approved by the Legislature; and

“WHEREAS, it is the finding of the Legislature that the State Water Plan as amended by this resolution complies with the intent of the Legislature.

“NOW, THEREFORE, BE IT RESOLVED by the members of the Second Regular Session of the Forty-fourth Idaho Legislature, the House of Representatives and the Senate concurring therein, that the State Water Plan as adopted by the Idaho Water Resource Board and submitted to the Legislature is hereby approved by the Legislature pursuant to Section 42-1736, Idaho Code, with the following changes:

POLICY NO. 1: PROTECTION OF EXISTING WATER RIGHTS

The State Water Plan shall be a guide concerning the uses of water within the State of Idaho. Water rights and the administration of water rights shall be governed by statute. Section 42-203, Idaho Code, should be amended to provide the following: (1) protection for all existing water. Nothing in this plan shall adversely affect water rights established and vested under the Constitution and laws of Idaho; (2) all new water uses, both consumptive and non-consumptive such as irrigation, municipal, industrial, power, mining, fish and wildlife, recreation, aquatic life, and water quality will be judged beneficial uses subject to Article XV, Section 3, of the state Constitution; (3) if conflicts occur between meeting new water uses, the approval or denial of the application shall consider the local public interest as defined by statute.

POLICY NO. 2: NATURE OF USE OF WATER RIGHTS

Water users should be allowed to change the nature of use of their own water rights for use within the State of Idaho provided other water rights are not injured thereby. Section 42-222 should be amended to allow existing water right holders to make such changes provided the change is not in conflict with the state water plan adopted by the Idaho Water Resource Board as approved by the legislature.

POLICY NO. 3: CONSOLIDATE STATE WATER QUANTITY AND QUALITY PLANNING AND ADMINISTRATION

The state programs of water quantity and water quality planning and administration should be consolidated in the Department of Water Resources. The Idaho Code should be amended to implement this policy.

POLICY NO. 4: UNRECORDED WATER RIGHTS

Claims except for domestic uses should be submitted on all existing unrecorded water rights within the State of Idaho by June 20, 1983. Legislation implementing this policy should provide that failure to file such a claim by the prescribed filing date shall be grounds for instituting an action for forfeiture of the claimed right.

POLICY NO. 5: FLOOD PRONE AREA IDENTIFICATION

The Department of Water Resources should identify flood prone areas throughout the state. The department shall utilize all previous and current flood prone area studies and shall make the information available for public use. The flood prone area identified shall be based on flooding from the 100 year flood history. POLICY NO. 6: INSTREAM FLOWS

Water rights should be granted for instream flow purposes. The legislation authorizing this policy should recognize and protect existing water rights and priorities of all established rights and delegate responsibilities for determining flows and administrative authority to the Department of Water Resources. The legislation should also direct that the Idaho Water Resource Board shall be the only applicant for instream flow. All applications by the Water Resource Board shall be subject to the approval of the legislature.

POLICY NO. 7: STATE NATURAL AND RECREATIONAL SYSTEM

A State Natural and Recreational River System should be established and designed to fit the desires of the citizens of Idaho. Legislation implementing this policy should permit the protection of the unique features that exist on each of the various rivers bordered by public lands within the state and should provide the necessary authorization and adequate funding to state and local government to protect such rivers and related lands for recreational, scenic and natural values while still allowing the widest possible opportunity for use by private interests. Funds would be provided from the Water Management Fund created under Policy 31 for this purpose.

POLICY NO. 10: PROTECTION OF LAKE AND RESERVOIR SHORELANDS

Local units of government should prepare comprehensive plans and adopt zoning standards for the management of lake and reservoir shorelands to protect the water resources and its uses. Funds would be provided from the Water Management Fund created under Policy 31 for this purpose.

POLICY NO. 11: WATER SUPPLY BANK

A water supply bank should be established for the purpose of acquiring water rights or water entitlements, provided other water rights are not injured, from willing sellers for reallocation by sale or lease to other new or existing uses within the State of Idaho. Legislation authorizing the water supply bank should also provide for the bank to be self-financing in the long run with initial funding to be provided by creation of a Water Management Fund as provided for in Policy 31.

POLICY NO. 12: CONSERVANCY DISTRICTS

Water Conservancy Districts should be established where needed. Legislation implementing this policy should provide for an equitable funding procedure to spread costs among all beneficiaries.

POLICY NO. 13: ENERGY PLAN

A State energy plan should be prepared. The Department of Water Resources should contribute the water related components to such a plan. Legislation authorizing this policy should also provide funding through the Energy Development and Study Fund for this purpose as provided in Policy 31.

POLICY NO. 14: WATER CLAIMS BY INDIAN TRIBES

Claims to water by Idaho Indian tribes should be identified by June 30, 1983.

POLICY NO. 15: FEDERAL WATER CLAIMS

Claims to water by the federal government should be identified by June 30, 1983.

POLICY NO. 16: FEDERAL RESERVOIRS WATER ALLOCATION

An agreement should be established with federal agencies to allow review by the Idaho Water Resource Board of any proposed allocation of water in excess of 500 acre-feet annually from federal reservoirs. POLICY NO. 17: STATE ADMINISTRATION OF FEDERAL PROGRAMS

Federal programs dealing with water should be administered by the State when in the state’s interest to do so.

POLICY NO. 18: COMBINE APPLICATIONS FOR WATER RESOURCES

Existing state statutes should be reviewed and amended so that applicants may complete a single application form to request approval from necessary state authorities to develop or utilize the state’s water and related land resources.

POLICY NO. 19: LEGISLATIVE COMMITTEE

A Legislative Committee on Water Resources should continue to work with the Idaho Water Resource Board in implementing the State Water Plan.

POLICY NO. 20: LAND DEVELOPMENT POLICY

Where the supply of water from a particular water source is limited, it is preferable to develop new lands in Idaho of higher agricultural productivity over those of a lower productivity providing existing rights are protected and water is not transferred between water basins within the state.

POLICY NO. 21: PROTECTION OF POTENTIAL RESERVOIR SITES

Potential reservoir sites should be protected against significant land use change. The legislation implementing this policy should recognize rights of existing land owners and should direct the state to acquire lands for reservoir sites as they become available for sale. Reservoir sites given this protection should be re-evaluated on ten-year intervals. Funds would be provided from the Water Management Fund created under Policy 31 for this purpose.

Snake River Basin

Upper Snake

Palisades

Snake River

Lynn Crandall

Snake River

American Falls

(Exist.)

Snake River

Clear Lakes

Snake River

Thousand Springs

Snake River

Shoestring

Snake River

Warm River

Henrys Fork

Driggs

Teton River

Medicine Lodge

Medicine

Lodge

Creek

Birch Creek

Boulder Flats

Big Wood

River

Bliss

Big Wood

River

Southwest Idaho

Grindstone Butte

Snake River

(off-stream)

Sailor Creek

Snake River

(off-stream)

Guffey (High

Alternative)

Snake River

Gold Fork

Payette River

Twin Springs

Boise River

Lost Valley (Exist.)

Lost Valley

Creek

Tamarack

Weiser River

Goodrich

Weiser River

Monday Gulch

Little Weiser

River

Lucky Peak (Exist.)

Boise River

Lower Snake

Challis

Challis Creek

Panhandle Basins

Low Katka

Kootenai River

Bear River Basin

Caribou

Bear River

Oneida Narrows

Bear River

Plymouth

Malad River

Thomas Fork

POLICY NO. 22: EVALUATE FLOOD CONTROL LEVEES

The Department of Water Resources should be directed to inventory, identify, and evaluate the adequacy of existing flood control levees. Idaho Code, Section 42-1708 (repealed), should be amended to implement this policy.

POLICY NO. 23: ASSIST INDIAN TRIBES IN WATER RESOURCES IDENTIFICATION

The Idaho Water Resource Board offers to assist Indian tribal representatives in the identification, evaluation and tabulation of water resources on Indian lands.

POLICY NO. 25: REHABILITATION PROGRAM

A program should be established to identify and evaluate rehabilitation of abandoned mineral extraction and by-product storage areas and other abandoned projects which currently or potentially affect the yield or quality of the state’s watersheds, streams and stream channels.

POLICY NO. 26: MONITOR RADIOACTIVE WASTE DISPOSAL

A program should be established by the State of Idaho to monitor and regulate radioactive waste disposal at the U.S. Energy Research and Development Administration’s Idaho National Engineering Laboratory, and other areas as may be designated. POLICY NO. 27: FISH AND GAME PLAN

A program should be established within the Idaho Department of Fish and Game to prepare and adopt objectives and management criteria for fish, wildlife and all other aquatic resources for all principal streams and wet-lands in the state.

POLICY NO. 28: TAILING PONDS

Encourage the mining industry to work with federal and state agencies to achieve uniform safety standards for the construction of tailing ponds and other similar mine waste storage facilities. If agreement cannot be reached under existing laws and policies then legislation should be adopted placing tailing ponds and other similar mine waste storage facilities under jurisdiction of the Dam Safety Act. (I.C. 42-1714 et seq.).

POLICY NO. 29: PLANNING PROGRAM

A Water Resource Project Feasibility Planning Program should be established to conduct studies required to implement the State Water Plan. Funds would be provided from the Water Management Fund as provided in Policy 31.

POLICY NO. 30: WATER RESOURCES RESEARCH PROGRAM

Research should be conducted on important water resource topics to augment the State Water Plan.

POLICY NO. 31: FUNDING PROGRAMS

The State of Idaho should establish a major water resource funding program to supplement private and federal monies to develop, preserve, conserve and restore the water and related land resources of Idaho and to implement the State Water Plan. The recommended funds are Water Management Fund, Rehabilitation Fund and Energy Development and Study Fund as approved by the legislature.

POLICY NO. 32: SNAKE RIVER BASIN

The available and unappropriated waters of the Snake River Basin are allocated to satisfy existing uses, meet needs for future growth and development, and protect the environment. The allocations recognize and protect existing water uses and rights. The water allocations are made by large regions to allow the widest possible discretion in application and it is the policy of the State of Idaho to augment, maintain, enhance and increase available, usable water by additional upstream, off stream and aquifer storage.

It is legislative intent that main stem Snake River flows will be protected against further depletions and preserved to provide the following average daily flows at the following U.S. Geological Survey stream gaging stations.

Milner

0 cfs

Murphy

3,300 cfs

Weiser

4,750 cfs

Studies indicate that sufficient water exists in excess of those flows to provide for additional uses if water conserving and storage facilities are constructed. Water is allocated for electric energy. Additional hydro-electric power sites remain on streams within the Snake River Basin. Wherever feasible these should be developed as part of multi-purpose projects. Future electric energy requirements will be largely supplied from thermal plants. The plan provides for 170,000 acre-feet beyond August 1975 levels for consumptive use in cooling thermal power plants. The depletion is distributed as follows: Upper Snake — 75,000 acre-feet; Southwest Idaho — 30,000 acre-feet. In addition, flows in the Snake River will be stabilized for the hydro-power generating capability of the river.

POLICY NO. 33: PANHANDLE BASINS

The available and unappropriated waters of the Spokane, Pend Oreille-Clark Fork and Kootenai river basins are allocated to satisfy existing and potential needs for economic development and environmental quality. This allocation recognizes and protects all existing and potential water uses and private and public rights.

Water is allocated for electric energy. Additional hydro-electric power sites remain on streams within the Panhandle River Basins. Wherever feasible these should be developed as part of multi-purpose projects. Future electrical energy requirements will be largely supplied from thermal plants. The plan provides for 18,000 acre-feet of depletion from the Pend Oreille-Clark Fork River system in the Panhandle Basins for evaporative cooling of thermal power plants.

POLICY NO. 34: BEAR RIVER BASIN

Management of the water resources in the Bear River Basin will continue to be directed by state statute and the Bear River Compact.

POLICY NO. 35: RIVER MANAGEMENT CRITERIA

The following rivers are recognized for their many uses. The Idaho Water Resource Board will cooperate with and assist local people in preparing management criteria for rivers to achieve maximum benefits for all who use them.

St. Joe
Priest
Moyie
Salmon
Bruneau
Owyhee
Snake

POLICY NO. 37: SOUTH FORK COEUR D’ALENE RIVER REHABILITATION

The state of Idaho should sponsor a joint federal-state-private stream channel stabilization and revegetation project(s) in the South Fork Coeur d’Alene River drainage. Funds should be provided from the Rehabilitation Fund, discussed in Policy 31 for this project(s).

“BE IT FURTHER RESOLVED that the Legislature directs the Idaho Water Resource Board to revise the State Water Plan to conform in all respects with the policies hereby approved and to publish the plan and distribute it generally throughout the state.”

Adopted by the House February 23, 1978.

Adopted by the Senate March 13, 1978.

CASE NOTES

Constitutionality.

The provision, in subsection (2) of this section, requiring legislative approval of water plans, unconstitutionally infringes on the water resource board’s authority to determine the state water plan, and is therefore invalid. Idaho Power Co. v. State, 104 Idaho 570, 661 P.2d 736 (1983).

§ 42-1737. Board approval — Criteria — Hearings — Appeals — Defining a misdemeanor — Injunctions.

All project proposals involving the impoundment of water in a reservoir with an active storage capacity in excess of ten thousand (10,000) acre-feet, or the diversion of natural flow water appropriated pursuant to section 42-234, Idaho Code, for a managed recharge project in excess of ten thousand (10,000) acre-feet on an average annual basis, shall be submitted to the board for its approval or disapproval. No construction shall be commenced on any such project nor shall any diversion be permitted prior to receipt of board approval as herein provided and the board may institute injunctive proceedings to halt such construction or diversion. In the event a project is disapproved, this fact shall be certified by the board to the director of the department and such certification shall constitute the petition for cancelation of permit required by section 42-302, Idaho Code, and, pursuant to such certification, the procedure for cancelation of permit issued for such project shall be carried forward by said director.
In determining whether a project proposal shall be approved, or disapproved, the board shall be guided by the following criteria:
1. Conserving the highest use of the water for all purposes.
2. The maximum economic development of the waters involved.
3. The control of the waters of this state for all beneficial purposes, including drainage, sanitation and flood control.
4. That sufficient water is available for appropriation for beneficial use.
5. The prevention of wasteful, uneconomic, impracticable or unreasonable use of the waters involved.
6. That all vested and inchoate rights to the waters of this state or to the use thereof have been protected by the issuance of a permit for the project by the director of the department.
7. The state water plan and water policy formulated under other laws of this state.
The board shall by regulation, establish procedures for notice and hearing on those project proposals which must be submitted to the board and may authorize hearings by hearing officers. The board or its hearing officer shall have power to administer oaths and to require the attendance of such witnesses and the production of such books, records and papers as it may desire at any hearing and for that purpose the board may issue a subpoena for any witnesses or a subpoena duces tecum to compel the production of any books, records or papers which shall be served and returned in the same manner as a subpoena in a civil case. In case of any disobedience or neglect to obey a subpoena or subpoena duces tecum it shall be the duty of the district court in any county of this state in which such disobedience, neglect or refusal occurs, or any judge thereof, on application by the board, to compel obedience by proceedings for contempt as in the case of a subpoena issued by a regularly constituted court. The sponsor of a project who appears before the board shall have similar powers and shall have the right to be represented by counsel. If the sponsor does not appear at the appointed time, and his absence is without sufficient cause, the board shall have the right to proceed in his absence or may consider absence to constitute an admission of facts contrary to the position of the sponsor. The board shall make findings of fact and conclusions of law leading to its approval or disapproval. (d) Any sponsor of a project which has been disapproved shall have the right to have the proceedings of the board reviewed by the district court in the county of his residence. With the exception that judicial review may be had by the district court of the county of the residence of the sponsor, such judicial review shall be accomplished in accordance with the provisions of chapter 52, title 67, Idaho Code.

History.

1965, ch. 319, § 2, p. 898; am. 1981, ch. 90, § 2, p. 125; am. 2005, ch. 362, § 3, p. 1151.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” near the beginning of the section refer to S.L. 1965, chapter 319, which is codified as§§ 42-1739 to 42-1749.

Legislative Intent.

Sections 1 and 2 of S.L. 2005, ch. 362 provided “Section 1. Legislative Findings. (1) Water users relying upon surface water and ground water supplies in many parts of Idaho, including the Snake River Basin, which encompasses a large portion of the state, are presently experiencing or may experience water shortages due to a combination of factors, including reduced aquifer recharge due to changes in surface water irrigation practices, increased ground water withdrawals, and prolonged drought conditions.

“(2) It is essential that the state provide a reasonable degree of certainty and assistance in water resource management, water project funding, and water rights administration for the benefit and safeguarding of its citizens and for the benefit and safeguarding of the state and local economies that rely upon the diversion and use of water for their viability.

“(3) The legislature is determined to assist in achieving long-term stability in water supplies for the well-being of our citizens by encouraging the Water Resource Board to utilize its constitutional and statutory authorities to finance water projects designed both to enhance available water supplies and reduce demands upon our water resources in a manner that is protective of individual rights and promotes the best interests of our citizens.

Effective Dates.

Section 8 of S.L. 2005, ch. 362 declared an emergency. Approved April 12, 2005.

1965, ch. 319, § 5, p. 898.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” in three places in this section refer to S.L. 1965, chapter 319, which is codified as§§ 42-1739 to 42-1749.

§ 42-1744. Issuance.

Such bonds shall be signed on behalf of the board by the chairman of the board and shall be attested by the secretary of the board, one of which signatures may be a facsimile signature, and shall have the seal or facsimile seal of the board impressed or imprinted thereon. All interest coupons attached thereto may be signed with the facsimile signatures of such officials. Such bonds shall be sold in the manner and at such price as the board shall deem advisable, either at public or private sale.

History.

1965, ch. 319, § 6, p. 898.

§ 42-1745. Warrants.

The board may also issue revenue warrants for the same purposes for which they may issue revenue bonds and the provisions of this act relating to the terms, conditions, covenants, issuance and sale of revenue bonds shall be applicable to such revenue warrants.

History.

1965, ch. 319, § 7, p. 898.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” near the middle of the section refer to S.L. 1965, chapter 319, which is codified as§§ 42-1739 to 42-1749.

§ 42-1746. Funding, refunding bonds.

The board may by resolution, from time to time, provide for the issuance of funding or refunding revenue bonds to fund or refund any outstanding revenue or other warrants or bonds, and any premiums thereon, and coupons evidencing interest upon any such bonds at or before the maturity or first optional redemption date of such coupons, warrants or bonds, and may combine various outstanding revenue warrants and parts or all of various series and issues of outstanding revenue bonds and matured coupons in the amount thereof to be funded or refunded. Revenue bonds may be refunded only at maturity, upon call for redemption in accordance with their terms or with consent of the holder.

The board shall create a special fund or funds for the sole purpose of paying the principal of and interest on such funding or refunding revenue bonds, into which fund the board shall obligate and bind the board to set aside and pay any part or parts of, or all of, or a fixed proportion of, or a fixed amount of the available revenue of the board sufficient to pay such principal and interest as the same shall become due, and if deemed necessary to maintain adequate reserves therefor.

Nelson v. Marshall, 94 Idaho 726, 497 P.2d 47 (1972).

§ 42-1751. Definitions.

As used in this act, unless the context requires otherwise:

“Board” means Idaho water resource board.
“Irrigation district,” “canal or irrigation company,” “water users’ association,” “municipal corporation,” or “municipality,” mean such entities created and existing under the laws of the state of Idaho.
“Construction” means the construction, in whole or in part, of a new project, or the improvement or renovation, in whole or in part, of an existing project, or both such construction and improvement or renovation.
“Project” means any project by means of which water shall be utilized or benefits accrue within this state for purposes within the limitations of this act.
“Revolving fund” means Idaho water resource board revolving development fund.

History.

1969, ch. 333, § 2, p. 1051.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” in the introductory paragraph refer to S.L. 1969, chapter 333, which is compiled as§§ 42-1750 to 42-1759.

OPINIONS OF ATTORNEY GENERAL

Revenue Bonds.

§ 42-1752. Establishment of Idaho water resource board revolving development fund.

There is hereby established in the state treasury a special fund to be known as the Idaho water resource board revolving development fund. All money in the fund is appropriated continuously to the board to be used and administered by it for the purpose of developing the state’s water resources, and shall not be subject to the provisions of the Standard Appropriations Act of 1945 or section 67-3516, Idaho Code.

History.

1969, ch. 333, § 3, p. 1051.

STATUTORY NOTES

Prior Laws.

Standard appropriations act of 1945,§ 67-3601 et seq.

CASE NOTES

Constitutionality.

The continuous appropriation provided by this section does not violate Idaho Const., Art. VII, § 13. Nelson v. Marshall, 94 Idaho 726, 497 P.2d 47 (1972).

§ 42-1753. Source of fund.

Funds borrowed from the revolving development fund, together with interest due thereon, shall be repaid to the board and placed in the revolving fund together with receipts and revenues of any type and nature derived from any project constructed, operated, or maintained, in whole or in part, with moneys from the revolving fund, revenues received over and above the cost of projects financed by revenue bonds, revenues collected by or on behalf of water user entities for the purpose of repaying indebtedness under applicable statutory authority, revenues received from the sale of state land acquired by the board for water projects, surplus revenues from the sale of Carey Act (Title 43 USCA s. 641) lands, revenues received from the lease of water rights, fees received from water deliveries which are in excess of costs on projects sponsored by the board, gifts or grants from any source when the same are made for purposes consistent with those for which the revolving fund is established, and moneys from any other appropriate source.

History.

1969, ch. 333, § 4, p. 1051; am. 2005, ch. 362, § 4, p. 1149.

STATUTORY NOTES

Compiler’s Notes.

The reference cite enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 8 of S.L. 2005, ch. 362 declared an emergency. Approved April 12, 2005.

§ 42-1754. Allocation of fund.

The Idaho water resource board revolving development fund shall be allocated for use:

To the board for a project which it deems to be “in the public interest” and which, in its opinion, further implements any extant Idaho state water plan, in such amounts as are necessary for preparation of a feasibility study of the project, engineering services in preparing designs and specifications, and for construction of the project.
As loans from the revolving development fund which may be approved by the board and made to irrigation districts, canal or irrigation companies, water users’ associations, municipal or private corporations, or, in special cases when approved by the board, to individuals to finance project costs, provided, however, that no loans shall be made to finance feasibility studies except as a part of overall project costs.
To establish reserve accounts or guarantee funds in the state treasury to aid in the funding of water projects. Interest earned on such moneys invested by the state treasurer shall be paid into the water resource board revolving development fund.
To the board to finance joint ventures for project construction with federal agencies, neighboring states, legal subdivisions of the state, private corporations, or other organizations, and including the costs of feasibility studies, investigations, and other preparatory expenses, for purposes consistent with those for which the fund is established, and the board is authorized to use the fund for these purposes.
To the board to finance feasibility studies, investigations, and other preparatory expenses for projects it intends to fund through the sale of revenue bonds or through use of funds from other sources.
To the board for payment of costs associated with the issuance and repayment of the board’s revenue bonds.

History.

1969, ch. 333, § 5, p. 1051; am. 1979, ch. 154, § 1, p. 469; am. 2005, ch. 362, § 5, p. 1149.

STATUTORY NOTES

Cross References.

State treasurer,§ 67-1201 et seq.

Compiler’s Notes.

Section 7 of S.L. 2005, ch. 362 provided “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of the act.”

Effective Dates.

Section 8 of S.L. 2005, ch. 362 declared an emergency. Approved April 12, 2005. CASE NOTES

Constitutionality.

Provision authorizing loans to individuals “in special cases” does not violate Idaho Const., Art. VIII, § 2, prohibiting the giving or loaning of the credit of the state in the aid of any individual, neither is such provision violative of the equal protection guarantees of the federal constitution, nor does it render the section void for vagueness under Idaho Const., Art. III, § 17. Nelson v. Marshall, 94 Idaho 726, 497 P.2d 47 (1972).

Loans.

Where district court entered findings of fact fully substantiated by the record, in prohibition action brought by taxpayer, and a review of plaintiff’s evidence indicated total failure to prove any arbitrary or capricious action by water resource board in approving loans, motion to dismiss pursuant to Idaho R. Civ. P. 41(b) was properly granted. Nelson v. Marshall, 94 Idaho 726, 497 P.2d 47 (1972).

§ 42-1755. Projects — Plans and cost estimates — Repayment contracts — Title.

When a project has been selected by the board to be constructed by the board with money made available from the revolving fund, the board shall cause plans and cost estimates of such project to be prepared and the board is authorized to enter into a contract or contracts for construction of such project after legislative approval. The board shall insure that water developed or conserved by any such project shall be utilized or benefits accrue within this state, and it shall enter into appropriate repayment contracts with the project water users. The board shall assess against any project water user such charge as, in the opinion of the board, is necessary and reasonable for the maintenance and operation of the project during the repayment period and for repayment to the revolving fund of the amount allocated therefrom for making the feasibility study and for construction of the project, including costs for engineering services, design, specifications, and other preparatory expenses. All money allocated to the project from the revolving fund shall be repaid as determined by the board, provided that the repayment period shall not exceed 60 years.

Title to all projects constructed by the board with money from the revolving fund shall vest in the board. At the end of the repayment period, the board shall make a determination, guided by the principles set forth in the act under which it operates, as to whether or not it is in the public interest to turn title to such project over to the users of such project. Its action shall be based upon such determination, and the board is specifically authorized to convey title to the project to those who use the water from such project if it finds this to be in the public interest.

History.

1969, ch. 333, § 6, p. 1051.

§ 42-1756. Loans from account — Application — Investigation — Approval — Repayment — Statement — Filing — Default.

Any irrigation district, canal or irrigation company, water users’ association, municipal corporation, municipality, private corporation, aquifer protection district, or, in special cases approved by the board, an individual may file an application with the board for a loan from the revolving account for the purpose of financing project costs. Such application shall be filed in such manner, and shall be in such form and be accompanied by such information as may be prescribed by the board; provided, however, that any such application filed with the board under the provisions of this act, shall:
1. Describe the nature and purpose(s) of the proposed project.
2. Set forth or be accompanied by a plan for development of the proposed project, together with such engineering and economic feasibility data and estimated costs of construction as may be required by the board.
3. State whether money other than that for which application is made to the board will be used for project costs, and whether such money is available or has been sought for this purpose.
4. Show that the applicant holds or can acquire title to all lands or has the necessary easements and rights-of-way for the project and related lands, and has or can acquire all water rights necessary for the construction, operation and maintenance of the proposed project, or that there exists sufficient water available for appropriation by proof of a permit issued by the director of the department of water resources.
Upon receipt of an application, the board shall evaluate and, if it deems it to be necessary, investigate all aspects of the proposed project and the proposed construction thereof. As a part of such investigation, the board shall determine whether the plan for development of the project is satisfactory. If the board determines that the plan is unsatisfactory, it shall return the application to the applicant and may make such recommendations to the applicant as are considered necessary to make the plan satisfactory.
The board may approve a loan for project costs if after investigation (if this is deemed necessary,) and evaluation it finds that:
1. The plan does not conflict with any extant Idaho state water plan;
2. The proposed project is feasible from an engineering standpoint and economically justified, with studies showing a favorable benefit to cost ratio;
3. The plan for development of the proposed project is satisfactory;
4. The applicant is qualified and responsible;
5. There is reasonable assurance that the borrower can repay the loan; and
6. That money in the revolving account is available for the loan.
If the board approves a loan, the board and the applicant or applicants shall enter into an agreement for repayment to the revolving account of money loaned therefrom, together with interest thereon at reasonable rates as determined by the board. The agreement shall further provide that repayment of the loan, together with interest thereon, shall commence no later than one (1) full year after construction of the project is completed, and that repayment shall be completed within the time period specified by the board; provided that repayment to reserve accounts or guarantee funds shall be made as provided by order of the board. The repayment period shall not exceed sixty (60) years, except that the board may extend the time for making repayment in the event of emergency or hardship. Such agreement shall also provide for such assurances of, and security for, repayment of the loan as are considered necessary by the board. (5) The state shall have a lien upon a project constructed with money from the revolving account for the amount of the loan, together with the interest thereon. This lien shall attach to all project facilities, equipment, easements, real property and property of any kind or nature associated with the project and all water rights associated in any way with the project. The board shall file a statement of the loan, its amount, terms and a description of the project with the county recorder of each county in which the project or any part thereof is located. The county recorder shall record the lien in a book kept for the recording of liens and it shall be indexed as other liens are required by law to be indexed. The lien shall be valid until paid in full or otherwise discharged. The lien shall be foreclosed in accordance with applicable state law governing foreclosure of mortgages and liens as set forth in chapter 1 of title 6, Idaho Code, chapter 13 of title 45, Idaho Code, and related provisions of the statutes of this state.

(6) If an applicant fails to comply with the repayment contract, its interest in the project may be conveyed to a successor upon approval by the board, which may contract with the qualified successor in interest of the original obligor for repayment of the loan, together with the interest thereon, and for succession to its rights and obligations in any contract with the board.

(7) The state shall have a lien on any or all projects which the board improves or renovates with money from the revolving account, and such lien shall be valid and continue in effect until such funds, together with interest thereon, have been paid in full and the lien discharged. The board shall file a statement of the lien, and the lien shall be foreclosed upon all project property and rights as provided in subsection (5) of this section.

History.

1969, ch. 333, § 7, p. 1051; am. 1978, ch. 345, § 12, p. 884; am. 1979, ch. 154, § 2, p. 469; am. 2006, ch. 126, § 1, p. 362; am. 2006, ch. 304, § 2, p. 937.

STATUTORY NOTES

Amendments.

This section was amended by two 2006 acts which appear to be compatible and have been compiled together.

The 2006 amendment, by ch. 126, redesignated the subsections and deleted former subsection (c)(7), which read: “That the loan does not exceed five hundred thousand dollars ($500,000) unless legislative approval has been obtained.”

The 2006 amendment, by ch. 304, inserted “aquifer protection district” in the introductory paragraph of subsection (1).

Compiler’s Notes.

The words “this act” near the end of the introductory paragraph in subsection (1) refer to S.L. 1969, chapter 333, which is compiled as§§ 42-1750 to 42-1759.

Effective Dates.

Section 3 of S.L. 1979, ch. 154 declared an emergency. Approved March 29, 1979.

CASE NOTES

Constitutionality.

Provision authorizing loans to individuals “in special cases” does not violate Idaho Const., Art. VIII, § 2, prohibiting the giving or loaning of the credit of the state in the aid of any individual, neither is such provision violative of the equal protection guarantees of the federal Constitution, nor does it render the section void for vagueness under Idaho Const., Art. III, § 17, and section was not unconstitutional for failure to expressly restate mandate of Idaho Const., Art. IV, § 18 relating to approval by board of examiners of all claims against the state. Nelson v. Marshall, 94 Idaho 726, 497 P.2d 47 (1972).

§ 42-1757. Members of board — Conflicts of interest.

No member of the board shall participate in the action of the board, nor be present during the board’s deliberations, concerning an application for a loan by an entity in which such board member is an officer, agent or employee, or in which such board member has any interest.

(5) The director of the department of water resources shall assist the board in any way the board deems necessary to fulfill the policy and purpose of the water management account, including technical evaluation of proposed projects and coordination in state and federal agencies. History.

I.C.,§ 42-1760, as added by 1978, ch. 356, § 1, p. 939; am. 1988, ch. 217, § 1, p. 411; am. 2019, ch. 317, § 2, p. 941.

STATUTORY NOTES

Cross References.

Standard appropriations act of 1945,§ 67-3601 et seq.

Amendments.

The 2019 amendment, by ch. 317, added the last sentence in subsection (1); in subsection (2), added the last sentence in the introductory paragraph, and added paragraphs (c) and (d); added subsections (3) and (4); and redesignated former subsection (3) as subsection (5).

Effective Dates.

Section 6 of S.L. 2019, ch. 317 declared an emergency. Approved April 5, 2019.

§ 42-1761. Water supply bank created.

The water resource board shall have the duty of operating a water supply bank. The water supply bank shall make use of and obtain the highest duty for beneficial use from water, provide a source of adequate water supplies to benefit new and supplemental water uses, and provide a source of funding for improving water user facilities and efficiencies.

History.

I.C.,§ 42-1761, as added by 1979, ch. 193, § 1, p. 560.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

§ 42-1762. Rules and regulations — Acquisition of water rights.

The water resource board shall adopt rules and regulations governing the management, control, delivery and use and distribution of water to and from the water supply bank in compliance with chapter 52, title 67, Idaho Code.
The board may contract with lessors and lessees to act as an intermediary in facilitating the rental of water. The board may purchase, lease, or otherwise obtain decreed, licensed or permitted water rights to be credited to the water supply bank. The use to which the owner is entitled under the water right shall be reduced by the portion of the water right leased to the bank. The water rights may be retained in the water supply bank for a period as determined by the board, all under such provisions as are specified in the terms of the purchase or lease.

History.

I.C.,§ 42-1762, as added by 1979, ch. 193, § 2, p. 560; am. 1990, ch. 318, § 1, p. 868.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

§ 42-1763. Rentals from bank — Approval by director.

The terms and conditions of any rental of water from the water supply bank must be approved by the director of the department of water resources. The director of the department of water resources may reject and refuse approval for or may partially approve for a less quantity of water or may approve upon conditions any proposed rental of water from the water supply bank where the proposed use is such that it will reduce the quantity of water available under other existing water rights, the water supply involved is insufficient for the purpose for which it is sought, the rental would cause the use of water to be enlarged beyond that authorized under the water right to be rented, the rental will conflict with the local public interest as defined in section 42-202B, Idaho Code, or the rental will adversely affect the local economy of the watershed or local area within which the source of water for the proposed use originates, in the case where the place of use is outside of the watershed or local area where the source of water originates. The director shall consider in determining whether to approve a rental of water for use outside of the state of Idaho those factors enumerated in subsection (3) of section 42-401, Idaho Code.

History.

I.C.,§ 42-1763, as added by 1979, ch. 193, § 3, p. 560; am. 1990, ch. 318, § 2, p. 868; am. 1992, ch. 101, § 1, p. 319; am. 2003, ch. 298, § 5, p. 806.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

§ 42-1763A. Interim authority for rental of storage water to augment lower snake river flows during the migration of snake river salmon. [Null and void date January 1, 1996.]

STATUTORY NOTES

Compiler’s Notes.

Section 4, S.L. 1992, ch. 101 as amended by Section 2 of S.L. 1994, ch. 452 provided: “Section 2 of this act [§ 42-1763A] shall be null, void and of no force and effect on and after January 1, 1996.” Prior to the amendment by S.L. 1994, ch. 452, the original date contained in S.L. 1992, ch. 101 provided that this section would be null and void on and after January 1, 1995. The extension of the null and void date to 1996 takes effect, according to § 3 of S.L. 1994, ch. 452, as follows: “This act shall be in full force and effect when the Governor shall make a proclamation that the U.S. Bureau of Reclamation has agreed to withdraw or hold in abeyance for a period of one (1) year its applications for transfer of water rights in the Payette River Basin.” Now see§ 42-1763B.

§ 42-1763B. Interim authority for rental of water to augment flows for listed anadromous fish.

Legislative findings and intent regarding rental of water by the U.S. bureau of reclamation in the Snake River basin within Idaho to augment lower Snake River flows for anadromous fish listed under the endangered species act. The legislature finds that the U.S. bureau of reclamation proposes to release up to four hundred twenty-seven thousand (427,000) acre feet of leased or uncontracted water diverted from the Snake River basin to reservoir storage above Lewiston, and to lease or acquire up to sixty thousand (60,000) acre feet of consumptive natural flow water rights diverted and consumed below Milner dam and above Swan Falls dam from the mainstem [main stem] of the Snake River to augment flows downstream of Hells Canyon dam during 2005 and through December 31, 2034. The state of Idaho is experiencing serious drought conditions and it is therefore uncertain whether this water will be available for rental for flow augmentation purposes in all years. The legislature further finds that authorization of this legislation is necessary for approval and implementation of the Snake River Water Rights Agreement of 2004 (Mediator’s Term Sheet dated April 20, 2004, and submitted on that date to the SRBA Court in SRBA Consolidated Subcase 03-10022 and SRBA Consolidated Subcase 67-13701, with all appendices to the document), as approved, ratified, and confirmed by the 108th Congress of the United States in the “Snake River Water Rights Act of 2004,” Pub. L. No. 108-447 (H.R. 4818), 118 Stat. 3431 to 3441 (December 8, 2004). Therefore, the legislature authorizes the U.S. bureau of reclamation to lease storage and natural flow water rights through the state water supply bank and local rental pools under the limited conditions of this section. Any rentals of water for flow augmentation under any other provision of law, including section 42-108A, Idaho Code, shall be subject to the limitations and conditions of this section and the Snake River Water Rights Agreement of 2004.
Rental of water by the U.S. bureau of reclamation.
1. Notwithstanding the legislative approval required in section 42-108, Idaho Code, any storage water released and any natural flow water rights leased or acquired by the bureau within the state of Idaho for listed anadromous fish pursuant to this section must be rented through the water bank operated by the Idaho water resource board pursuant to sections 42-1761 through 42-1764, Idaho Code, or, in the case of storage water releases, through local rental committees, created pursuant to section 42-1765, Idaho Code, under their respective water bank rules.
2. For any rental of water pursuant to this section, the director shall not be required to determine under section 42-1763, Idaho Code, whether the water supply is sufficient for the purpose for which it is sought, whether the rental would cause the use of water to be enlarged beyond that authorized under the water right to be rented, whether such use is in the public interest, or whether such use is consistent with the factors enumerated under subsection (3) of section 42-401, Idaho Code. (3) Conditions on water rentals.
3. In no event shall the release of water under this section cause the water surface of Lake Cascade to be below the elevation required to maintain a storage volume of three hundred thousand (300,000) acre feet, fifty thousand (50,000) acre feet of which is dead space, which is currently estimated to be at an elevation of four thousand eight hundred nine and two-tenths (4,809.2) feet. In addition, the state of Idaho shall pursue a shaping agreement for any uncontracted water released from Lake Cascade under this section.
4. The rental or use of water under this section shall be in compliance with any permit, applicable water quality rule and regulation or other requirements of the clean water act, shall not cause jeopardy to other species in the state of Idaho, and shall not result in significant adverse impacts to recreational uses of the waters of the Snake River basin in Idaho. The state of Idaho shall not require any restriction, modification, or condition on the diversion, storage, use, discharge of water, or land use to remedy or address violations of water quality standards or other clean water act requirements to the extent the rental or use of water by the U.S. bureau of reclamation under this section causes the violations.
5. The U.S. bureau of reclamation shall submit a report to the director by January 15 of each year describing the time, volume and purpose of water provided for listed anadromous fish from the Snake River basin above Lewiston during the past year and shall report on the plan for the spring and summer chinook by April 1 and on the plan for the fall chinook by July 15 of each year.
6. All water rented or used by the U.S. bureau of reclamation under this section from above Hells Canyon dam must be used for power production purposes within the state of Idaho.
7. All water rented or used by the U.S. bureau of reclamation under this section shall be subject to the terms and conditions contained in the Snake River Flow Component of the Snake River Water Rights Agreement of 2004.
8. Nothing herein shall entitle the U.S. bureau of reclamation to rent or use water for flow augmentation upon termination or expiration of the permission given in this section.

(a) Any water made available under this section shall be obtained only from willing lessors. Any water rented under this section from sources located within a basin having a local rental committee established pursuant to section 42-1765, Idaho Code, or section 42-1765A, Idaho Code, shall be rented pursuant to this section only through the local rental committee.

(b) Storage water made available under this section shall be limited to four hundred twenty-seven thousand (427,000) acre feet annually, and natural consumptive flow water shall be limited to not more than the sixty thousand (60,000) acre feet annually, that accrue to natural flow water rights, acquired or leased by the U.S. bureau of reclamation pursuant to the terms of the Snake River Water Rights Agreement of 2004. These amounts shall be reduced by other water the U.S. bureau of reclamation provides for flow augmentation for listed anadromous fish from the Snake River basin above Lewiston.

(4) Nothing in this section shall be construed to alter, or authorize the U.S. bureau of reclamation to modify in any way its existing contractual obligations, or to constitute a finding by the legislature that the rental or use of storage water or natural flow water rights for flow augmentation for listed anadromous fish or any other species is a beneficial use of water, that it is in the public interest, or whether such use injures existing water rights.

(5) This section shall not become effective until the director certifies to the governor that the U.S. bureau of reclamation’s applications to transfer water right numbers 4616, 4617, 4618, 4623, 4625, 4626, 4627, 4628, 4629, 4630, 4631, 4632, 4633 and 4636, and to amend water right permit numbers 25-07004 and 63-3618 will be withdrawn, or held in abeyance while this section is in effect, and the governor further certifies that the biological opinions required by the Snake River Water Rights Agreement of 2004 have been issued. (6) This act shall be null, void and of no force and effect upon the expiration or termination of the Snake River Flow Component of the Snake River Water Rights Agreement of 2004. In addition, it is the intent of the legislature to consider the repeal of this section in the event that any of the provisions of the Snake River Flow Component of the Snake River Water Rights Agreement of 2004 are modified or declared arbitrary, capricious or otherwise unlawful or set aside by any federal court or there is a finding of jeopardy by any federal court in regard to any biological opinions for projects operated by the U.S. bureau of reclamation in the Snake River basin in Idaho.

History.

I.C.,§ 42-1763B, as added by 2000, ch. 222, § 2, p. 616; am. 2001, ch. 394, § 1, p. 1372; am. 2002, ch. 349, § 1, p. 997; am. 2005, ch. 149, § 1, p. 462; am. 2005, ch. 400, § 1, p. 1363.

STATUTORY NOTES

Prior Laws.

Former§ 42-1763B, which comprised I.C.,§ 42-1763B, as added by 1996, ch. 282, § 1, p. 912, was repealed by S.L. 2000, ch. 222, § 1, effective April 12, 2000.

Federal References.

The endangered species act, referred to in subsection (1), is codified as 16 USCS § 1531 et seq.

The clean water act, referred to in paragraph (3)(d), is codified as 33 USCS § 1251 et seq.

Compiler’s Notes.

On April 27, 2007, the governor issued a proclamation stating that the requirements added by S.L. 2005, Chapter 400 to subsection (5), certification that the biological opinions required by the Snake River Water Rights Agreement of 2004 have been released, have been met. As of that date, the provisions of this section are operative.

The bracketed insertion in the second sentence in subsection (1) was added by the compiler to correct the 2005 amendment of this section.

For more on the United States bureau of reclamation, see http://www.usbr.gov .

The words “this act” in subsection (6) refer to S.L. 2000, chapter 222, which is codified as this section.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 3 of S.L. 2000, ch. 222 declared an emergency retroactively to January 1, 2000 and approved April 12, 2000.

Section 2 of S.L. 2001, ch. 394 declared an emergency retroactively to January 1, 2001 and approved April 17, 2001. Section 2 of S.L. 2002, ch. 349 declared an emergency retroactively to January 1, 2002 and approved March 27, 2002.

Section 2 of S.L. 2005, ch. 149 and Section 2 of S.L. 2005, ch. 400 declared an emergency retroactively to January 1, 2005 and approved March 24, 2005.

§ 42-1764. Substitution for transfer proceeding — Rights not subject to forfeiture — No dedication of rights.

The approval of a rental of water from the water supply bank may be a substitute for the transfer proceeding requirements of section 42-222, Idaho Code.
Water rights obtained by the board or by a local committee appointed by the board and credited to the water supply bank are not subject to forfeiture for nonuse pursuant to section 42-222(2), Idaho Code, while retained in or rented from the water supply bank. The five (5) year period of nonuse for forfeiture of a water right shall begin to accrue upon removal of a right from the bank by the owner of the right if a period of nonuse did not occur prior to the date of acceptance of the right into the bank. The five (5) year period of nonuse shall continue to accrue if a period of nonuse occurred prior to the effective date of acceptance of the right into the bank and the right was not beneficially used while in the bank.
The rental of water rights from the water supply bank shall not constitute a dedication to the lands of any renter since the rental or distribution of water by the water bank is only incidental to its primary purposes listed in section 42-1761, Idaho Code.

History.

I.C.,§ 42-1764, as added by 1979, ch. 193, § 4, p. 560; am. 1990, ch. 318, § 3, p. 912.

OPINIONS OF ATTORNEY GENERAL

Forfeiture.

On its face, this section seems to require that a water right be accepted and subsequently rented out in order to toll the forfeiture provisions of§ 42-222(2); however, when this section is interpreted in light of the entire water supply bank act, it is possible to argue that the forfeiture period should be tolled whenever a water right is placed into the bank. Because of the ambiguity within the act, it is not possible to predict which interpretation a court might adopt.OAG 88-4.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Why Does Idaho’s Water Law Regime Provide for Forfeiture of Water Rights?, Peter R. Anderson and Aaron J. Kraft. 48 Idaho L. Rev. 419 (2012).

§ 42-1765. Local committees — Rental of stored water — Apportionment of rental proceeds.

The water resource board may appoint local committees, including water district advisory committees as provided in section 42-605(6), Idaho Code, to facilitate the rental of stored water. When so appointed, the committee shall have the authority to market stored water between consenting owners and consenting renters under rules and regulations adopted by the board. The director of the department of water resources may approve a general lease which the local rental committee may utilize to meet the approval requirements enumerated in section 42-1763, Idaho Code.

In exercising its authority under this section, the local rental committee, if also the advisory committee of a water district, shall determine, in advance, at the annual meeting of water users of the water district held pursuant to section 42-605, Idaho Code, each year, that portion of the proceeds for the year from the lease of stored water to be paid to consenting contract holders of the storage water rights as reimbursement for their costs and that portion to be retained by the district in which the committee is located. Any proceeds retained by a district shall be used exclusively by the advisory committee of the water district for public purposes as set forth in section 42-613A, Idaho Code, and as provided by resolutions adopted by the water users of the district.

History.

I.C.,§ 42-1765, as added by 1979, ch. 193, § 5, p. 560; am. 1986, ch. 78, § 2, p. 236; am. 1992, ch. 339, § 22, p. 1014.

OPINIONS OF ATTORNEY GENERAL

Control of Funds.

§ 42-1765A. Lemhi river basin — Local rental committee.

The water resource board will appoint a local rental committee to facilitate operation of the water supply bank within the Lemhi river basin comprised of the Lemhi river and all tributary water sources. Section 42-1765, Idaho Code, and the board’s water supply bank rules applicable to the operation of a storage water rental pool shall apply to the operation of the water supply bank in the Lemhi river basin, except as inconsistent with this section.
When so appointed, the local rental committee for the Lemhi river basin shall have authority to rent natural flow water rights between consenting owners and consenting renters.
Rights to the use of water for a portion of the approved period of use under a water right may be accepted into the water supply bank and rented out to satisfy the board’s minimum stream flow water right authorized under section 42-1506, Idaho Code, provided the owner demonstrates to the satisfaction of the director that there will be an equivalent reduction in the extent of beneficial use made under the right.

History.

I.C.,§ 42-1765A, as added by 2001, ch. 373, § 2, p. 1309.

STATUTORY NOTES

Effective Dates.

Section 3 of S.L. 2001, ch. 373 declared an emergency. Approved April 10, 2001.

§ 42-1765B. Wood River basin — Water rights donated to enhance instream flows and downstream water supplies

Local committee. [Repealed.]

Repealed by S.L. 2007, ch. 262, § 4, effective December 31, 2012.

History.

I.C.,§ 42-1765B, as added by 2007, ch. 262, § 2, p. 777.

§ 42-1766. Appeals procedure for water right holders.

During the period of a lease, any water right holder who determines that the lease 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 revoke or modify the lease. 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 interference is occurring, he may revoke or require the lease to be modified to insure that no injury to other water rights occurs.
Any person 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.

History.

I.C.,§ 42-1766, as added by 1979, ch. 193, § 6, p. 560; am. 1980, ch. 238, § 18, p. 526.

STATUTORY NOTES

Compiler’s Notes.

Section 7 of S.L. 1979, ch. 193 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

§ 42-1767. Approval of projects — Authority of water users to contract with board — Authorizing the board’s acquisition of interest in projects.

Irrigation districts, canal companies, irrigation companies, water user associations and water associations are authorized to hold elections, subject to the provisions of section 34-106, Idaho Code, for the purpose of submitting a question to their qualified voters, members or stockholders, as the case may be, as to whether the district, company or association should finance the projects and facilities through the Idaho water resource board for the purposes set forth in section 42-1740, Idaho Code. A two-thirds (2/3) vote is required to approve the project. Any irrigation district, canal company, irrigation company, water user association or water association, is hereby authorized to enter into any agreement or agreements with the board with respect to an approved project within the state of Idaho, including but not limited to, agreements providing for the sale, lease or other transfer of title to real and personal property or providing for the maintenance or operation of projects rehabilitated or repaired, or pertaining to the loan or grant of funds for such projects, and said irrigation district, canal company, irrigation company, water user association or water association is hereby authorized to levy assessments as may be necessary therefor. The statutory rights and duties of any such entity shall not in any way be limited or diminished due to any such agreement or agreements with the board. In the event the board acquires an ownership interest, the board shall not assume any liabilities thereon as a result of such transfer of ownership, provided however, that it shall not acquire any voting rights in any irrigation district, canal company, water user’s association or similar entity as a result thereof.

History.

I.C.,§ 42-1767, added by 1981, ch. 90, § 3, p. 125; am. 1995, ch. 118, § 58, p. 417.

STATUTORY NOTES

Effective Dates.

Section 4 of S.L. 1981, ch. 90 declared an emergency. Approved March 23, 1981.

§ 42-1768. Task force to study issues pertaining to the development of the Bear River. [Expired.]

STATUTORY NOTES

Compiler’s Notes.

Section 3 of S.L. 1989, ch. 258 provided that this section would become null, void and of no force and effect on and after January 1, 1991, unless reauthorized by the legislature by law.

§ 42-1769 — 42-1774. [Reserved.]

The welfare and well-being of the people of the state of Idaho is dependent upon the conservation, development and optimum use of the state’s water resources. Water development involves extensive planning, special studies, public support and efficient implementation. The people of Idaho declared their intention to develop the state’s water resources in the Idaho constitution, article 15, section 7, providing for a state water plan. Funding by the state of Idaho will insure timely implementation of water projects in the public interest.

History.

I.C.,§ 42-1775, as added by 1979, ch. 325, § 1, p. 883.

CASE NOTES

Decrees.

§ 42-1776. Water resources conservation and development trust account.

There is hereby created and established in the agency asset fund the water resources conservation and development trust account. All moneys in the account are to be utilized by the Idaho water resources board, upon appropriation by the legislature, to conduct water project feasibility and engineering studies authorized in conjunction with the powers and duties of the board as provided in section 42-1734, Idaho Code, and to secure revenue bonds authorized by section 42-1739, Idaho Code.

The state treasurer is directed to invest all moneys in the account. All interest or other income occurring from such investment shall accrue to the account.

In the event that a project is approved subsequent to a feasibility study funded from the account, the funds expended from the account shall be included as a cost of the project to be repaid to the fund through repayments contracted by the board. It shall be the duty of the board to specify such repayment provisions without regard to the source of funding of the project.

History.

I.C.,§ 42-1776, as added by 1979, ch. 325, § 2, p. 883.

STATUTORY NOTES

Cross References.

State treasurer,§ 67-1201 et seq.

Compiler’s Notes.

Section 5 of S.L. 1979, ch. 325 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

§ 42-1777. Water resources adjudication fund.

A water resource adjudication fund is hereby created and established in the state treasury. The state controller may establish multiple fund details within the fund to account for fees collected from different adjudications. Fee moneys in the fund are to be utilized by the department of water resources, upon appropriation by the legislature, to pay the costs of the department attributable to general water rights adjudications conducted pursuant to chapter 14, title 42, Idaho Code.
Fee moneys in the fund may also be utilized by the judiciary, upon appropriation by the legislature, to pay for judicial expenses directly relating to each adjudication including, but not limited to, compensation and expenses of special masters appointed by the Idaho supreme court or by the district court, compensation and expenses of clerical staff of the district court, and publication, notice and mailing costs incurred by the district court.

The state treasurer is directed to invest all moneys in the fund. All interest or other income accruing from such investment shall accrue to the appropriate fund detail.

History.

I.C.,§ 42-1777, as added by 1985, ch. 18, § 4, p. 27; am. 1986, ch. 220, § 24, p. 558; am. 2006, ch. 400, § 5, p. 1224.

STATUTORY NOTES

Cross References.

State controller,§ 67-1001 et seq.

State treasurer,§ 67-1201 et seq.

Amendments.

The 2006 amendment, by ch. 400, substituted “state treasury” for “agency asset fund” in the first sentence of subsection (1); substituted “fund” for “account” throughout the section; inserted the second sentence in subsection (1); substituted “appropriate fund detail” for “account” at the end of subsection (1); and substituted “each adjudication” for “the Snake river adjudication” in subsection (2).

Compiler’s Notes.

Sections 1 to 4 of S.L. 2006, ch. 400, provided: “Section 1. In addition to any other appropriation provided by law, there is hereby appropriated to the Department of Water Resources, to commence a Northern Idaho Water Rights Adjudication, $1,325,000 from the General Fund for the period July 1, 2006, through June 30, 2007.

“Section 2. In addition to any other authorization provided by law, the Department of Water Resources is authorized eleven (11) full time equivalent positions during the period July 1, 2006, through June 30, 2007, for the purpose specified in Section 1 of this act.

“Section 3. In addition to any other appropriation provided by law, there is hereby appropriated to the Supreme Court, $10,000 from the General Fund to be used for a Northern Idaho Water Rights Adjudication for the period July 1, 2006, through June 30, 2007. “Section 4. It is legislative intent that all moneys appropriated in this act be used exclusively to commence a Northern Idaho Water Rights Adjudication and that all unexpended and unencumbered General Fund moneys remaining at the end of fiscal year 2007 be reverted to the General Fund.”

CASE NOTES

Fees Not Taken From Account.

Trial court did not abuse its discretion in awarding attorney fees pursuant to§ 12-117 in a case where director of department of water resources was ordered by writ of mandate to comply with§ 42-602, and ordering that the fees and costs not come out of the Snake River basin adjudication account; the court ruled that there was no reasonable basis in law or fact for the director to have refused to comply with§ 42-602. Musser v. Higginson, 125 Idaho 392, 871 P.2d 809 (1994).

Cited

United States v. Idaho ex rel. Dir., Idaho Dep’t of Water Resources, 508 U.S. 1, 113 S. Ct. 1893, 123 L. Ed. 2d 563 (1993).

§ 42-1778. Water rights enforcement account.

The water rights enforcement account is hereby created and established in the agency asset fund.
All moneys in the water rights enforcement account are reserved, set aside, appropriated and made available until expended as may be directed by the director of the department of water resources in carrying out a water rights enforcement program.

History.

I.C.,§ 42-1778, as added by 1986, ch. 313, § 9, p. 763.

§ 42-1779. Statewide comprehensive aquifer planning and management effort.

Pursuant to the provisions of Idaho law and legislative funding approval, the Idaho water resource board and the Idaho department of water resources shall conduct a statewide comprehensive aquifer planning and management effort over a ten (10) year period of time beginning in fiscal year 2009. Funding for the statewide comprehensive aquifer planning and management effort shall be used for technical studies, facilitation services, hydrologic monitoring, measurement and comprehensive plan development as well as for personnel costs, operating expenses and capital outlay associated with the statewide comprehensive aquifer planning and management effort.

History.

I.C.,§ 42-1779, as added by 2008, ch. 134, § 2, p. 377.

STATUTORY NOTES

Compiler’s Notes.

Section 1 of S.L. 2012, ch. 118 provided: “Pursuant to Sections 42-1734A and 42-1779 [this section], Idaho Code, the Idaho Water Resource Board has prepared and, by resolution dated July 29, 2011, adopted the Comprehensive Aquifer Management Plan for the Rathdrum Prairie Aquifer as a component of the Comprehensive State Water Plan. Pursuant to Section 42-1734B(6), Idaho Code, the Comprehensive Aquifer Management Plan for the Rathdrum Prairie Aquifer (”RP CAMP“) is approved as a component of the Comprehensive State Water Plan, and pursuant to Section 42-1734B(4), Idaho Code, all state agencies shall exercise their duties in a manner consistent with the RP CAMP.”

§ 42-1780. Aquifer planning and management fund — Secondary aquifer planning, management and implementation fund.

The aquifer planning and management fund is hereby created in the state treasury. Pursuant to appropriation, moneys in the fund shall be used for technical studies, facilitation services, hydrologic monitoring, measurement and comprehensive plan development as well as for personnel costs, operating expenditures and capital outlay associated with the statewide comprehensive aquifer planning and management effort. The state treasurer shall invest the idle moneys of the fund, and the interest earned on such investments shall be retained by the fund.
There is hereby created in the state treasury, the secondary aquifer planning, management and implementation fund, hereinafter referred to as the secondary fund. The secondary fund shall consist of moneys appropriated to the fund, moneys voluntarily contributed by water users or through water delivery entities or districts having authority to contribute, or through contributions, gifts or grants from any other source, and any other moneys that may hereafter be provided by law. All moneys in the secondary fund shall be used for the purposes for which the moneys were provided through appropriation, contribution or otherwise, and moneys in the secondary fund are appropriated continuously to the water resource board for technical studies, project management services, hydrologic monitoring, measurement and comprehensive plan development, as well as for personnel costs, operating expenditures, capital outlay and water projects associated with the statewide comprehensive aquifer planning and management effort, and shall not be subject to the provisions of the standard appropriations act of 1945 or the provisions of section 67-3516, Idaho Code. The state treasurer shall invest the idle moneys of the fund, and the interest earned on such investments shall be retained by the fund.

History.

I.C.,§ 42-1780, as added by 2008, ch. 321, § 3, p. 890; am. 2010, ch. 356, § 1, p. 934.

STATUTORY NOTES

Cross References.

Standards appropriations act of 1945,§ 67-3601 et seq.

State treasurer,§ 67-1201 et seq.

Amendments.

The 2010 amendment, by ch. 356, in the section catchline, added “secondary aquifer planning, management and implementation fund”; and added the subsection (1) designation and subsection (2).

Effective Dates.

Section 2 of S.L. 2010, ch. 356 declared an emergency. Approved April 12, 2010.

§ 42-1730. Statement of purpose.

STATUTORY NOTES

Compiler’s Notes.

Section 63 of S.L. 1974, ch. 20 read, “The director of the department of water administration serving on the effective date of this act shall continue in office as the director of the department of water resources until the first Monday of January, 1975, subject to the provisions of section 42-1803, Idaho Code.”

§ 42-1804. Successor to commissioner of reclamation — State reclamation engineer — Director of department of water administration.

Whenever rights, powers and duties have heretofore been vested in, or exercised by, the commissioner of reclamation, the state reclamation engineer or the director of the department of water administration, all such rights, powers and duties are hereby transferred to and are vested in and shall be exercised by the director of the department of water resources, and every act done in the exercise of such rights, powers and duties shall have the same legal effect as if done by the former commissioner of reclamation, state reclamation engineer, or director of the department of water administration, or the department of reclamation or the department of water administration, or any deputy inspector or subordinate officer thereof, and the said director of the department of water resources shall be subject to the same obligations and duties and shall have the same rights arising from the exercise of such rights, powers and duties as if such rights, powers and duties were exercised by the said commissioner of reclamation, state reclamation engineer, or director of the department of water administration, or department of reclamation or department of water administration, deputy or subordinate officer thereof designated in the respective laws which are to be administered by the said director of the department of water resources and he shall be subject to the same penalty or penalties, civil or criminal, for failure to perform any such obligation or duty or for doing a prohibited act as if such obligation or duty or such act were prohibited in the exercise of such rights, powers or duties by the commissioner of reclamation, state reclamation engineer, or director of the department of water administration designated in the respective laws which are to be administered by the said director of the department of water resources, and the office of commissioner of reclamation, the office of state reclamation engineer, the office of director of the department of water administration each is hereby abolished and the said director of the department of water resources is hereby declared to be the successor of the said commissioner, the said engineer, or the said director of the department of water administration as to all rights, powers and duties and as to all proceedings now pending in the said department of reclamation, or department of water administration or in an appeal therefrom or in any action pending in any court of competent jurisdiction in which the said commissioner of reclamation, the state reclamation engineer, or the director of the department of water administration is a party in any such action or proceeding. All books, records, papers, documents, property, real and personal, unexpended appropriations and pending business in any way pertaining to the rights, powers and duties hereby transferred to and vested in the said director of the department of water resources shall be delivered and transferred to the said director of the department of water resources.

This act shall not affect any act done, ratified or confirmed or any right accrued or established or any action or proceeding had or commenced in a civil or criminal cause before this act takes effect but such actions or proceedings may be prosecuted and continued by the said department of water resources and the director of the department of water resources under the provisions of this act.

History.

1943, ch. 58, § 9, p. 120; am. 1974, ch. 20, § 31, p. 533.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” in the last paragraph refer to S.L. 1943, chapter 58, which is compiled as§§ 42-1801 to 42-1805 and 67-2403.

CASE NOTES

Cited

Briggs v. Golden Valley Land & Cattle Co., 97 Idaho 427, 546 P.2d 382 (1976).

§ 42-1805. Additional duties.

In addition to other duties prescribed by law, the director of the department of water resources shall have the following powers and duties:

To represent the state in all matters pertaining to interstate and international water rights affecting Idaho water resources; and to cooperate with all agencies, now existing or hereafter to be formed, within the state or within other jurisdictions, in matters affecting the development of the water resources of this state.
To prepare a present and continuing inventory of the water resources of this state, ascertain means and methods of conserving and augmenting these and determine as accurately as possible the most effective means by which these water resources may be applied for the benefit of the people of this state.
To conduct surveys, tests, investigations, research, examinations, studies, and estimates of cost relating to availability of unappropriated water, effective use of existing supply, conservation, storage, distribution and use of water.
To prepare and compile information and data obtained and to make the same available to interested individuals or agencies.
To cooperate with and coordinate activities with the director of the department of environmental quality as such activities relate to the functions of either or both departments concerning water quality. Such cooperation and coordination shall specifically require that:
1. The director meet at least quarterly with the director of the department of environmental quality and his staff to discuss water quality programs. A copy of the minutes of such meeting shall be transmitted to the governor.
2. The director transmit to the director of the department of environmental quality reports and information prepared by him pertaining to water quality programs and proposed rules pertaining to water quality programs.
3. The director shall make available to the director of the department of environmental quality and the director of the department of environmental quality shall make available to the director all notices of hearings relating to the promulgation of rules relating to water quality, waste discharge permits, and stream channel alteration, as such directly affect water quality, and notices of any other hearings and meetings which relate to water quality.
To perform administrative duties and such other functions as the board may, from time to time, assign to the director to enable the board to carry out its powers and duties.
After notice, to suspend the issuance or further action on permits or applications as necessary to protect existing vested water rights or to ensure compliance with the provisions of chapter 2, title 42, Idaho Code, or to prevent violation of minimum flow provisions of the state water plan.
To promulgate, adopt, modify, repeal and enforce rules implementing or effectuating the powers and duties of the department.
To seek a preliminary or permanent injunction, or both, or a temporary restraining order restraining any person from violating or attempting to violate:
1. Those provisions of law relating to all aspects of the appropriation of water, distribution of water, headgates and measuring devices; or
2. The administrative or judicial orders entered in accordance with the provisions of law. (10) To develop, coordinate and provide, through contract or by other means, for weather modification projects involving cloud seeding that are designed to increase the water supplies of the state by enhancing natural precipitation and that conform to state water planning objectives. To accomplish these purposes, the director is authorized to accept and use funds acquired through legislative appropriation or by gift, grant, contribution or funding received from any private or public individual or entity. All funds accepted under this provision shall be transmitted to the state treasurer for deposit in the water administration account and shall be reserved and made available until expended as ordered by the director for weather modification purposes determined by the director to be beneficial.

(11) To develop and implement a plan for data gathering to determine any effect of the weather modification efforts in which the department is involved.

(12) To receive, file, record, or retain documents of record on media other than paper.

History.

1943, ch. 58, § 10, p. 120; am. 1969, ch. 469, § 4, p. 1352; am. 1974, ch. 20, § 32, p. 533; am. 1985, ch. 15, § 1, p. 21; am. 1986, ch. 313, § 10, p. 763; am. 1993, ch. 32, § 1, p. 106; am. 2001, ch. 103, § 83, p. 253; am. 2020, ch. 56, § 1, p. 136.

STATUTORY NOTES

Cross References.

Department of environmental quality,§ 39-104.

State treasurer,§ 67-1201 et seq.

Amendments.

The 2020 amendment, by ch. 55, added subsection (12).

Effective Dates.

Section 12 of S.L. 1943, ch. 58 declared an emergency. Approved Feb. 16, 1943.

Section 64 of S.L. 1974, ch. 20 provided that this act take effect on and after July 1, 1974.

CASE NOTES

Administrative Rules.

To the extent that the district court engaged in an “as applied” analysis of the rules for conjunctive management of surface and ground water resources (CM Rules), it was in error, as administrative remedies had not been exhausted. Am. Falls Reservoir Dist. No. 2 v. Idaho Dep’t of Water Res., 143 Idaho 862, 154 P.3d 433 (2007).

Decrees.

As the rules for conjunctive management of surface and ground water resources (CM Rules) specifically incorporated Idaho law, the failure to recite certain burdens and evidentiary standards, set specific timelines and set objective standards did not make them facially unconstitutional. The CM Rules also survive a facial challenge in the recognition given to partial decrees and in the treatment of carryover water. Am. Falls Reservoir Dist. No. 2 v. Idaho Dep’t of Water Res., 143 Idaho 862, 154 P.3d 433 (2007). Decrees.

Examination of Premises.

The fact that the department went out, after the conference on the company’s application for a water permit, and examined the premises to be irrigated did not constitute legal error, where the agreement that the director could decide the case based in part “upon the records of the department” contained no limitation on the director’s statutory authority to examine the premises. Collins Bros. Corp. v. Dunn, 114 Idaho 600, 759 P.2d 891 (1988).

§ 42-1806. Rural Idaho Economic Development Biofuel Infrastructure, Consumer Choice and Fuel Independence Act of 2007

Retail fuel outlet matching grants for biofuel infrastructure. [Null and void.]

Null and void, pursuant to S.L. 2007, ch. 185, § 2, effective July 1, 2012.

History.

I.C.,§ 42-1806, as added by 2007, ch. 185, § 1, p. 533.

STATUTORY NOTES

Prior Laws.

Former§ 42-1806, comprising S.L. 1994, ch. 449, § 1, was null, void, and of no effect on and after December 31, 1997.

Chapter 19 DAMS AND BOOMS IN CLEARWATER RIVER

Sec.

§ 42-1901. Conditions of construction.

Dams and booms may be constructed and maintained in the Clearwater river and the tributaries thereof in this state: provided, however, that any such dam or boom has connected therewith a sluiceway or other fixture, appliance or opening sufficient and so arranged as to permit floating timber in the form of loose logs, boards, planks, lumber, ties, poles, rails, posts, cordwood or beams but not in rafts, booms or brails, to pass around, through or over such dam or booms without unreasonable delay or hindrance and without any charge therefor.

History.

1911, ch. 100, § 1, p. 343; am. 1915, ch. 59, § 1, p. 146; am. 1917, ch. 130, § 1, p. 437; reen. C.L. 126:15; C.S., § 2992; I.C.A.,§ 41-1601.

STATUTORY NOTES

Cross References.

Booms and weirs when nuisances,§ 38-807.

CASE NOTES

Constitutionality.

Act of legislature authorizing the placing of dams in the North Fork of Clearwater river was not repugnant to Idaho Const., Art. III, § 19. Grice v. Clearwater Timber Co., 20 Idaho 70, 117 P. 112 (1911).

§ 42-1902. Supervision of department of water resources.

The construction and maintenance of any such dam shall be subject to the provisions of sections 42-1707 and 42-1708[, Idaho Code].

History.

1911, ch. 100, § 2, p. 343; reen. 1915, ch. 59, § 2, p. 147; reen. 1917, ch. 130, § 2, p. 437; compiled and reen. C.L. 126:16; C.S., § 2993; I.C.A.,§ 41-1602.

STATUTORY NOTES

Compiler’s Notes.

The name of the department of water administration (formerly the department of reclamation) in the section heading has been changed to the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Sections 42-1707 and 42-1708, referred to in this section, were repealed by S.L. 1969, ch. 280, § 12.

The bracketed insertion at the end of the section was added by the compiler to conform to the statutory citation style.

§ 42-1903. Limitation on right to flood land of others.

This chapter shall not be construed to authorize any person to construct or maintain a dam or boom upon land above highwater mark owned by another person, or to flood, overflow or otherwise take, damage or interfere with land above highwater mark owned by another person without the consent of such owner, unless the right to do so is first acquired by agreement, purchase or condemnation.

History.

1911, ch. 100, part of § 2, p. 343; reen. 1915, ch. 59, § 2, p. 147; am. 1917, ch. 130, § 2, p. 438; reen. C.L. 126:17; C.S., § 2994; I.C.A.,§ 41-1603.

RESEARCH REFERENCES

C.J.S.

§ 42-1904. Regulation by public utilities commission.

Any such dam or boom and the use thereof shall be subject to the regulation and control of the public utilities commission, under chapters 1 to 7 of title 59[, Idaho Code], and any amendments thereof heretofore or hereafter adopted, but only, while and as to, any service, such dam or boom, or the owner thereof, for hire or compensation, furnishes therefrom to the public.

History.

1915, ch. 159, part of § 2, p. 147; am. 1917, ch. 130, § 2, p. 438; reen. C.L. 126:18; C.S., § 2995; I.C.A.,§ 41-1604.

STATUTORY NOTES

Cross References.

“Water system” defined in public utilities law,§ 61-124.

Compiler’s Notes.

The bracketed insertion near the middle of the section was added by the compiler to conform to the statutory citation style.

Chapter 20 RECLAMATION OF CAREY ACT LANDS

Sec.

§ 42-2001. Acceptance of the Carey Act.

The state of Idaho accepts the conditions of section 4 of an act of congress, entitled “An act making appropriations for sundry civil expenses of the government for the fiscal year ending June 30, 1894, and for other purposes,” approved August 18, 1894, and the acts amendatory thereof, together with all the grants of land to the state under the provisions of the aforesaid act and its amendments.

The selection, management and disposal of said land shall be vested in the department of water resources.

History.

1895, p. 215, §§ 1, 2; reen. 1899, p. 282, ch. 2, §§ 1, 2; reen. R.C. & C.L., § 1613; am. 1919, ch. 8, § 44, p. 67; C.S., § 2996; I.C.A.,§ 41-1701.

STATUTORY NOTES

Cross References.

Federal laws pertaining to Carey Act lands, Vol. 1, Idaho Code, Federal Laws, ch. 3, §§ 57-59, 59a, 59b and 59c.

Administration of Carey Act excepted from powers of department of lands,§ 58-119.

Compiler’s Notes.

Original act, August 18, 1894, ch. 301, § 4, 28 Stat. 422; first amendment, act of June 11, 1896, ch. 420, § 1, 29 Stat. 413; second amendment, act of March 3, 1901, ch. 853, § 3, 31 Stat. 1188; additional lands for Idaho, J. R. May 25, 1908, No. 28, 35 Stat. 577; act of May 27, 1908, ch. 200, § 1, 35 Stat. 347; temporary withdrawals, act of March 15, 1910, ch. 96, 36 Stat. 237; Warren Act, Feb. 21, 1911, ch. 141, 36 Stat. 237.

S.L. 1919, ch. 8, § 37, p. 43 (§ 67-3301 herein) vests the powers and duties of the state board of land commissioners in relation to the administration of the Carey Act in the department of reclamation.

S.L. 1970, ch. 12, § 2, p. 21 (§ 42-1801a) substituted the department of water administration for the department of reclamation. Such act was amended by S.L. 1974, ch. 20, § 28, p. 533 wherein the department of water resources was substituted for the department of water administration. See§ 42-1801a.

CASE NOTES

Improper duty of water. Lien on segregated lands.

Beneficial Use of Water.

The entire area for which water rights were sold by a Carey Act construction company were the proper basis for determining beneficial use of water. Twin Falls Land & Water Co. v. Twin Falls Canal Co., 7 F. Supp. 238 (D. Idaho 1933), aff’d, 79 F.2d 431 (9th Cir. 1935); cert. denied, 296 U.S. 654, 56 S. Ct. 581, 80 L. Ed. 466 (1936).

Construction Contracts.

Where construction company failed to furnish water in accordance with its contract, it was liable for damages sustained by settler on land it contracted to irrigate. Hanes v. Idaho Irrigation Co., 21 Idaho 512, 122 P. 859 (1912).

Contract under Carey Act was held to be only a construction contract although it contained provisions not usually contained in Carey Act construction contracts. Sauve v. Title Guar. & Sur. Co., 29 Idaho 146, 158 P. 112 (1916).

Contract for Right of Way.

Provisions of Carey Act are broad enough to sustain contract between land and water company and state, providing in part that “all water users on lands irrigated from said canals or laterals shall have such right of way as may be necessary from the second party’s canal or laterals to their own land in order to construct and maintain the necessary service ditches for their own use * * *.” McElroy v. Helmer, 38 Idaho 327, 222 P. 290 (1923).

Estoppel as to Duty of Water.

Under Carey Act construction, a construction company was estopped from asserting that surplus water rights were available as a basis for sale of additional stock to water users. Twin Falls Land & Water Co. v. Twin Falls Canal Co., 7 F. Supp. 238 (D. Idaho 1933), aff’d 79 F.2d 431 (9th Cir. 1935), cert. denied, 296 U.S. 654, 56 S. Ct. 381, 80 L. Ed. 466 (1936).

Improper Duty of Water.

Under Carey Act, evidence in the cited case was insufficient to establish improper duty of water as basis for contention that surplus water rights were available. Twin Falls Land & Water Co. v. Twin Falls Canal Co., 7 F. Supp. 238 (D. Idaho 1933), aff’d, 79 F.2d 431 (9th Cir. 1935), cert. denied, 296 U.S. 654, 56 S. Ct. 381, 80 L. Ed. 466 (1936).

Lien on Segregated Lands.

A Carey Act construction company, taking over land and water rights under its lien for construction costs where the purchaser thereof had defaulted, held such lands and water rights subject to the statutory lien of the operating company for furnishing water. North Side Canal Co. v. Idaho Farms Co., 107 F.2d 481 (9th Cir. 1939). See also Portneuf-Marsh Valley Canal Co. v. Brown, 274 U.S. 630, 47 S. Ct. 692, 71 L. Ed. 1243 (1927); North Side Canal Co. v. Idaho Farms Co., 60 Idaho 748, 96 P.2d 232 (1939).

Operation of Act.

Lien cannot attach until both state and federal acts have been complied with. Idaho Irrigation Co. v. Pew, 26 Idaho 272, 141 P. 1099 (1914). Operation of Act.

Under the Carey Act and amendments thereto, the government issues its patent to state for segregated lands to which it is shown that provision has been made for supplying sufficient water for their irrigation and reclamation, and state holds such title in trust for settlers and purchasers. Bothwell v. Bingham County, 24 Idaho 125, 132 P. 972 (1913), aff’d, 237 U.S. 642, 35 S. Ct. 702, 59 L. Ed. 1157 (1915).

Procedure for carrying out Carey Act and Idaho statutes applicable thereto, see State v. Twin Falls Salmon River Land & Water Co., 30 Idaho 41, 166 P. 220 (1916). See also Twin Falls Salmon River Land & Water Co. v. Caldwell, 242 F. 177 (9th Cir. 1917); State v. Twin Falls Land & Water Co., 37 Idaho 73, 217 P. 252 (1923).

Although the board (department of water resources) was vested with very wide discretionary powers in the exercise of the duties imposed upon it with regard to Carey Act lands, when it had thrown open to entry land of Carey Act segregation, or portion thereof, and published its notice to that effect in compliance with the statute, it was not vested with discretionary power to refuse to allow entry on said land by person possessing the statutory qualification and who had complied with the statutory conditions precedent to a right to make an entry, and in case of such refusal, mandamus will lie to compel board to allow entry. Furbee v. Alexander, 31 Idaho 738, 176 P. 97 (1918).

Public Trust.

Although a Carey Act construction company had legal title to an irrigation system and water rights, such property was subject to public use and was held in trust for the state and prospective owners. Twin Falls Land & Water Co. v. Twin Falls Canal Co., 7 F. Supp. 238 (D. Idaho 1933), aff’d, 79 F.2d 431 (9th Cir. 1935), cert. denied, 296 U.S. 654, 56 S. Ct. 381, 80 L. Ed. 466 (1936).

Right to Sell Water.

A construction corporation under the Carey Act only had a right to sell water rights for the purpose of reimbursing itself for the costs of construction. Twin Falls Land & Water Co. v. Twin Falls Canal Co., 7 F. Supp. 238 (D. Idaho 1933), aff’d, 79 F.2d 431 (9th Cir. 1935), cert. denied, 296 U.S. 654, 56 S. Ct. 381, 80 L. Ed. 466 (1936).

Cited

Idaho Irrigation Co. v. Gooding, 265 U.S. 518, 44 S. Ct. 618, 68 L. Ed. 1157 (1924); Commonwealth Trust Co. v. Smith, 266 U.S. 152, 45 S. Ct. 26, 69 L. Ed. 219 (1924); Portneuf-Marsh Valley Canal Co. v. Brown, 274 U.S. 630, 47 S. Ct. 692, 71 L. Ed. 1243 (1927); Twin Falls Salmon River Land & Water Co. v. Alexander, 260 F. 270 (D. Idaho 1919); Twin Falls Oakley Land & Water Co. v. Martens, 271 F. 428 (9th Cir. 1921); Twin Falls Salmon River Land & Water Co. v. Caldwell, 272 F. 356 (9th Cir. 1921); Idaho Irrigation Co. v. Gooding, 285 F. 453 (9th Cir. 1922); Glavin v. Commonwealth Trust Co., 295 F. 103 (9th Cir. 1924); Tapper v. Idaho Irrigation Co., 36 Idaho 78, 210 P. 591 (1922); Edholm v. Idaho Irrigation Co., 37 Idaho 116, 214 P. 1036 (1923); Palmer v. Maney, 45 Idaho 731, 266 P. 424 (1928); Carter v. Blaine County Inv. Co., 45 F.2d 643 (D. Idaho 1930); Pierson v. State Bd. of Land Comm’rs, 14 Idaho 159, 93 P. 775 (1908); Craig v. Smith, 33 Idaho 590, 196 P. 1038 (1921).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-2002. Duties of department.

The department of water resources shall receive and file all proposals for the construction of irrigation works to reclaim lands selected under the provisions of this chapter; keep for public inspection maps or plats, on a scale of two (2) inches to the mile, of all lands selected; receive entries of settlers on these lands, and hear or receive the final proof of their reclamation; and do any and all work required in carrying out the provisions of this chapter. It shall have authority to administer oaths whenever necessary in the performance of its duties.

History.

1895, p. 215, ch. 2, § 5; reen. 1899, p. 282, ch. 2, § 5; modified 1905, p. 131, § 30; compiled and reen. R.C. & C.L., § 1614; C.S., § 2997; I.C.A.,§ 41-1702.

STATUTORY NOTES

Cross References.

Department of water resources to exercise certain rights, powers, and duties of register of land board,§ 58-119.

Compiler’s Notes.

CASE NOTES

Powers.

Commissioner of reclamation (director of the department of water resources) was the proper party to bring suit to secure from court of equity advice and direction in the administration of reclamation project. Carter v. Blaine County Inv. Co., 45 F.2d 643 (D. Idaho 1930).

State board of land commissioners and director of the department of water resources are creatures of constitution and statutes and can exercise no authority except that expressly given them and such incidental and implied authority as is necessary to enable them to exercise powers expressly granted. Evans v. Swendsen, 34 Idaho 290, 200 P. 136 (1921).

§ 42-2003. Proposals to construct irrigation works.

Any person, company of persons, association or incorporated company, constructing, having constructed or desiring to construct, ditches, canals or other irrigation works to reclaim land under the provisions of this chapter, shall file with the department of water resources a request for the selection, on behalf of the state, by the department, of the land to be reclaimed designating said land by legal subdivisions.

This request shall be accompanied by a proposal to construct the ditch, canal or other irrigation works necessary for the complete reclamation of the land asked to be selected. The proposal shall be prepared in accordance with the rules of the department of water resources of Idaho as adopted by the director and with the regulations of the department of the interior; and shall be accompanied by the certificate of the director of the department of water resources that application for permit to appropriate water has been filed in its office, together with the department’s report thereon. It shall state the source of water supply, the location and dimensions of the proposed works, the estimated cost thereof, the price and terms per acre at which perpetual water rights will be sold to settlers on the land to be reclaimed, said perpetual rights to embrace a proportionate interest in the canal or other irrigation works, together with all the rights and franchises attached thereto, and whether the applicants intend to apply for settlement of the lands under the provisions of section 42-2013A, Idaho Code.

In the case of incorporated companies it shall state the name of the company, the purpose of its incorporation, the names and places of residence of its directors and officers, the amount of its authorized and of its paid up capital. If the applicant is not an incorporated company, the proposal shall set forth the name or names of the party or parties, and such other facts as will enable the director to determine his or their financial ability to carry out the proposed undertaking.

History.

1895, p. 215, ch. 2, § 6; reen. 1899, p. 282, ch. 2, § 6; reen. R.C. & C.L., § 1615; C.S., § 2998; I.C.A.,§ 41-1703; am. 1974, ch. 164, § 1, p. 1397.

STATUTORY NOTES

Cross References.

Submission of proposal to department,§ 42-2006.

CASE NOTES

Priorities.

All settlers who purchased water rights and applied water to land were in same class, without priorities as among themselves, and shared alike. Faris v. Blaine County Inv. Co., 3 F. Supp. 381 (D. Idaho 1933); Sanderson v. Salmon River Canal Co., 34 Idaho 303, 200 P. 341 (1921), appeal dismissed, 260 U.S. 755, 43 S. Ct. 94, 67 L. Ed. 497 (1922).

Proportionate Interest.

The theory of proportionate sharing of water appropriated has no application where there is not sufficient water to reclaim entire tract. State v. Twin Falls Salmon River Land & Water Co., 30 Idaho 41, 166 P. 220 (1916).

Interest which each purchaser had was proportionate and any loss must also be shared proportionately. State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039 (1911), error dismissed, 235 U.S. 690, 35 S. Ct. 205, 59 L. Ed. 427 (1914); State v. Twin Falls Canal Co., 27 Idaho 728, 151 P. 1013 (1915).

Proposals.

Proposal was held to amount to a bid. State v. Twin Falls Salmon River Land & Water Co., 30 Idaho 41, 166 P. 220 (1916).

Rights and Franchises.

Term “rights and franchises” means water rights as well as all other rights, including dams, canals, ditches, laterals, etc. State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039 (1911), error dismissed, 235 U.S. 690, 35 S. Ct. 205, 59 L. Ed. 427 (1914); State v. Twin Falls Canal Co., 27 Idaho 728, 151 P. 1013 (1916).

Cited

Hobbs v. Twin Falls Canal Co., 24 Idaho 380, 133 P. 899 (1913); Twin Falls Salmon River Land & Water Co. v. Twin Falls County, 231 F. 769 (D. Idaho 1916); Ireton v. Idaho Irrigation Co., 30 Idaho 310, 164 P. 687 (1917).

RESEARCH REFERENCES

Idaho Law Review.

Am. Jur. 2d.

§ 42-2004. Certified check to accompany proposal.

A certified check for a sum not less than $250 nor more than $2500, as may be determined by the rules of the department, shall accompany each request and proposal, the same to be held as a guaranty of the execution of the contract with the state, in accordance with its terms, by the party submitting such proposal, in case of the approval of the same and the selection of the land by the department, and to be forfeited to the state in case of failure of said parties to enter into a contract with the state in accordance with the provisions of this chapter.

History.

1895, p. 215, ch. 2, § 7; reen. 1899, p. 282, ch. 2, § 7; reen. R.C. & C.L., § 1616; C.S., § 2999; I.C.A.,§ 41-1704.

§ 42-2005. Application for appropriation permit to be filed.

The person, company of persons, association or incorporated company making application to the department of water resources for the selection of lands by the state, shall have filed with the department an application for a permit to appropriate water for the reclamation of the lands described in his request. This application for a permit shall be of a form prescribed by the department of water resources, and shall be accompanied by two (2) copies of a map of the land to be selected, and it shall show accurately the location and dimensions of the proposed irrigation works. The maps of the lands and proposed irrigation works shall be prepared in accordance with the regulations of the department of water resources of the state of Idaho and the rules of the department of the interior.

History.

1895, p. 215, ch. 2, § 8; reen. 1899, p. 282, ch. 2, § 8; reen. R.C. & C.L., § 1617; C.S., § 3000; I.C.A.,§ 41-1705.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Ownership of Permit.

Permit was one of the rights and franchises in which settler had proportionate interest. State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039 (1911), error dismissed, 235 U.S. 690, 35 S. Ct. 205, 59 L. Ed. 427 (1914).

§ 42-2006. Submission of proposal to department.

Immediately upon the receipt of any request and proposal, as designated in section 42-2003[, Idaho Code], it shall be the duty of the department to examine the same and ascertain if it complies with its rules and the regulations of the department of the interior. If it does not, it is to be returned for correction; but, if it does so comply, the department shall examine the same and make a written report, stating whether or not the proposed works are feasible, whether the proposed diversion of the public waters of the state will prove beneficial to the public interest; whether there is sufficient unappropriated water in the source of supply; and whether or not a permit to divert and appropriate water through the proposed works has been approved by the department; whether the capacity of the proposed works is adequate to reclaim the land described; whether or not the proposed cost of construction is reasonable; and whether or not the maps filed in its office comply with the requirements of said department and the regulations of the department of the interior; also whether or not the lands proposed to be irrigated are desert in character and such as may properly be set apart under the provisions of the aforesaid act of congress and the rules and regulations of the department of the interior thereunder.

History.

1895, p. 215, ch. 2, § 9; reen. 1899, p. 282, ch. 2, § 9; modified 1905, p. 131, § 30; compiled and reen. R.C. & C.L., § 1618; C.S., § 3001; I.C.A.,§ 41-1706.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

CASE NOTES

Finality of Determination.

This determination of state engineer (director of the department of water resources) seems to have been intended to be final. State v. Twin Falls Salmon River Land & Water Co., 30 Idaho 41, 166 P. 220 (1916).

Cited

Twin Falls Oakley Land & Water Co. v. Martens, 271 F. 428 (9th Cir. 1921); State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039 (1911).

§ 42-2007. Action by the department on proposal for segregation.

It shall be the duty of the department to satisfy itself as to the financial ability of the applicant to do the things which will be required to be done in the event the application is approved.

In case of approval, the department shall file in the local land office a request for the withdrawal of the land described in said proposal.

No request on which the department of water resources has reported adversely, either as to the water supply, the feasibility of the construction, the cost or capacity of the works or as to the character of the lands sought to be irrigated, shall be approved by the department.

History.

1895, p. 215, ch. 2, § 10; reen. 1899, p. 282, ch. 2, § 10; modified 1905, p. 131, § 30; compiled and reen. R.C., § 1619; am. 1917, ch. 104, § 1, p. 379; reen. C.L., § 1619; C.S., § 3002; I.C.A.,§ 41-1707.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Cited

State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039 (1911); State v. Twin Falls Salmon River Land & Water Co., 30 Idaho 41, 166 P. 220 (1916).

§ 42-2008. Adverse report by department.

In case the department of water resources shall report adversely upon the proposed irrigation works, or where requests and proposals are not approved by the department, the said department shall notify the parties making such proposal of such action and the reasons therefor. The parties so notified shall have sixty (60) days in which to submit a satisfactory proposal; but the department may, at its discretion, extend the time to six (6) months.

History.

1895, p. 215, ch. 2, § 11; reen. 1899, p. 282, ch. 2, § 11; compiled and reen. R.C. & C.L., § 1620; C.S., § 3003; I.C.A.,§ 41-1708.

STATUTORY NOTES

Compiler’s Notes.

§ 42-2009. Contract for construction of reclamation works.

Upon the withdrawal of the land by the department of the interior, it shall be the duty of the department of water resources to enter into a contract with the parties submitting the proposal, which contract shall contain complete specifications of the location, dimensions, character and estimated cost of the proposed ditch, canal or other irrigation works, the amount of water per acre which said works will make available at the water user’s headgate, the price and terms per acre at which such works and perpetual water rights shall be sold to settlers and the price and terms upon which the state is to dispose of the lands to settlers. This contract shall not be entered into on the part of the state until the withdrawal of the lands by the department of the interior and the filing of a satisfactory bond on the part of the proposed contractor, which bond shall be in a penal sum equal to five per cent (5%) of the estimated cost of the works, and shall be conditioned for the faithful performance of the provisions of the contract with the state.

Should it appear at any time, in the judgment of the department of water resources, that the water supply of the party or parties with which such contract had been made, is inadequate to properly and sufficiently irrigate the lands so proposed in said contract to be irrigated, or that water rights have been sold to the full carrying capacity of the proposed ditch, canal or other irrigation works, or that water rights have been sold by said party or parties to the full amount or in excess of the actual appropriation of water made by said party or parties or to the full amount or in excess of the supply of water made actually available by said parties, then in that event the department of water resources shall have the right to enter an order forbidding said parties from making any further or additional sales of water rights or of shares of stock in any company representing or evidencing water rights, and after the entry of such order all further or additional sales of such water or water rights, shares of stock and contracts to sell the same made by said party or parties shall be null and void, and said department of water resources shall have the power to refuse to issue entryman’s certificates thereon. This section shall apply to contracts heretofore made as well as contracts hereafter to be made by the department.

History.

1895, p. 215, ch. 2, § 12; reen. 1899, p. 282, ch. 2, § 12; reen. R.C., § 1621; am. 1917, ch. 104, § 1, p. 379; reen. C.L., § 1621; am. 1919, ch. 70, §§ 1, 2, p. 247; C.S., § 3004; I.C.A.,§ 41-1709.

CASE NOTES

Character of work. Construction of contract.

Availability of Water.

To make water available under provisions of a Carey Act construction contract means to bring it to the half mile point from a quarter section of such land, measured in a direct line, so that water can be taken from company lateral to point upon the land to be irrigated under gravity system. Collins v. Twin Falls North Side Land & Water Co., 28 Idaho 1, 152 P. 200 (1915).

Under contract with construction company, duty devolved upon settler to construct properly his own service ditch from the lateral of construction company and to furnish one headgate into his service ditch, and company was not liable for nondelivery prior to construction of settler’s service lateral. Collins v. Twin Falls North Side Land & Water Co., 28 Idaho 1, 152 P. 200 (1915).

Bond.

Bond could not be resorted to for the purpose of reimbursing individual locators for damages sustained by failure to complete works, but must be resorted to by state for the benefit of all locators on the project. Sauve v. Title Guar. & Sur. Co., 29 Idaho 146, 158 P. 112 (1916).

Provisions other than those contained in this section may be inserted in the contract but liability on bond is limited to statutory provisions. Sauve v. Title Guar. & Sur. Co., 29 Idaho 146, 158 P. 112 (1916).

Capacity of State.

State in dealing with Carey Act project acts by virtue of its sovereignty and not in a proprietary capacity. State v. Twin Falls Salmon River Land & Water Co., 30 Idaho 75, 166 P. 232 (1916).

Character of Work.

Under provisions of statute, completing of said works is supervised by state and ultimately the works must be turned over to settlers, thereby providing a kind of municipal ownership. State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039 (1911), error dismissed, 235 U.S. 690, 35 S. Ct. 205, 59 L. Ed. 427 (1914); City of Twin Falls v. Harlan, 27 Idaho 769, 151 P. 1191 (1915).

Mere construction and operation of Carey Act ditch could not be a nuisance, as it was not only permitted by law, but was the result of contract with state land board under the statute. City of Twin Falls v. Harlan, 27 Idaho 769, 151 P. 1191 (1915).

Construction of Contract.

Laws of state applicable to appropriation and use of water were controlling and all parties contracting under the Carey Act did so with at least the presumed knowledge of such laws. Twin Falls Salmon River Land & Water Co. v. Caldwell, 242 F. 177 (9th Cir. 1917). Contract contemplated was held to be a construction contract only, although it contained provisions not usually contained in Carey Act construction contracts. Sauve v. Title Guar. & Sur. Co., 29 Idaho 146, 158 P. 112 (1916).

Determination of Cost.

Amendment to the federal Carey Act, in fixing amount of lien upon land to be created by state at “the actual cost of reclamation and reasonable interest thereon from date of reclamation until disposed of to actual settlers,” contemplates determination of such cost by state, and that, in a contract between state and corporation for construction of irrigation works, such cost must be estimated or determined in advance as a basis for the contract. Idaho Irrigation Co. v. Pew, 26 Idaho 272, 141 P. 1099 (1914).

In a contract between a Carey Act irrigation company and settler, in which, by reference, terms and conditions of contract between state and irrigation company were assented to, and price of water rights was fixed upon the basis of the estimated cost of the works contained in state contract, both company and settler were estopped from afterward raising question as to whether such estimated cost was the actual cost of the works. Idaho Irrigation Co. v. Pew, 26 Idaho 272, 141 P. 1099 (1914).

Foreclosure of Lien.

Where, under Carey Act contract, it appeared that less land could be irrigated than was expected at first, and limits of area had been reduced, all contract holders were necessary parties to suit to foreclose lien on water rights. Commonwealth Trust Co. v. Smith, 273 F. 1 (9th Cir. 1921), aff’d, 266 U.S. 152, 45 S. Ct. 26, 69 L. Ed. 219 (1924).

Liability of Company for Damages.

Where construction company, while operating system, failed to furnish water in accordance with its contract, it was liable for damages sustained by settler. Hanes v. Idaho Irrigation Co., 21 Idaho 512, 122 P. 859 (1912).

Where construction company changed location of proposed canal, it was liable in damages to settler injured thereby. Sommerville v. Idaho Irrigation Co., 21 Idaho 546, 123 P. 302 (1912).

Mechanics’ Lien.

Irrigation works constructed under the Carey Act are subject to the mechanics’ lien law of Idaho, particularly§ 45-501. Continental & Com. Trust & Sav. Bank v. Corey Bros. Constr. Co., 208 F. 976 (9th Cir. 1913).

In a suit to enforce mechanics’ liens on an irrigation system, the trustees under trust deeds securing bonds on the system were entitled to defend and claim priority over the mechanics’ liens on the ground that the dam constructed was a failure, owing to the fault of the construction company in that it so far departed from the terms and specifications of its contract with the irrigation company as to make the dam a useless structure. Continental & Com. Trust & Sav. Bank v. Corey Bros. Constr. Co., 208 F. 976 (9th Cir. 1913).

Overselling Water Supply.

In a suit to enforce mechanics’ liens on an irrigation system by the trustees under trust deeds securing bonds on the system, such trustees were bound by the construction placed upon the doubtful or uncertain provisions of the contract by the parties thereto, and by any waiver by the irrigation company of strict performance of the contract. Continental & Com. Trust & Sav. Bank v. Corey Bros. Constr. Co., 208 F. 976 (9th Cir. 1913). Overselling Water Supply.

Where a corporation which had contracted with the state of Idaho for the construction of an irrigation system made contracts with settlers which totaled in excess of the capacity of the system, the court, under the circumstances of the case, could not scale all contracts down proportionately both in the amount of water and the consideration to be paid therefor, but the court could and did restrain the company from making any contracts or waiving any right of forfeiture of existing ones, and also restrained it, together with the other defendants, from collecting or attempting to enforce payments upon the contracts until the settlers had been provided with the water supply contracted for, or were given trustworthy assurance that it would be provided. Caldwell v. Twin Falls Salmon River Land & Water Co., 225 F. 584 (D. Idaho 1915).

Rotation in Use of Water.

Although there is no statutory provision for rotation in the use of water, contracts providing for rotation will be enforced by the courts. State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039 (1911), error dismissed, 235 U.S. 690, 35 S. Ct. 205, 59 L. Ed. 427 (1914); Twin Falls Salmon River Land & Water Co. v. Caldwell, 242 F. 177 (9th Cir. 1917).

Status of Company.

Company entering into this contract with state was related to the undertaking simply as construction company, whose duty it was under the provisions of the state law and terms of the contract to build a canal under supervision of state, money spent in such construction being secured by land which canal was designed to irrigate. State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039 (1911), error dismissed, 235 U.S. 690, 35 S. Ct. 205, 59 L. Ed. 427 (1914).

In the operation of said canal and furnishing of water, construction company was a quasi-public service corporation, and, under the state contract, construction company was bound to construct its works in accordance with said contract. Hanes v. Idaho Irrigation Co., 21 Idaho 512, 122 P. 859 (1912).

RESEARCH REFERENCES

Am. Jur. 2d.

§ 42-2010. Contract for construction — Limitations on terms.

No contract shall be made by the department which requires a greater time than five (5) years for the construction of the works, but such time may be extended by the department for a period not exceeding three (3) years. All contracts shall state that the work shall begin within six (6) months from date of contract; that at least one-tenth (1/10) of the construction work shall be completed within two (2) years from the date of said contract and that the construction shall be prosecuted diligently and continuously to completion. A failure to complete the works within the time required by the contract, or an extension thereof as herein provided, shall forfeit to the state all rights under the same.

This section shall apply to contracts heretofore made as well as to contracts hereafter to be made by the department.

History.

1895, p. 215, ch. 2, § 13; reen. 1899, p. 282, ch. 2, § 13; reen. R.C., § 1622; am. 1911, ch. 35, §§ 1, 2, p. 75; reen. C.L., § 1622; C.S., § 3005; I.C.A.,§ 41-1710.

CASE NOTES

Bond.

Remedy created by this provision was exclusive, and obligor of bond could insist that the statutory remedy be followed. Sauve v. Title Guar. & Sur. Co., 29 Idaho 146, 158 P. 112 (1916).

§ 42-2011. Forfeiture of contract for contractor’s default — Sale of project.

Upon the failure of any parties having contracts with the state for the reclamation of lands segregated under the Carey Act to commence the construction of such ditches, canals or other irrigation works within the time specified by the contract or to perform all of the requirements of said contract within the time specified in said contract with the state to the satisfaction of the director of the department of water resources, it shall be the duty of the director to give such parties written notice of such failure, and if, after a period of sixty (60) days from the sending of such notice, they shall have failed to proceed with the work or to conform to the provisions of their contract with the state, the bond and contract of such parties and all works constructed thereunder shall be at once and thereby forfeited to the state.

It shall be the duty of the director at once so to declare and give notice once each week for a period of four (4) weeks in some newspaper of general circulation in the county in which the work is situated and in one (1) newspaper at the state capital in like manner and for a like period of the forfeiture of said contract, and that upon a fixed day proposals will be received at the office of the department for the purchase of ditches, canals, other irrigation works, water rights and all other rights, privileges and benefits obtained under the provisions of the said contract and for the performance of the provisions of said contract with the state. The time for receiving said bids shall be at least sixty (60) days subsequent to the issuing of the last notice of forfeiture. Upon the request of any bidder the director shall specify in particular the needful things to be done in order to accomplish the substantial and satisfactory performance of said contract, and the director may require good and sufficient bond for such performance before confirming such sale. The money received by the department from the sale under the provisions of this section shall first be applied to the expenses incurred by the state in the forfeiture and disposal and to satisfying the bond, and the surplus, if any exists, shall be paid into the Carey Act trust fund created under section 42-2018, Idaho Code.

History.

1895, p. 215, ch. 2, § 14; reen. 1899, p. 282, ch. 2, § 14; modified 1905, p. 131, § 30; compiled and reen. R.C., § 1623; am. 1917, ch. 104, p. 380; compiled and reen. C.L., § 1623; C.S., § 3006; I.C.A.,§ 41-1711; am. 1974, ch. 164, § 2, p. 1397; am. 2001, ch. 183, § 18, p. 613.

STATUTORY NOTES

Federal References.

The Carey Act, referred to near the beginning and near the end of this section, is codified as 43 U.S.C.S. § 641.

CASE NOTES

Duty of Department.

Upon failure of construction company to complete works according to contract, it was the duty of land board to follow provisions of this statute. Sauve v. Title Guar. & Sur. Co., 29 Idaho 146, 158 P. 112 (1916).

Forfeiture of Contract by Department.

Duty of reclamation commissioner (now director of department of water resources) to forfeit Carey Act reclamation contract on failure of party to perform all requirements of contract held not ministerial so as to authorize mandamus to compel performance thereof. Logan v. Carter, 49 Idaho 393, 288 P. 424 (1930).

Members of state land board (department of water resources) were without authority to forfeit Carey Act reclamation contract. Logan v. Carter, 49 Idaho 393, 288 P. 424 (1930).

Cited

City of Twin Falls v. Harlan, 27 Idaho 769, 151 P. 1191 (1915); State v. Twin Falls Salmon River Land & Water Co., 30 Idaho 41, 166 P. 220 (1916); Twin Falls Salmon River Land & Water Co. v. Twin Falls County, 231 F. 769 (D. Idaho 1916).

§ 42-2012. State not to be responsible for work.

Nothing in this chapter shall be construed as authorizing the director to obligate the state to pay for any work constructed under any contract, or to hold the state in any way responsible to settlers for the failure of contractors to complete the work according to the terms of their contracts with the state.

History.

1895, p. 215, ch. 2, § 15; reen. 1899, p. 282, ch. 2, § 15; reen. R.C. & C.L., § 1624; C.S., § 3007; I.C.A.,§ 41-1712; am. 1974, ch. 164, § 3, p. 1397.

CASE NOTES

Status of Construction Company.

A Carey Act construction company was not a construction or selling agent of the state after the foreclosure of its lien on land for failure of the entryman to pay the contract price. North Side Canal Co. v. Idaho Farms Co., 60 Idaho 749, 96 P.2d 232 (1939).

§ 42-2013. Entry, settlement, and cultivation of lands — Publication of notice of opening — Preference to ex-service persons.

Immediately upon the withdrawal of any land for the state by the department of the interior, and the inauguration of work by the contractor, it shall be the duty of the director of the department of water resources, by publication once each week in some newspaper of the county in which said lands are situated, and one (1) newspaper at the state capital, for a period of four (4) weeks, to give notice that said land, or any part thereof as the director in his discretion may deem is for the best interests of the state, is open for settlement, the price for which said land will be sold to settlers by the state and the contract price at which settlers can purchase water rights or shares in such works provided, however, that in said notice two (2) dates of opening shall be stated, the first of which shall be at least thirty (30) days prior to the second. Said notice shall state that at the first opening only ex-service persons may participate in the entry and selection of land, and that on the day of opening all those present will be allowed to make a selection by lot, the method of drawing by lot to be determined by the director of the department of water resources; and that said notice shall state that due proof that they are ex-service persons, will be required of all applicants for the entry and selection of land at the first opening, and shall state what proof will be required.

For the purpose of any drawing and/or selection of land for entry under this section or section 42-2013A, Idaho Code, a husband and wife shall be allowed to join their entries and receive a total of three hundred twenty (320) acres in one drawing or selection. A spouse of an ex-service person, whether or not an ex-service person, shall be considered an ex-service person for the purpose of joining entries under the ex-service person preference granted in this act.

History.

1899, p. 282, ch. 2, § 16; am. 1901, p. 191, § 6; reen. R.C. & C.L., § 1625; C.S., § 3008; am. 1921, ch. 156, § 1, p. 348; I.C.A.,§ 41-1713; am. 1974, ch. 164, § 4, p. 1397.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” at the end of the section refers to S.L. 1974, chapter 164, which is codified as§§ 42-2003, 42-2011 to 42-2014, 42-2019, 42-2029, 42-2038, and 42-2040. The reference probably should be to “this chapter,” being chapter 20, title 42, Idaho Code.

CASE NOTES

Notice.

Publication of notice was one step of procedure to consummate purposes of Carey Act, but had nothing to do with final question as to actual reclamation, cultivation, and settlement of land. Evans v. Swendsen, 34 Idaho 290, 200 P. 136 (1921).

Statute contains no express authority to cancel or withdraw notice when once it is given, nor is such authority implied. Evans v. Swendsen, 34 Idaho 290, 200 P. 136 (1921).

Cited

State v. Twin Falls Salmon River Land & Water Co., 30 Idaho 41, 166 P. 220 (1916).

RESEARCH REFERENCES

Am. Jur. 2d.

§ 42-2013A. Preference.

Any other provision of this chapter notwithstanding, any person or group of persons proposing a project as provided in section 42-2003, Idaho Code, who intend to apply for settlement and entry of the lands for which the project is proposed, shall be given the right of first selection and entry before any lands in the project are opened by the director for settlement as provided in section 42-2013, Idaho Code. This section shall apply to any lands for which a project is proposed regardless of the number of acres proposed to be included.

History.

I.C.,§ 42-2013A, as added by 1974, ch. 164, § 5, p. 1397.

RESEARCH REFERENCES

Am. Jur. 2d.

§ 42-2014. Application to enter — Preference to ex-service person — “Ex-service person” defined.

Any citizen of the United States or any person having declared his intention to become a citizen of the United States may make application under oath, to the department of water resources, to enter any of said land in an amount not to exceed the maximum number of acres for which such person is permitted to apply by federal law for any one (1) person: provided, that ex-service persons as herein defined shall have a thirty (30) day preference right of entry upon any and all lands opened for entry by the state of Idaho under this act; and such application shall set forth that the person desiring to make such entry does so for the purpose of actual reclamation, cultivation and settlement in accordance with the act of congress and the laws of this state relating thereto, and that the applicant has never received the benefit of the provisions of this chapter to an amount greater than the maximum number of acres for which such person is permitted to apply by federal law, including the number of acres specified in the application under consideration.

Each application shall be accompanied by evidence of the applicant’s ability to meet standards of personal financial responsibility or acceptable personal credit backing or membership in a group as provided in section 42-2003, Idaho Code, and said group shall establish composite financial responsibility and/or acceptable credit. Such standards shall be prescribed by the director by rule and regulation. Such application must be accompanied by a certified copy of a contract for a perpetual water right, made and entered into by the party making application with the person, company or association who has been authorized by the director to furnish water for the reclamation of said lands; and if said applicant has at any previous time entered lands under the provisions of this chapter he shall so state in his application, together with description, date of entry and location of said land. The director shall thereupon file in his office the application and papers relating thereto, and, if allowed, issue a certificate of location to the applicant. All applications for entry shall be accompanied by the payment of five dollars ($5.00) per acre, which shall be paid as a partial payment on the land if the application is allowed; and all certificates when issued shall be recorded in a book to be kept for the purpose. If the application is not allowed, the five dollars ($5.00) per acre accompanying it shall be refunded to the applicant. The director shall dispose of all lands accepted by the state under the provisions of this chapter at a uniform price of ten dollars ($10.00) per acre, half to be paid at the time of entry and the remainder at the time of making final proof by the settler: provided further, that the term ex-service person as used in this act is hereby defined to mean any person who was regularly enlisted, inducted or commissioned, and who served on active duty in any branch of the armed forces of the United States during any period of war recognized by the United States department of veterans affairs for the purpose of awarding federal veterans benefits as may be defined in title 38, U.S. code, chapter 1, section 101(11), and is a citizen of the United States and a bona fide resident of the state of Idaho preceding the date of such opening.

History.

1895, p. 215, ch. 2, § 17; reen. 1899, p. 282, ch. 2, § 17; reen. R.C. & C.L., § 1626; C.S., § 3009; am. 1921, ch. 156, § 2, p. 348; I.C.A.,§ 41-1714; am. 1945, ch. 167, § 1, p. 250; am. 1949, ch. 106, § 1, p. 195; am. 1969, ch. 469, § 5, p. 1346; am. 1974, ch. 164, § 6, p. 1397; am. 1976, ch. 109, § 1, p. 433; am. 1977, ch. 41, § 1, p. 73; am. 1991, ch. 219, § 1, p. 523; am. 1992, ch. 53, § 3, p. 157.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” in the last sentence refers to S.L. 1921, chapter 156, which is codified as§§ 42-2013 an 42-2014.

Effective Dates.

Section 2 of S.L. 1945, ch. 167 declared an emergency. Approved Mar. 16, 1945.

Section 4 of S.L. 1992, ch. 53 declared an emergency. Approved March 19, 1992.

CASE NOTES

Right of Entry.

Where one offered to contest an entry made under the Carey Act, before state board of land commissioners, and said board refused to hear contest on ground that it had extended time in which the law requires entryman to make improvement and irrigation of land entered, contestant could by writ of mandate compel board to hear the contest. Pierson v. Loveland, 16 Idaho 628, 102 P. 340 (1909).

Board had no discretion to refuse to allow entry of person who possessed the statutory qualifications and had complied with the statutory conditions precedent to the exercise of the right, and in case of such refusal mandamus would lie. Furbee v. Alexander, 31 Idaho 738, 176 P. 97 (1918).

Water Rights.

Corporation constructing Carey Act irrigation system was not taxable as to water rights sold or unsold. Twin Falls Salmon River Land & Water Co. v. Twin Falls County, 231 F. 769 (D. Idaho 1916), modified on other grounds, 242 F. 177 (9th Cir. 1917).

Water right, being exempt from taxation, could not be included in assessment of land to which it was appurtenant. Bennett v. Twin Falls North Side Land & Water Co., 27 Idaho 643, 150 P. 336 (1915).

When Taxable.

One who had acquired beneficial ownership of land and was not excluded from its enjoyment could not be permitted to use fact that naked legal title remained in government to avoid his just share of state taxation. Bothwell v. Bingham County, 237 U.S. 642, 35 S. Ct. 702, 59 L. Ed. 1157 (1915). When final proof had been made and accepted, lands were taxable. Bothwell v. Bingham County, 24 Idaho 125, 132 P. 972 (1913), aff’d, 237 U.S. 642, 35 S. Ct. 702, 59 L. Ed. 1157 (1915).

As provided in the act of congress all moneys received by the department of water resources from the sale of lands selected under the provisions of this chapter shall be deposited with the state treasurer, and such sums as may be necessary shall be available for the payment of the expenses of the department of water resources incurred in carrying out the provisions of this chapter.

Such expenses shall be paid by the state controller in the manner provided by law, upon vouchers duly approved by the state board of examiners, for the work performed under the direction of the department of water resources; and any balance remaining over and above the expense necessary to carry out the provisions of this chapter shall constitute a trust fund in the hands of the state treasurer to be used only for the reclamation of other arid lands; provided, however, that any funds in the hands of the state treasurer in excess of fifty thousand dollars ($50,000) may be loaned by the department of finance in the manner and form prescribed by the laws of this state for the loan of school funds; provided, also, that said department of finance shall have and is hereby granted power and authority to sell, transfer or assign said securities, or any part thereof, whenever said department of water resources shall determine that the Carey Act fund has use for, and needs, the money aforesaid in carrying out the purposes of the trust imposed upon the state by the laws of the state or United States. No sale, transfer or assignment, aforesaid, shall be made by said department of finance for less than the face value and accrued interest of said securities.

History.

1895, p. 215, ch. 2, § 18; reen. 1899, p. 282, ch. 2, § 18; am. R.C., § 1627; am. 1911, ch. 219, § 1, p. 701; C.L., § 1627; C.S., § 3013; I.C.A.,§ 41-1718; am. 1969, ch. 466, § 6, p. 1326; am. 1994, ch. 180, § 84, p. 420.

STATUTORY NOTES

Cross References.

Continuing appropriation of Carey Act trust fund,§ 42-2704.

Funds accumulated under this section available for cooperative work with United States reclamation service,§§ 42-2703 to 42-2705.

State board of examiners,§ 67-2001 et seq.

State controller,§ 67-1001 et seq.

State treasurer,§ 67-1201 et seq.

Federal References.

The Carey Act referred to in this section is found at 43 U.S.C.S. § 641.

Compiler’s Notes.

Effective Dates.

Section 241 of S.L. 1994, ch. 180 provided that such act should become effective on and after the first Monday in January, 1995 [January 2, 1995] if the amendment to the Constitution of Idaho changing the names of the state auditor to state controller [1994 S.J.R. No. 109, p. 1493] was adopted at the general election held on November 8, 1994. Since such amendment was adopted, the amendment to this section by § 84 of S.L. 1994, ch. 180 became effective January 2, 1995.

§ 42-2019. Proof of reclamation and settlement — Patent.

Within one (1) year after any person, company, or persons, association or incorporated company authorized to construct irrigation works under the provisions of this chapter shall have notified the settlers under such works that they are prepared to furnish water for the full irrigation season under the terms of their contract with the state, which notice, however, must first have been served upon the director of the department of water resources, who must cause an investigation of said works to be made, which shall include a report thereon by an engineer of the department; the said settler shall cultivate and reclaim not less than one-sixteenth (1/16) part of the land filed upon, and within two (2) years after the said notice, the settler shall have actually irrigated and cultivated not less than one-eighth (1/8) of the land filed upon, and within three (3) years from the date of said notice, the settler, or if the settler be in the armed forces of the United States at such time, then any person designated by him, shall appear before the director of the department of water resources, a judge or clerk of any court of record within the state, and make final proof of reclamation, settlement and occupation, which proof shall embrace evidence that he is the owner of shares in the works which entitle him to a water right for his entire tract of land sufficient in volume for the complete irrigation and reclamation thereof; that he has been an actual settler thereon and has cultivated and irrigated not less than one-eighth (1/8) part of said tract; and such further proof, if any, as may be required by the regulations of the department of the interior and the department of water resources of the state of Idaho as promulgated by the director: provided, that any settler, after having made application for entry on such land, or acquired the entry by assignment before entering the service, enters the armed forces of the United States as defined as ex-service person in section 42-2014, Idaho Code, may deduct the actual time he was in such service from the time he would otherwise be required to be an actual settler thereon, and provided further, that it shall not be necessary for such ex-service person to show proof of having actually cultivated or irrigated any portion of such land or placed any improvements thereon if such settler has been in actual service in the armed forces as herein defined for one (1) year, or more, or (who) has been honorably discharged from the service, after having made application for entry, or acquired the assignment thereof before entering the service.

All proof so received shall be submitted to the director of the department of water resources, and shall be accompanied by the final payment for said land, and, upon approval of the same by the director, the settler shall be entitled to his patent. If the land shall not be embraced in any patent theretofore issued to the state by the United States, the proofs shall be forwarded to the secretary of the interior, with the request that a patent to said lands be issued to the state. When the works designed for the irrigation of lands under the provisions of this chapter shall be so far completed as to actually furnish an ample supply of water in a substantial ditch or canal to reclaim any particular tract or tracts of such lands, the state of Idaho shall, through the department of water resources, make proof of such fact and shall apply for a patent to such lands in the manner provided in the regulations of the department of the interior.

History.

1895, p. 215, ch. 2, § 19; reen. 1899, p. 282, ch. 2, § 19; am. 1901, p. 191, § 7; am. 1905, p. 95, § 1; am. R.C., § 1628; am. 1911, ch. 201, § 1, p. 666; reen. C.L., § 1628; C.S., § 3014; I.C.A.,§ 41-1719; am. 1945, ch. 188, § 1, p. 294; am. 1974, ch. 164, § 7, p. 1397.

STATUTORY NOTES

Cross References.

Issuance of patent,§ 42-2022.

Compiler’s Notes.

The word “who” in the second proviso of the first paragraph was placed in parentheses by the compiler as surplusage.

Effective Dates.

Section 2 of S.L. 1945, ch. 188 declared an emergency. Approved Mar. 19, 1945.

CASE NOTES

Accrual of Annual Share of Water.

Rule of corporation operating water project to the effect that when user had not used his allotment at end of the season he was to be credited with such portion and the following spring, if the reservoir was not filled, an amount not to exceed one third his entire right less 40 per cent for seepage would be delivered to him in addition to his regular share was valid. Rayl v. Salmon River Canal Co., 66 Idaho 199, 157 P.2d 76 (1945).

Extension of Time.

State board of land commissioners had no power or authority under the law to extend time to entryman in which to place required improvements upon and irrigate land entered by him. Pierson v. Loveland, 16 Idaho 628, 102 P. 340 (1909).

Issuance of Patent.

Action of the United States land department in approving plan of irrigation adopted by state under Carey Act and segregating land was not conclusive determination that state was entitled to land as whether or not state had actually furnished ample supply of water for reclamation of particular tract in order to entitle it to patent was a question of fact to be determined by the department. Twin Falls Salmon River Land & Water Co. v. Caldwell, 242 F. 177 (9th Cir. 1917).

Government issues patent to state for segregated land shown to have sufficient water to be reclaimed, and state holds such title in trust for those who settle upon, cultivate and reclaim land. Bothwell v. Bingham County, 24 Idaho 125, 132 P. 972 (1913), aff’d, 237 U.S. 642, 35 S. Ct. 702, 59 L. Ed. 1157 (1915).

Notice.

Under provisions of this section, it was made the duty of Carey Act irrigation company to notify settler when water was ready for delivery, in order that settler might improve his land and make reclamation required in order to secure title from state to his land. Hanes v. Idaho Irrigation Co., 21 Idaho 512, 122 P. 859 (1912).

Giving of the notice that the company was prepared to furnish water served to fix time within which settler must cultivate and reclaim his land, and also fixed the time, if water was furnished, when interest began on deferred payments on his water contract, and it was the duty of construction company to furnish water after it had given notice. Hanes v. Idaho Irrigation Co., 21 Idaho 512, 122 P. 859 (1912).

Taxation.

Carey Act land was taxable when patent issued from government to state. Bothwell v. Bingham County, 24 Idaho 125, 132 P. 972 (1913), aff’d, 237 U.S. 642, 35 S. Ct. 702, 59 L. Ed. 1157 (1915).

Water right, being exempt from taxation, could not be included in an assessment of land to which it was appurtenant. Bennett v. Twin Falls North Side Land & Water Co., 27 Idaho 643, 150 P. 336 (1915).

States have no right to define and tax as property the interest of entryman upon public lands, before equitable title passes. Leney v. Twin Falls County, 40 Idaho 600, 236 P. 531 (1925).

Title of Water User.

A water user on a Carey Act project has fee simple title to the land and water and the only restriction on his title is that he must apply the water to a beneficial use and may not waste it. In re Robinson, 61 Idaho 462, 103 P.2d 693 (1940).

Use of Water.

An owner of land and water rights under a Carey Act project could change the place of use of such water, if it could be done without material injury to other appropriators. In re Robinson, 61 Idaho 462, 103 P.2d 693 (1940).

Where individual user of water under the Carey Act allowed portions of his land to lie idle and sold, leased, or used his water on other lands, in absence of intent to abandon his right, he did not forfeit or lose same. Rayl v. Salmon River Canal Co., 66 Idaho 199, 157 P.2d 76 (1945).

Cited

Nelson Bennett Co. v. Twin Falls Land & Water Co., 14 Idaho 5, 93 P. 789 (1908); State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039 (1911); McElroy v. Helmer, 38 Idaho 327, 222 P. 290 (1923); Sallee v. Commonwealth Trust Co., 8 F.2d 227 (9th Cir. 1925).

RESEARCH REFERENCES

Am. Jur. 2d.

§ 42-2020. Settlement after notice of availability of water.

Where land was unentered at the time that the person, company or corporation authorized to construct irrigation works under the provisions of this chapter gave notice to the settlers under such works that they were prepared to furnish water under the term of their contract with the state, then such settlers or any new entryman entering land after such notice shall have the same time in which to make cultivation, proof and reclamation as is provided in section 42-2019[, Idaho Code], that is to say, that the time shall start from the date of entry instead of from the date of the notice given.

History.

R.C., § 1628a, as added by 1913, ch. 125, § 1, p. 472; reen. C.L., § 1628a; C.S., § 3015; I.C.A.,§ 41-1720.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

§ 42-2021. Final proof after death of entryman.

In all cases where lands have been entered under the provisions of section 42-2014[, Idaho Code,] where entryman or his assignee has died prior to making final proof of reclamation, settlement and occupation, proof of reclamation may be made by an executor, administrator, heir or devisee, and proof of settlement may be made by such person or persons, or by an agent thereof. Any such entry may be devised or shall descend as other real estate.

History.

1911, ch. 14, § 1, p. 30; reen. C.L., § 1628b; C.S., § 3016; I.C.A.,§ 41-1721.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

CASE NOTES

Taxation.

States have no right to define and tax as property, interest of entryman upon public lands before, equitable title passes. Leney v. Twin Falls County, 40 Idaho 600, 236 P. 531 (1925).

§ 42-2022. Issuance of patent.

Upon the issuance of a patent to any lands by the United States to the state, notice shall be forwarded to the settler upon such land. It shall be the duty of the department of water resources to issue a patent to said lands from the state to the settler.

History.

1895, p. 215, ch. 2, part of § 20; reen. 1899, p. 282, ch. 2, § 20; reen. R.C. & C.L., § 1629; C.S., § 3017; I.C.A.,§ 41-1722.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Conclusiveness of Decision of Federal Land Department.

Decision of federal land department in issuing patent to state was not conclusive in suit to foreclose lien for water rights furnished to patented lands, where other settlers on unpatented lands held similar water contracts, resulting in patented lands not receiving their full supply. Twin Falls Oakley Land & Water Co. v. Martens, 271 F. 428 (9th Cir.), cert. denied, 257 U.S. 637, 42 S. Ct. 49, 66 L. Ed. 410 (1921).

RESEARCH REFERENCES

Am. Jur. 2d.

§ 42-2023. Lands eliminated from project — Repayment of fees, commissions, and purchase moneys — Repayment upon cancellation of entry.

In all cases where it shall, upon due proof being made, appear to the satisfaction of the director of the department of water resources that persons have made entry under what is commonly known as the Carey Act Laws of the state of Idaho, and have paid to the state of Idaho any fees, commissions or purchase moneys as required by the laws of the state of Idaho relating to Carey Act entries, which entries were, and the lands embraced in such entries have been, by order of the state board of land commissioners, the director of the department of water resources, or final decree of a court of competent jurisdiction, eliminated from the Carey Act project or segregation of which it was a part, and such order of elimination or judgment is based upon the ground that the water supply was deficient, and the entry is canceled or relinquished, the treasurer of the state of Idaho is authorized to repay to such persons or their legal representatives the fees, commissions and purchase moneys so paid by them, upon proper showing and presentation of such claim.

History.

1921, ch. 52, § 1, p. 83; I.C.A.,§ 41-1723.

STATUTORY NOTES

Compiler’s Notes.

The name of commissioner of reclamation has been changed to director of the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

§ 42-2024. Manner of repayment.

Such claim shall be paid from the funds herein appropriated by warrant drawn by the state controller upon the treasurer of the state upon allowance of a verified claim by the state board of examiners in the manner provided by law, but no claim shall be allowed except the approval of the director of the department of water resources be indorsed thereon.

History.

1921, ch. 52, § 2, p. 83; I.C.A.,§ 41-1724; am. 1994, ch. 180, § 85, p. 420.

STATUTORY NOTES

Cross References.

State board of examiners,§ 67-2001 et seq.

State controller,§ 67-1001 et seq.

State treasurer,§ 67-1201 et seq.

Compiler’s Notes.

The name of commissioner of reclamation was changed to director of the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 28 (§ 42-1801a).

Effective Dates.

Section 4 of S.L. 1921, ch. 52 declared an emergency.

Section 241 of S.L. 1994, Ch. 180 provided that such act should become effective on and after the first Monday in January, 1995 [January 2, 1995] if the amendment to the Constitution of Idaho changing the names of the state auditor to state controller [1994 S.J.R. No. 109, p. 1493] was adopted at the general election held on November 8, 1994. Since such amendment was adopted, the amendment to this section by § 85 of S.L. 1994, ch. 180 became effective January 2, 1995.

§ 42-2025. Appurtenancy of water rights.

The water rights to all lands acquired under the provisions of this chapter shall attach to and become appurtenant to the land as soon as title passes from the United States to the state.

History.

1895, p. 215, ch. 2, part of § 20; reen. 1899, p. 282, ch. 2, § 20; reen. R.C., § 1629; reen. C.L., § 1629a; C.S., § 3018; I.C.A.,§ 41-1725.

CASE NOTES

Attachment Includes Water.

Levy of writ of attachment upon land included within the writ the water right which was appurtenant thereto, although not mentioned in the levy. Bothwell v. Keefer, 53 Idaho 658, 27 P.2d 65 (1933).

Certificate Under Carey Act.

Certificate, in carrying out the whole plan, represented water right sold to settler and dedicated to his land, and of which he was the beneficial owner. Leland v. Twin Falls Canal Co., 51 Idaho 204, 3 P.2d 1105 (1931).

Construction of Section.

This section does not have the effect of making the water right an inseparable appurtenance of the land. Sanderson v. Salmon River Canal Co., 34 Idaho 303, 200 P. 341 (1921), appeal dismissed, 260 U.S. 755, 43 S. Ct. 94, 67 L. Ed. 497 (1922).

Injunction and Foreclosure.

Injunction against further sales because water supply has been exhausted attaches to water rights acquired by foreclosure before filing of lis pendens in injunction suit. Idaho Irrigation Co. v. Gooding, 265 U.S. 518, 44 S. Ct. 618, 68 L. Ed. 1157 (1924).

Lien on appurtenant right is not subject to foreclosure by assignee of canal company by pledge sale. Leland v. Twin Falls Canal Co., 51 Idaho 204, 3 P.2d 1105 (1931).

Nature of Appurtenancy.

This section does not make water right inseparable appurtenance to land. Bennett v. Twin Falls North Side Land & Water Co., 27 Idaho 643, 150 P. 336 (1915); Sanderson v. Salmon River Canal Co., 34 Idaho 145, 199 P. 999 (1921); Tapper v. Idaho Irrigation Co., 36 Idaho 78, 210 P. 591 (1922); Strong v. Twin Falls Canal Co., 44 Idaho 427, 258 P. 173 (1927).

In absence of any showing of separation, water right is an appurtenance to land to which it was dedicated, and is part of that property. Leland v. Twin Falls Canal Co., 51 Idaho 204, 3 P.2d 1105 (1931).

That appurtenant right may be transferred to other lands does not make it less a complement to the land. Leland v. Twin Falls Canal Co., 51 Idaho 204, 3 P.2d 1105 (1931).

Property Right.

Water right is a distinct property right from land on which it is used; and, being exempt from taxation, it cannot be included in an assessment of such land; hence, tax deed transferring title to land does not transfer water right, at least where payment has not been made for water right. Bennett v. Twin Falls North Side Land & Water Co., 27 Idaho 643, 150 P. 336 (1915).

Lessee of state’s school lands formerly held by United States, who initiates water rights, is entitled thereto as his property as against owner of land. First Sec. Bank v. State, 49 Idaho 740, 291 P. 1064 (1930).

Water right is a property right. First Sec. Bank v. State, 49 Idaho 740, 291 P. 1064 (1930).

Realty.

Water right has all attributes of real estate, and right of entryman to particular land to which water right is appurtenant, in effect, constitutes purchase of realty, although title to land is deraigned from government and water right acquired from state. Tapper v. Idaho Irrigation Co., 36 Idaho 78, 210 P. 591 (1922).

While shares of water stock may be personalty, the water right which such shares control is real property. Bothwell v. Keefer, 53 Idaho 658, 27 P.2d 65 (1933).

Sale.

Owner of water right by purchase or original appropriation may sell water right separate and apart from his land. Sanderson v. Salmon River Canal Co., 34 Idaho 303, 200 P. 341 (1921), appeal dismissed, 260 U.S. 755, 43 S. Ct. 94, 67 L. Ed. 497 (1922).

Cited

Twin Falls Salmon River Land & Water Co. v. Caldwell, 242 F. 177 (9th Cir. 1917); Andrews v. North Side Canal Co., 52 Idaho 117, 12 P.2d 263 (1932).

RESEARCH REFERENCES

Am. Jur. 2d.

§ 42-2026. Lien for purchase price of water right.

Any person, company or association, furnishing water for any tract of land, shall have a first and prior lien on said water right and land upon which said water is used, for all deferred payments for said water right; said lien to be in all respects prior to any and all other liens created or attempted to be created by the owner and possessor of said land; said lien to remain in full force and effect until the last deferred payment for the water right is fully paid and satisfied according to the terms of the contract under which said water right was acquired.

History.

1895, p. 215, ch. 2, part of § 20; reen. 1899, p. 282, ch. 2, § 20; reen. R.C., § 1629; reen. C.L., § 1629c; C.S., § 3019; I.C.A.,§ 41-1726.

STATUTORY NOTES

Cross References.

Lien for maintenance or rental,§ 42-906.

CASE NOTES

Construction.

Lien of this section inured to benefit of Carey Act company, or to bondholders furnishing money for construction by such company. Brown v. Portneuf-Marsh Valley Irrigation Co., 5 F.2d 895 (9th Cir. 1925), aff’d, 274 U.S. 630, 47 S. Ct. 692, 71 L. Ed. 1243 (1927).

Insofar as land is concerned, lien must be subject to limitations of the congressional act; but the national act apparently recognizes right of state to control the disposition of its public waters, and purchaser of water right, under a Carey Act project, may so contract as to eventually result in a lien being created upon all the property rights that he acquires. Idaho Irrigation Co. v. Pew, 26 Idaho 272, 141 P. 1099 (1914).

Cost of Reclamation.

Amendment to federal Carey Act in fixing amount of lien upon land to be created by state at the actual cost of reclamation and reasonable interest thereon from the date of reclamation until disposed of to actual settlers contemplates determination of such cost by state. Idaho Irrigation Co. v. Pew, 26 Idaho 272, 141 P. 1099 (1914). In contract between Carey Act irrigation company and settler in which price of water rights was fixed upon basis of the estimated cost of the works contained in the state contract, both company and settler were estopped from afterward raising the question as to whether such estimated cost was the actual cost of the works. Idaho Irrigation Co. v. Pew, 26 Idaho 272, 141 P. 1099 (1914).

Carey Act company’s remuneration was limited to the actual cost of construction and the necessary expense of reclamation and reasonable interest thereon. Idaho Irrigation Co. v. Lincoln County, 28 Idaho 98, 152 P. 1058 (1915).

Extent of Lien.

Settlers held contracts and land subject to lien given by statute. Twin Falls Salmon River Land & Water Co. v. Caldwell, 242 F. 177 (9th Cir. 1917).

The act of a construction company under a Carey Act project, in taking over land and water rights where a default had been made by the purchaser, did not free such land and water from the statutory lien of the operating company for water furnished. North Side Canal Co. v. Idaho Farms Co., 107 F.2d 481 (9th Cir. 1939).

Lien extended to all lands in the segregation that could be irrigated to the full extent of the price per acre for which such person, company, or association contracted and agreed to sell water rights. Nelson Bennett Co. v. Twin Falls Land & Water Co., 14 Idaho 5, 93 P. 789 (1908).

Subcontractor could acquire no rights under his lien that did not exist in original contractor, nor deprive water right purchasers of their rights under their water contracts. Craig v. Smith, 33 Idaho 590, 196 P. 1038 (1921).

Foreclosure of Liens.

United States was not necessary party to action by Carey Act construction company to foreclose lien on settler’s interest in a water right. Idaho Irrigation Co. v. Dill, 25 Idaho 711, 139 P. 714 (1914).

When settler defaulted in payment of instalments of principal or interest in accordance with his contract for purchase of water right, construction company should have resorted to the security afforded it by liens created by statute. Adams v. Twin Falls-Oakley Land & Water Co., 29 Idaho 357, 161 P. 322 (1916).

Priorities.

Where there were separate liens for purchase of stock in Carey Act company and for maintenance of project, and each lien set out a stipulation in consideration of the other, priority between such liens must be ascertained from these stipulations. Portneuf-Marsh Valley Canal Co. v. Brown, 274 U.S. 630, 47 S. Ct. 692, 71 L. Ed. 1243 (1927).

Purchase money liens for stock in construction company necessarily had priority in point of time over maintenance liens. Portneuf-Marsh Valley Canal Co. v. Brown, 274 U.S. 630, 47 S. Ct. 692, 71 L. Ed. 1243 (1927). Lien created by mortgage executed by entryman was held superior to lien of construction company under statute, where company did not record its contract with entryman. Ireton v. Idaho Irrigation Co., 30 Idaho 310, 164 P. 687 (1917).

The only liens to which lien of Carey Act contract is superior are those created or attempted to be created by owner of land, and this is not limitation upon power of sovereign to create lien. Continental & Com. Trust & Sav. Bank v. Werner, 36 Idaho 601, 215 P. 458 (1922), appeal dismissed, 264 U.S. 576, 44 S. Ct. 452, 68 L. Ed. 857 (1924).

Statute of Limitations.

This section does not except water contracts from operation of general statute of limitations. Mendini v. Milner, 47 Idaho 439, 276 P. 313 (1929).

When Lien Attaches.

Water contracts did not make deferred payments a lien upon the water rights and land until the water had been made permanently available for the reclamation of the land. Childs v. Neitzel, 26 Idaho 116, 141 P. 77 (1914).

If a company that is seeking to enforce a lien has not made water permanently available to the land in question, and available in sufficient quantities and seasons to comply with the provisions of the contract, such defense will always be open to the settler. Idaho Irrigation Co. v. Pew, 26 Idaho 272, 141 P. 1099 (1914); Columbia Trust Co. v. Eikelberger, 42 Idaho 90, 245 P. 78 (1925).

Under this section, lien is created both against land and water right, but it is not stated when lien attaches. Columbia Trust Co. v. Eikelberger, 42 Idaho 90, 245 P. 78 (1925).

§ 42-2027. Record of water contract.

The contract for the water right upon which the aforesaid lien is founded shall be recorded in the office of the recorder of the county where said land is situate.

History.

1895, p. 215, ch. 2, part of § 20; reen. 1899, p. 282, ch. 2, § 20; am. R.C., § 1629; reen. C.L., § 1629b; C.S., § 3020; I.C.A.,§ 41-1727.

CASE NOTES

§ 42-2031. Record of certificate of sale.

History.

1895, p. 215, ch. 2, part of § 20; reen. 1899, p. 282, ch. 2, § 20; reen. R.C., § 1629; reen. C.L., § 1629k; C.S., § 3028; I.C.A.,§ 41-1735.

CASE NOTES

Liability for Prior Lien.

A Carey Act construction company, after foreclosure of its lien on land for failure of the entryman to pay the contract price and purchase at the foreclosure sale by the construction company, took title to the land and became liable for the prior lien of an operating company for water furnished. North Side Canal Co. v. Idaho Farms Co., 60 Idaho 748, 96 P.2d 232 (1939).

Statutory Lien.

§ 42-2036. Rights of way for canals.

The maps in the office of the department of water resources of the lands selected under the provisions of this chapter shall show the location of the canals or other irrigation works approved in the contract with the department, and all lands filed upon shall be subject to the rights of way of such canals or irrigation works. Each right of way shall embrace the entire width of the canal and such additional width as may be required for its proper operation and maintenance, the width of right of way to be specified in the contracts provided for in this chapter.

History.

1895, p. 215, ch. 2, § 21; reen. 1899, p. 282, ch. 2, § 21; reen. R.C. & C.L., § 1630; C.S., § 3029; I.C.A.,§ 41-1736.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Persons Chargeable with Notice.

One dealing with Carey Act land was chargeable with notice of canal rights of way created by congress and legislature. Schurger v. Mooreman, 20 Idaho 97, 117 P. 122 (1911).

Service Ditches.

This section, though not expressly mentioning service ditches and seeming to refer particularly to the main canals and distributing system, in no way prohibits provision, in contract between the state and land and water company, with reference to rights of way for construction and maintenance of service ditches. McElroy v. Helmer, 38 Idaho 327, 222 P. 290 (1923).

§ 42-2037. Department to prescribe rules — Reports of contractors — Waiver of rules.

The department of water resources shall provide suitable rules for the filing of proposals for constructing irrigation works, and for the entry of and payment for the land by settlers, and for the forfeiting of entry by settlers upon failure to comply with the provisions of this chapter. There shall be kept in the office of the department, for public inspection, copies of all maps, plats, contracts for the construction of irrigation works, and of the entries of lands by settlers.

The department shall require from each person, company of persons, association or incorporated company engaged in the construction of irrigation works, under the provisions of this chapter, an annual report, to be submitted to the department on or before November first of each year. This report shall show the number of water rights sold, the number of users of water under said irrigation works, the legal subdivisions of land for which water is to be furnished, the names of the officers of the company, the acreage of land which the said irrigation works are prepared to supply with water, and such other data as the department sees fit to require.

The rules required by this section may be waived in the case of irrigation works being constructed by a person, colony or association of persons to furnish water for land settled upon and being reclaimed by themselves.

History.

1895, p. 215, ch. 2, § 22; reen. 1899, p. 282, ch. 2, § 22; reen. R.C. & C. L., § 1631; C.S., § 3030; I.C.A.,§ 41-1737.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Waiver.

Board had no authority by rule to extend time within which entryman could improve and irrigate his land. Pierson v. Loveland, 16 Idaho 628, 102 P. 340 (1909).

Cited

Hanes v. Idaho Irrigation Co., 21 Idaho 512, 122 P. 859 (1912).

§ 42-2038. Fees of department — Duties of employees.

The director shall prescribe the duties of all its employees and shall collect the following fees:

For filing an application requesting temporary withdrawal — each project application shall be accompanied by the guaranteed deposit required by section 42-2004, Idaho Code, and by a one hundred dollar ($100) nonrefundable application fee.
For filing an application for segregation of lands — each project application shall be accompanied by the guaranteed deposit required by section 42-2004, Idaho Code, unless the required guaranteed deposit has already been made with an application requesting temporary withdrawal, and by a nonrefundable application fee to be based upon an estimate by the director of the department’s cost of reviewing the project feasibility reports including any necessary on-site inspections of the project. However, in no case shall the application fee be less than five hundred dollars ($500) nor exceed ten dollars ($10.00) per acre of land requested to be segregated.
For filing detailed project plans and specifications and entering a contract to construct the project works — the detailed plans and specifications and the proposed contract for construction of works for the project shall be accompanied by a nonrefundable fee to be based upon an estimate by the director of the department’s costs of reviewing the detailed plans and specifications and the proposed contract, and for inspection of project construction. However, in no case shall the fee be less than five hundred dollars ($500) nor exceed ten dollars ($10.00) per acre of land segregated for the project.
For filing applications to enter project lands — each application to enter project lands shall be accompanied by the payment on the land required by section 42-2014, Idaho Code, and by a one hundred dollar ($100) nonrefundable application for entry fee.
In administering the charges authorized in paragraphs (2) and (3) above, the director shall make every effort to group project studies and in every way take that action which will minimize the fees charged to the settlers. The money collected for fees shall be paid to the treasurer of the state and by him credited to the fund created by virtue of this chapter. No fee shall be required of any state agency proposing to construct a project under this act.

History.

1895, p. 215, ch. 2, § 23; reen. 1899, p. 282, ch. 2, § 23; reen. R.C. & C.L., § 1632; C.S., § 3031; I.C.A.,§ 41-1738; am. 1974, ch. 164, § 9, p. 1397; am. 1981, ch. 314, § 1, p. 658.

STATUTORY NOTES

Compiler’s Notes.

Effective Dates.

Section 2 of S.L. 1981, ch. 314 declared an emergency. Approved April 7, 1981.

§ 42-2039. Restoration of lands authorized.

The legislature hereby recognizes and acknowledges the need to assure replacement of the grazing and wildlife land uses displaced by Carey Act developments. In order to facilitate such replacements, any settlers having contracts with the state for reclamation of lands segregated under the Carey Act shall include grazing and wildlife restoration work in total or in part to the maximum expenditure of five dollars ($5.00) per acre for grazing restoration and one dollar ($1.00) per acre for wildlife restoration as a legitimate and necessary cost of the reclamation effort. The settlers are hereby authorized to subcontract with the bureau of land management, or any party designated by the bureau, for the purpose of accomplishing this restoration work. Payment by the Carey Act settlers for the restoration work shall be at the time the settler is granted patent to the lands developed. The director of the department of water resources is hereby authorized and directed to accept restoration expenditures as bona fide land development costs of the company up to an amount not to exceed five dollars ($5.00) per acre for grazing restoration and one dollar ($1.00) per acre for wildlife restoration.

In the event that no suitable lands are available for restoration as grazing lands as provided herein, the director is authorized to so certify, and the payment in lieu of restoration shall be made directly to the person with previous grazing rights to the land under Carey Act development.

In those instances where a Carey Act project application is filed for land on which any livestock watering improvements, established trail rights, or recent successful reseedings of less than five (5) years usage are in place and functional at the time of the filing, then these watering improvements, trail rights or reseedings shall be replaced in kind notwithstanding costs in excess of the limitation of five dollars ($5.00) imposed herein. The director of the department of water resources shall be responsible for the negotiation and determination of the values in excess of five dollars ($5.00) per acre which are involved in qualifying water improvements, trail rights or recent reseedings and to whom the payments for excess values shall be made.

History.

I.C.,§ 42-2039, as added by 1975, ch. 61, § 1, p. 127; am. 1976, ch. 109, § 2, p. 433.

STATUTORY NOTES

Prior Laws.

Federal References.

The Carey Act, referred to herein, is found in 43 U.S.C.S. § 641.

Compiler’s Notes.

For more on the bureau of land management, see http://www.blm.gov/wo/st/en.html .

§ 42-2040. Suits by department.

All suits or actions under the provisions of this chapter, shall be brought by the director of the department of water resources.

History.

1895, p. 215, ch. 2, § 25; reen. 1899, p. 282, ch. 2, § 25; reen. R.C. & C.L., § 1634; C.S., § 3033; I.C.A.,§ 41-1740; am. 1974, ch. 164, § 11, p. 1397.

The 2006 amendment, by ch. 126, updated statutory references near the beginning of the section.

Compiler’s Notes.

The words “this act” in the third sentence refer to S.L. 1976, chapter 306, which is codified as§§ 42-2041 to 42-2044.

§ 42-2043. Source of lands.

If the lands in the project area become available to the state of Idaho by direct grant from the United States, other than through provisions of the Carey Act, the Idaho water resource board is authorized to proceed, as set forth in this act, as though the project were under the provisions of the Carey Act.

History.

1976, ch. 306, § 3, p. 1049.

STATUTORY NOTES

Federal References.

The Carey Act, referred to herein, is found in 43 U.S.C.S. § 641.

Compiler’s Notes.

The words “this act” near the end of the section refer to S.L. 1976, chapter 306, which is codified as§§ 42-2041 to 42-2044.

§ 42-2044. Exemption from appropriation restrictions.

The development of the water project authorized in this act is hereby declared to be exempt from the provision expressed in the last sentence of Section 1 of Chapter 470, Idaho Laws of 1969.

History.

1976, ch. 306, § 4, p. 1049.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” near the beginning of the section refer to S.L. 1976, chapter 306, which is codified as§§ 42-2041 to 42-2044.

Section 1 of chapter 470, Idaho Laws of 1969, was an appropriation from the general fund to the water resource board revolving development fund.

Effective Dates.

Section 5 of S.L. 1976, ch. 306, declared an emergency. Approved April 1, 1976. Law without governor’s signature March 31, 1976.

Chapter 21 CAREY ACT CONSTRUCTION COMPANIES ACTING AS OPERATING COMPANIES

Sec.

§ 42-2101. Maintenance charges

Be equally and ratably levied and may be based upon the number of shares or water rights held or owned by the owner of such land as appurtenant thereto; or
May be based upon the amount of water used or said tolls, assessments and charges may be based on:
1. A combination of a charge of a fixed amount per share for annual operation and maintenance and a charge for a fixed minimum amount of water per share, whether used or not, plus an additional charge based on the estimated amount of water to be delivered over the minimum, as requested by the farmer, including the energy costs of said excess delivery; or
2. A combination of a charge for energy costs, based on the amount of water delivered, and a separate charge for all other operation and maintenance costs, based on the number of shares or water rights; or
May be based upon any other method of assessment fairly allocating the costs of operating and maintaining the irrigation works which has been approved by the affirmative vote of at least two-thirds (2/3) of the shares entitled to vote at any annual, regular or special meeting of the shareholders at which the question of approving the method of assessment is brought properly before the meeting.

History.

1913, ch. 120, § 1, p. 464; reen. C.L. 129:2; am. 1919, ch. 115, § 1, p. 401; C.S., § 3040; am. 1925, ch. 107, § 2, p. 153; I.C.A.,§ 41-1901; am. 1980, ch. 196, § 1, p. 432; am. 1993, ch. 108, § 1, p. 276; am. 2016, ch. 132, § 1, p. 396.

STATUTORY NOTES

Cross References.

Carey Act system not a public utility,§ 61-124.

Report of assessments and liens on land mortgaged to secure loan of state endowment funds,§ 43-2007.

Amendments.

The 2016 amendment, by ch. 132, substituted “not to exceed fifty dollars ($50.00)” for “not to exceed ten dollars ($10.00)” in the last sentence of the introductory paragraph.

Effective Dates.

Section 3 of amendatory act of S.L. 1925, ch. 107 declared an emergency.

CASE NOTES

Benefits Received.

Because this section clearly authorizes companies to levy and collect assessments from landowners within the canal system regardless of whether or not water is used by those owners, the adjudication court did not err in determining that “benefits received” did not mean “water received.” Aberdeen-Springfield Canal Co. v. Peiper, 133 Idaho 82, 982 P.2d 917 (1999).

Constitutionality.

Amendment of S.L. 1925, ch. 107, is complete in itself and not subject to objection that it contains improper classification or is denial of equal protection of laws. Sanderson v. Salmon River Canal Co., 45 Idaho 244, 263 P. 32 (1927) (chapter no longer restricted to companies operating under Carey Act). There was no constitutional violation where the common interest created in a viable water delivery system and the costs of maintaining a canal system served as a rational basis for assessments, and where a meaningful opportunity to be heard and contest the amount due was provided. Aberdeen-Springfield Canal Co. v. Peiper, 133 Idaho 82, 982 P.2d 917 (1999).

Contract with Construction Company.

Contract between state and construction company fixing the rate to be charged purchasers of water rights was not binding on an operating company subsequently obtaining control of the system. Vinyard v. North Side Canal Co., 38 Idaho 73, 223 P. 1072 (1923).

Contract between settlers and construction company was not binding on operating company, if control of project had, in effect, passed to operating company. Blaine County Canal Co. v. Hansen, 49 Idaho 649, 292 P. 240 (1930).

Enforcement of Charges.

Water right could not be severed from land to which it was appurtenant merely to allow owner to avoid his share of maintaining and operating irrigation works, where such water right was not capable of being transferred to and applied to other lands, and water not otherwise available was still used on the land. Strong v. Twin Falls Canal Co., 44 Idaho 427, 258 P. 173 (1927).

Statutory methods for recovering irrigation maintenance charges by operating company are cumulative and not exclusive, therefore they may be recovered by action in quantum meruit. Blaine County Canal Co. v. Hansen, 49 Idaho 649, 292 P. 240 (1930).

Forfeiture.

Issue and Claim Preclusion.

Utility was not barred from attempting to collect 1992 assessments as the 1992 assessments were not ripe for adjudication at the time of an earlier trial involving the parties when the trial court had ruled that assessments for prior years were illegal and uncollectible, and therefore claim preclusion did not bar the present claim, and as the trial court had not been presented with the issues of the legality of the assessment under§ 30-308A (repealed), but had been reviewing whether the assessments violated this section in the earlier trial, issue of preclusion did not bar the present claim. Bell Rapids Mut. Irrigation Co. v. Hausner, 126 Idaho 752, 890 P.2d 338 (1995).

Levy of Assessment.

It was held, under facts of case, that assessment could be levied only when water was requested and actually delivered. Aberdeen-Springfield Canal Co. v. Bashor, 36 Idaho 818, 214 P. 209 (1923). Levies may be for reasonable amount based upon number of shares or in proportion to amount of water used or owned or by both of said methods for purposes stated in this section, but procedure to be followed must be in compliance with this chapter. Sanderson v. Salmon River Canal Co., 45 Idaho 244, 263 P. 32 (1927).

An assessment against lateral water users in an amount greater than the other lateral users was void, since assessment was not equally prorated among all lateral stockholders, even though some of the lateral water users signed an agreement under which corporation was given the right to maintain and repair the laterals. Hale v. McCammon Ditch Co., 72 Idaho 478, 244 P.2d 151 (1952).

Stockholders of ditch company must be assessed pro rata on maintenance of system, but such assessment should not include special benefits conferred on lateral users. Hale v. McCammon Ditch Co., 72 Idaho 478, 244 P.2d 151 (1952).

Priorities.

Where there were separate liens for purchase of stock in Carey Act company and for maintenance of project, and each lien set out a stipulation in consideration of the other, priority between such liens could have been ascertained from these stipulations. Portneuf-Marsh Valley Canal Co. v. Brown, 274 U.S. 630, 47 S. Ct. 692, 71 L. Ed. 1243 (1927).

Purchase money liens for stock in construction company had priority in point of time over maintenance liens. Portneuf-Marsh Valley Canal Co. v. Brown, 274 U.S. 630, 47 S. Ct. 692, 71 L. Ed. 1243 (1927).

In case of Carey Act company which was actually controlled by water users themselves, lien of maintenance and operation assessments was prior to all other liens save taxes. Carlson-Lusk Hdw. Co. v. Kammann, 39 Idaho 654, 229 P. 85 (1924).

Status of Lien.

A construction company taking over land and water rights where a default had been made by the purchaser, did not free such land and water from the statutory lien of the operating company for water furnished. North Side Canal Co. v. Idaho Farms Co., 107 F.2d 481 (9th Cir. 1939).

In absence of express provision, lien created by statute was subsequent to other liens which were prior in time. Carlson-Lusk Hdw. Co. v. Kammann, 39 Idaho 654, 229 P. 85 (1924).

Lien laws are in derogation of common law and persons invoking such remedies must clearly prove facts necessary to constitute lien. Carlson-Lusk Hdw. Co. v. Kammann, 39 Idaho 654, 229 P. 85 (1924).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-2201A. Authorization for other assessment.

The board of directors of a corporation which utilizes section 42-2201, Idaho Code, as the basis of their water stock assessments, after direction by a resolution of a majority of the stockholders at the annual meeting, may:

Make no assessment, or a lesser assessment against:
1. Shares of corporate stock representing water appurtenant to acres contracted in a federal cropland set-aside program;
2. Shares of stock appurtenant to parcels of five (5) acres or less where the stockholder maintains his principal residence and where water cannot be delivered through no fault of the irrigation entity or the stockholder; or
3. Accept an assignment of up to five (5) shares of the corporation’s stock appurtenant to parcels of five (5) acres or less where the stockholder maintains his principal residence and where water cannot be delivered through no fault of the irrigation entity or the stockholder, provided the stockholder will assign ownership of the shares to the corporation together with a title insurance policy or an executed indemnification protecting the corporation from outstanding liens.
To assess and collect for extra water diverted over and above the amount originally estimated and paid for pursuant to the corporation’s assessment pursuant to section 42-2201, Idaho Code, which extra water was diverted during the irrigation season, by mailing a supplemental assessment at the end of the irrigation season to collect for extra water diverted which was in excess of preseason estimates, to refund as necessary or credit against future assessments if the final charge is less than the amount previously paid. The board of directors collects or pays interest on overages and underages as appropriate from the due date of the supplemental assessment. Interest on said overages and underages shall not exceed twelve percent (12%) per annum.

History.

I.C.,§ 42-2201A, as added by 1993, ch. 108, § 2, p. 276.

STATUTORY NOTES

Effective Dates.

Section 3 of S.L. 1993, ch. 108 declared an emergency. Approved March 22, 1993.

§ 42-2202. Statement to be filed with county recorder. [Repealed.]

Repealed by S.L. 2019, ch. 190, § 2, effective July 1, 2019.

History.

1913, ch. 120, § 2, p. 465; reen. C.L. 129:3; C.S., § 3041; I.C.A.,§ 41-1902.

§ 42-2203. Filing of claim of lien.

On or after the first day of November and prior to the first day of January thereafter, the company, corporation or association, claiming the benefit of the lien herein provided, as against any parcel of land upon which the tolls, assessments and charges shall not have been paid, shall file for record with the county recorder for the county in which such land is situated, a statement containing the name of such company, corporation or association, the general or common name of the canal systems or irrigation works, or a general description of the same sufficient for identification, a statement of the lien claimant’s demand, after deducting all just credits and offsets, a description of the particular tracts or parcels of land to be charged with the lien sufficient for identification, with the name of the owner, or reputed owner, if known, of each particular tract or parcel, which claim must be verified by the oath of the claimant or its attorney or agent, to the effect that affiant believes the same to be just: provided, that the claim or claims for liens against all land upon which the same is claimed for one year, may be made in one or more instruments, regardless of the number of owners, reputed owners or proprietors.

History.

1913, ch. 120, § 3, p. 465; reen. C.L. 129:4; C.S., § 3042; I.C.A.,§ 41-1903.

STATUTORY NOTES

Cross References.

Limitation of lien,§ 42-2205.

§ 42-2204. Duties of county recorder. [Repealed.]

Repealed by S.L. 2019, ch. 190, § 3, effective July 1, 2019.

History.

1913, ch. 120, § 4, p. 466; reen. C.L. 129:5; C.S., § 3043; I.C.A.,§ 41-1904.

§ 42-2205. Limitation of lien.

No lien provided for in this chapter binds any land for a longer period than three (3) years after the filing of the statement mentioned in section 42-2203, Idaho Code, unless proceedings be commenced in a proper court within that time to enforce such lien.

History.

1913, ch. 120, § 5, p. 466; reen. C.L. 129:6; C.S., § 3044; I.C.A.,§ 41-1905; am. 2013, ch. 60, § 1, p. 136.

STATUTORY NOTES

Amendments.

The 2013 amendment, by ch. 60, substituted “three (3) years” for “two (2) years.”

CASE NOTES

Validity of Lien.

The exclusion of evidence of the institution of suits within the statutory period was directed to a purely collateral matter, and did not serve to import into the case any issue concerning the validity of the maintenance lien. North Side Canal Co. v. Idaho Farms Co., 109 F.2d 354 (9th Cir. 1940).

§ 42-2206. Foreclosure proceedings relate only to water or water rights.

In the event that the owner or holder or occupant of the premises upon which water has been purchased or contracted for, has not, at the time of the filing of the claim of lien provided for in section 42-2203[, Idaho Code], received title to the premises so occupied or held by him, and liens are filed as provided for in this chapter, the proceedings for foreclosure herein provided for shall relate only to the said water or water rights and the said water or water rights shall be sold in like manner as if title to the premises had been acquired by the holder or occupant of said land, or the owner or holder of the said water right or water appurtenant to said land.

History.

1919, ch. 115, § 2, p. 402; C.S., § 3045; I.C.A.,§ 41-1906.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

CASE NOTES

Necessary Parties.

§ 42-2207. Foreclosure of lien.

Proceedings in the way of civil action in the district courts may be commenced and maintained to enforce the lien herein provided, which proceedings may embrace one or more parcels of land, or one or more landowners, or reputed landowners; and except as otherwise provided herein, the provisions of the Idaho laws relating to civil actions, new trials and appeals, are applicable to and constitute the rules of practice in proceedings under this chapter; and except as otherwise provided, the nature and effect of a judgment of foreclosure shall be the same as the foreclosure of a first real estate mortgage: provided, that the sale of such land under foreclosure shall pass to the purchaser, all ditch and water rights appurtenant thereto, and the interests, including corporate stock, of the owner or holder of such land in such corporation, company or association.

History.

1913, ch. 120, § 6, p. 466; reen. C.L. 129:7; C.S., § 3046; I.C.A.,§ 41-1907.

STATUTORY NOTES

Cross References.

Appeals, Idaho Code, Title 13 and Idaho Appellate Rules.

Civil actions, Idaho Code, Title 5, and Idaho Rules of Civil Procedure.

Foreclosure of mortgages,§ 6-101 et seq.

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-2208. Interest on delinquent assessments.

All charges levied under the provisions of this chapter shall draw interest at twelve per cent (12%) per annum from the time when due and payable, to the entry of judgment of foreclosure, and the right of lien shall extend to such interest and the costs of foreclosure.

History.

1913, ch. 120, § 7, p. 466; reen. C. L. 129:8; C. S., § 3047; I. C. A.,§ 41-1908; am. 1933, ch. 101, § 1, p. 162; am. 1974, ch. 28, § 1, p. 979; am. 1982, ch. 89, § 1, p. 164.

STATUTORY NOTES

Effective Dates.

Section 2 of S.L. 1974, ch. 28 provided that the act should take effect on and after July 1, 1974.

§ 42-2209. Release of lien.

It shall be the duty of the company, corporation or association of persons filing a lien statement as provided in section 42-2203[, Idaho Code], to cause a release of the same upon the records of the county where filed, in the same manner and with like penalties for failure as is or may be provided by law in case of real estate mortgages.

History.

1913, ch. 120, § 10, p. 467; reen. C.L. 129:9; C.S., § 3048; I.C.A.,§ 41-1909.

STATUTORY NOTES

Cross References.

Penalty for failure to release record upon satisfaction of mortgage,§ 45-915.

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

§ 42-2210. Interpretation.

This chapter shall not be held to affect the rights of any person, corporation, company or association of persons to charge or collect tolls, charges or assessments to which it may be otherwise entitled; nor the right of a corporation to make assessments upon its stock according to law; nor the obligation of a stockholder or member of any corporation or association otherwise created; nor any other lien or right of lien given by the laws of this state, or otherwise.

History.

1913, ch. 120, § 9, p. 466; reen. C.L. 129:10; C.S., § 3049; I.C.A.,§ 41-1910.

§ 42-2211. Securing supplemental water — Annual levies — Delivery of water upon payment.

Any corporation of the character described in this chapter, in order to secure additional water for the irrigation of the lands of its stockholders to supplement their natural flow rights, by the construction of dams or other works and the storing or impounding of winter flow, or flood, or other waters, may contract with the United States bureau of reclamation, public works administration, reconstruction finance corporation, resettlement administration or any other federal agency or instrumentality, or with any person, agency or corporation, for the construction of necessary works, or the loan of moneys for such construction, and may provide in such contract that said corporation will annually levy an assessment against its stockholders sufficient in amount to pay all obligations created by such contract, as the same mature, and will collect the same as tolls, and may provide that no part of such supplementary water shall be delivered to any stockholder until his annual toll and assessment levied with respect to such supplemental water has been paid. Any corporation so contracting shall not deliver such supplemental water to any stockholder or user except upon payment in full of such annual toll and assessment; provided, however, that no such contract may be entered into by any corporation unless and until its board of directors shall have been authorized so to do by resolution of its stockholders adopted at a regular or special meeting thereof. Nothing herein contained shall be construed to in any way affect or impair any rights such corporation now has under the law to levy and collect assessments for corporate purposes.

History.

1937, ch. 234, § 1, p. 420.

STATUTORY NOTES

Compiler’s Notes.

For more on the bureau of land management, see http://www.blm.gov/wo/st/en.html .

The public works administration, referred to in the first sentence, was abolished in 1943 and its functions were transferred to the federal works agency, which was abolished in 1949.

1945, ch. 30, § 1, p. 37.

§ 42-2302. Funds for charges and expenses.

To provide funds to meet necessary charges and expenses for the treatment and eradication of noxious weeds as provided in section 42-2301[, Idaho Code], the board of directors of such company, association of persons, or corporation, may utilize monies available under the provisions of section 42-2201[, Idaho Code], and may also levy and collect, pursuant to title 42, chapter 22[, Idaho Code], money for necessary charges and expenses against any given piece of land according to the benefits which shall accrue to the same, to be determined by the board of directors of such company, association of persons, or corporation.

History.

1945, ch. 30, § 2, p. 37.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertions throughout the section were added by the compiler to conform to the statutory citation style.

§ 42-2303. Cooperation with established weed program.

The work to be carried on under the provisions of this act shall be in cooperation with the weed program of the constituted authorities of the state, pursuant to chapter 235 of the 1939 Session Laws, and Acts amendatory thereof, but shall not interfere with or usurp any of the powers which are now granted by the provisions of said act, or acts amendatory thereof.

History.

1945, ch. 30, § 3, p. 37.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” near the beginning of the section refers to S.L. 1945, chapter 30, which is codified as§§ 42-2301 to 42-2304.

Chapter 235 of S.L. 1939, referred to in this section, was repealed by S.L. 1970, ch. 149, § 1. Now see§ 22-2401 et seq.

§ 42-2304. Provisions of act permissive.

The provisions of this act shall not be construed as mandatory, but permissive only as to any company, association of persons, or corporation, referred to in section 42-2301[, Idaho Code].

History.

1945, ch. 30, § 4, p. 37.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” near the beginning of the section refers to S.L. 1945, chapter 30, which is codified as§§ 42-2301 to 42-2304.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Chapter 24 CONFORMATION OF OPERATING COMPANIES TO DISTRICT SYSTEM

Sec.

§ 42-2401. Additional rights and powers granted irrigation or canal companies.

To divide into districts the territory included in such project or system and to change from time to time the number and boundaries of such districts.
To elect its directors from such districts by a vote in which all the stockholders of the corporation may participate, determine the number of directors to be elected from each district, fix their terms of office and prescribe the times and manner of choosing their successors.
To hold regular annual meetings at which the stockholders who are represented in person or by proxy shall constitute a quorum for the transaction of business and shall have the power by a majority vote of the stock so represented to elect directors and transact any other business of the corporation proper to be done.
To provide for the appointment of an executive committee from the board of directors, to be composed of not less than three (3) thereof. Such committee shall have all the powers, rights and privileges of the board of directors and may meet at such times and places as the bylaws may provide or the board of directors may determine, and the acts of such committee shall in all matters be valid as against the corporation.
To provide by amendment to its articles of incorporation or by adopting new articles of incorporation for the treatment and eradication of noxious weeds growing on the lands within the boundaries of said irrigation project and adjacent thereto and to drain excess water from said lands.
To change or amend its articles of incorporation or bylaws or adopt new articles or new bylaws, by a two-thirds (2/3) vote of the stock represented, at any regular meeting of the stockholders, or at any special meeting duly called for that purpose in accordance with the provisions of sections 30-310 and 30-311, Idaho Code: provided, that any proposed changes in the articles of incorporation or bylaws or any new articles of incorporation or bylaws shall be either proposed at a meeting of the stockholders or approved by at least one-third (1/3) of the board of directors; and before being finally adopted the board of directors shall cause such proposed articles, bylaws, or changes therein (or a summary of them) to be published in a newspaper of general circulation published in the county in which the main office of the canal company is situated, for at least once each week for four (4) weeks prior to the meeting at which such articles, bylaws, or changes therein are finally adopted and said notice shall state the time and place at which the vote on final adoption will be taken.
To prohibit any officer, director, manager or employee of the corporation from acting as proxy for any other person at any meeting of the stockholders.
To prescribe by its articles of incorporation or bylaws the manner in which the powers given by law shall be exercised.
To provide by amendment to its articles of incorporation or by adoption of new articles of incorporation that the directors be divided into two (2) or three (3) classes, each class to be as nearly equal in number as possible; the term of office of directors of the first class to expire at the first annual meeting of directors after their election, that of the second class to expire at the second annual meeting after their election, and that of the third class, if any, to expire at the third annual meeting after their election. At each annual meeting after such classification the number of directors equal to the number of the class whose term expires at the time of such meeting shall be elected to hold office until the second succeeding annual meeting, if there be two (2) classes, or until the third succeeding annual meeting, if there be three (3) classes. Immediately after the first election following such amendment or adoption as herein provided, each such class shall be selected by lot by the elected directors at their organizational meeting. 10. To provide for a notice of a meeting of the stockholders or the election of directors which notice may be given by an advertisement thereof for two (2) weeks in a newspaper of general circulation within the canal company service area and the county in which the principal place of business of the corporation is located or which notice may be given by written notice, placed in the United States mail, postage prepaid, and addressed to the stockholder at his last known post office address.

History.

1923, ch. 133, § 1, p. 194; I.C.A.,§ 41-2001; am. 1943, ch. 150, § 1, p. 296; am. 1980, ch. 197, § 32, p. 433; am. 1982, ch. 63, § 1, p. 125; am. 1989, ch. 350, § 1, p. 877.

STATUTORY NOTES

Compiler’s Notes.

Section 30-310 and 30-311, referred to in subdivision 6., were repealed by S.L. 1993, ch. 220, § 1. See§ 30-30-501 et seq.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 34 of S.L. 1980, ch. 197 read: “(1) Section 1 and sections 3 through 33 of this act shall be in full force and effect on and after July 1, 1980.

“(2) Section 2 of this act shall be in full force and effect on and after July 1, 1981.”

§ 42-2402. Purposes of organization determined from charter.

History.

1917, ch. 159, § 1, p. 484; reen. C.L. 130:1; am. 1919, ch. 171, § 1, p. 544; C.S., § 3052; am. 1925, ch. 94, § 1, p. 134; I.C.A.,§ 41-2101.

STATUTORY NOTES

Federal References.

Carey Act, see 43 U.S.C.S. § 641.

Effective Dates.

Section 2 of S.L. 1925, ch. 94 declared an emergency.

CASE NOTES

Change of Place of Use.

An owner of land and water rights under a Carey Act project may change the place of use of such water if it can be done without material injury to other appropriators. In re Robinson, 61 Idaho 462, 103 P.2d 693 (1940).

Forfeiture of Water Right.

Realty.

While shares of water stock may be personalty, the water right which such shares control is real property. Bothwell v. Keefer, 53 Idaho 658, 27 P.2d 65 (1933).

Restriction on Severance.

Water right could not be severed from land to which it was appurtenant merely to allow owner to avoid his share of expense of maintaining and operating irrigation works, where such water right was not capable of being transferred to and applied to other lands, and water not otherwise available was still used on land. Strong v. Twin Falls Canal Co., 44 Idaho 427, 258 P. 173 (1927).

Taxation.

As to change of place of use, or transfer of water within a Carey Act system, the only injury which another user may set up to prevent the same is an injury to his water right and the use thereof, and a question of taxation will not be considered in connection therewith. In re Robinson, 61 Idaho 462, 103 P.2d 693 (1940).

Cited

Idaho Irrigation Co. v. Gooding, 285 F. 453 (9th Cir. 1922).

RESEARCH REFERENCES

Am. Jur. 2d.

§ 42-2502. Instrument of conveyance — Execution — Recordation.

The transfer of a water right, in whole or in part, made by such person to other lands so owned by him shall be evidenced by a written instrument executed and acknowledged by such person as other conveyances of real estate, reciting therein the facts, stating the amount of the right transferred and describing the land from which and the land to which the transfer is to be made, and the transfer of a water right or any portion thereof from one person to another shall be evidenced by a written instrument containing similar recitals and executed and acknowledged in like manner by the grantor or lessor.

All of such instruments shall be recorded in the office of the county recorder of the county or counties where the land is situated from which such right is transferred and also in the office of the county recorder of the county or counties where the land is situated to which such right is transferred, and to all of such instruments the recording acts of the state shall apply.

History.

1917, ch. 159, § 2, p. 484; reen. C.L. 130:2; C.S., § 3053; I.C.A.,§ 41-2102.

§ 42-2503. Consent of Carey Act operating company to transfer.

Before the transfer of a water right shall take effect under this chapter a person interested therein must apply to the board of directors of the corporation operating such Carey Act irrigation system for consent to the making of such transfer, and if such consent is given a resolution showing the same and the extent or portion of the right to be transferred shall be adopted by said board and a copy thereof, with proper reference to the date of its passage, shall be incorporated in the instrument evidencing such transfer, and upon the recording of such instrument, as provided in section 42-2502[, Idaho Code], such transfer shall be complete.

History.

1917, ch. 159, § 4, p. 484; compiled and reen. C.L. 130:4; C.S., § 3054; I.C.A.,§ 41-2103.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion near the end of the section was added by the compiler to conform to the statutory citation style.

CASE NOTES

Change of Place of Use.

Real Party in Interest.

Where there was an agreement in contract for purchase of land providing that the purchaser could not carry out the contract unless he obtained a permit to transfer water from one tract of land to another, this did not prevent such purchaser from being the real party in interest in litigation in connection with the water right in a Carey Act project. In re Robinson, 61 Idaho 462, 103 P.2d 693 (1940).

§ 42-2504. Transfer of water right

Approval by director of the department of water resources. [Repealed.]

Realty.

While shares of water stock may be personalty, the water right which such shares control is real property. Bothwell v. Keefer, 53 Idaho 658, 27 P.2d 65 (1933).

§ 42-2508. Effect of lease upon appurtenancy.

A lease of a water right or of a portion thereof shall not change the appurtenancy of such right, but the same shall remain an appurtenant of the land of the lessor, subject only to the rights of the lessee to make use of the same.

History.

1917, ch. 159, § 9, p. 484; reen. C.L. 130:9; C.S., § 3059; I.C.A.,§ 41-2108.

§ 42-2509. Rights of lienholders protected.

No water right or any portion thereof shall be transferred from one tract of land to another under the provisions of this chapter where there is a valid existing mortgage or other lien or encumbrance on the land to which such water right is appurtenant without the consent of the holder of such mortgage or other lien or encumbrance, which consent shall be evidenced by an instrument in writing executed and acknowledged as other instruments relating to the conveyance of real estate.

History.

1917, ch. 159, § 10, p. 484; reen. C.L. 130:10; C.S., § 3060; I.C.A.,§ 41-2109.

1905, p. 373, § 2; reen. R.C., § 1583; reen. C.L. 131:1; C.S., § 3069; I.C.A.,§ 41-2301.

STATUTORY NOTES

Cross References.

Irrigation districts cooperating with federal government,§ 43-1801 et seq.

Irrigation districts cooperating with state under Carey Act,§ 43-1701 et seq.

Federal References.

For Reclamation Act of June 17, 1902, see 43 U.S.C.S. § 371 et seq.

§ 42-2702. Sales under government irrigation works — Limitation of time to apply for water.

In all contracts for the sale of lands, hereafter made, the irrigation of which depends upon the construction of irrigation works under the provisions of the Reclamation Act of June 17, 1902, it shall be provided that the purchaser shall apply for a water right from the government works, and subscribe such lands in the water users’ association of the project in which they are located, within one (1) year after said contract of purchase is made, or in case there should be no association, at the time of the sale of the state lands, to which such subscription can be made, it shall be provided in said contract, that such application and subscription shall be made within one (1) year after such association is formed, and upon failure of the purchaser or purchasers to comply with the provisions of this section, the lands so purchased shall revert to the state together with the payment or payments made thereon, as fully and completely as if no sale had ever been made.

History.

R.C., § 1583a, as added by 1909, p. 70; reen. C.L. 131:2; C.S., § 3070; I.C.A.,§ 41-2302.

STATUTORY NOTES

Federal References.

For Reclamation Act of June 17, 1902, see 43 U.S.C.S. § 371 et seq.

CASE NOTES

Assessment Liens.

The fact that a stockholder held land under a state land sale certificate and title was in the state did not prevent him from providing for an assessment lien in a stock subscription contract for stock in a water user’s association. Michaelson v. Miller, 53 Idaho 617, 26 P.2d 378 (1933).

§ 42-2703. Contracts with federal government for irrigation of state lands.

The state land board is hereby authorized and directed on behalf of the state to make and enter into suitable contracts with the secretary of the interior to provide for the irrigation of state lands within or adjacent to the national irrigation projects constructed or to be constructed in this state under the provisions of the act of congress of June 17, 1902, known as the reclamation act, and to provide for increasing the capacity of the irrigation works of such projects and extending them and perfecting them to provide for the irrigation of such state lands.

History.

1909, p. 331, § 1; reen. C.L. 131:3; C.S., § 3071; I.C.A.,§ 41-2303.

STATUTORY NOTES

Cross References.

State land board,§ 58-101 et seq.

Federal References.

For Reclamation Act of June 17, 1902, see 43 U.S.C.S. § 371 et seq.

CASE NOTES

State Land Sales Certificates.

Where a subscriber for stock in a water user association held his land, affected thereby, under a state land sales certificate and the legal title to said land was in the state, that does not disqualify him, or prevent him from executing a stock subscription contract for water on said land. Michaelson v. Miller, 53 Idaho 617, 26 P.2d 378 (1933).

§ 42-2704. Continuing appropriation of Carey Act trust fund.

The funds accumulated and to be accumulated under the provisions of section 42-2018[, Idaho Code,] are hereby appropriated for the purpose of carrying out the provisions of such contracts between the state land board and the secretary of the interior and for making the payments provided for therein: provided, that no obligations shall be incurred under this chapter in excess of the amount available in said fund.

History.

1909, p. 331, §§ 2, 3; reen. C.L. 131:4; C.S., § 3072; I.C.A.,§ 41-2304.

STATUTORY NOTES

Cross References.

State land board,§ 58-101 et seq.

Federal References.

For Carey Act, see 43 U.S.C.S. § 641.

Compiler’s Notes.

The bracketed insertion near the beginning of this section was added by the compiler to conform to the statutory citation style.

§ 42-2705. Funds expended under direction of secretary of the interior.

It may be provided in such contracts that the fund appropriated herein may be used under the direction of secretary of interior to supplement such funds as may be available for this purpose from the national reclamation fund under the act of congress of June 17, 1902, for the irrigation of said state lands.

History.

1909, p. 331, § 4; reen. C.L. 131:5; C.S., § 3073; I.C.A.,§ 41-2305.

STATUTORY NOTES

Federal References.

For Reclamation Act of June 17, 1902, see 43 U.S.C.S. § 371 et seq.

§ 42-2706. Reimbursement of Carey Act trust fund.

Provision shall be made for the collection of all sums expended by the state under this chapter and their return to the state is not to exceed ten (10) annual installments, said installments to be collected and returned to the state at the same times and in similar manner as may be provided for the collection of the installments due to the national government. Such installments when returned to the state shall constitute a trust fund in the hands of the state treasurer to be used only for the reclamation of other arid lands.

History.

1909, p. 331, §§ 5, 6; reen. C.L. 131:6; C.S., § 3074; I.C.A.,§ 41-2306.

STATUTORY NOTES

Cross References.

Carey act trust fund,§ 42-2018.

§ 42-2707. Conveyance of property to United States authorized.

Whenever the board of county commissioners of any county shall adjudge that it is desirable and for the general welfare and benefit of the people of the county and for the interest of the county to convey real property belonging to the county, however acquired, whether by tax foreclosure or in any other manner, not necessary for the use of the county, to the United States of America for use in connection with federal projects within the scope of the federal Reclamation Act of June 17, 1902, and federal acts amendatory thereof and supplemental thereto, for the reclamation and irrigation of arid lands, such board of county commissioners, by majority vote, are [is] hereby authorized to convey such property to the United States of America for use in connection with such federal projects as aforesaid for the reclamation and irrigation of arid lands.

History.

1943, ch. 108, § 1, p. 210; am. 1945, ch. 28, § 1, p. 35.

STATUTORY NOTES

Federal References.

For Reclamation Act of June 17, 1902, see 43 U.S.C.S. § 371 et seq.

Compiler’s Notes.

The bracketed insertion near the end of the section was added by the compiler to correct the enacting legislation.

Effective Dates.

Section 2 of S.L. 1945, ch. 28 declared an emergency. Approved Feb. 15, 1945.

§ 42-2708. Procedure for making conveyance.

Before making any such conveyance, the board of county commissioners shall enter a resolution declaring the intention of such board to make a conveyance of real property under authority of this act, and shall cause notice thereof to be published for at least two weekly issues of the official newspaper of said county before final action shall be taken, specifying the time and place where objections to such action may be filed and the time when such objections will be considered. Provided; that if no newspaper is published in said county, such notice may be given by posting such notice in three public places in the county, one of which shall be at the county court house, in the place provided for posting similar notices, for a period of at least ten days immediately preceding the time fixed for hearing objections.

History.

1943, ch. 108, § 2, p. 210.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” in the first sentence refer to S.L. 1943, chapter 108, which is compiled as§§ 42-2707 to 42-2709.

§ 42-2709. Determination of consideration.

If no objections are filed or objections are overruled, the board may then convey the real property proposed in said resolution to be conveyed, as herein authorized; such conveyance may be for such consideration as may be determined by said board.

History.

1943, ch. 108, § 3, p. 210.

STATUTORY NOTES

Effective Dates.

Section 4 of S.L. 1943, ch. 108 declared an emergency. Approved Mar. 2, 1943.

Chapter 28 COUNTY IRRIGATION, DRAINAGE, AND RECLAMATION PROJECTS

Sec.

§ 42-2801. Board of county commissioners — Authority in irrigation and drainage proceedings.

The boards of county commissioners of the several counties of the state of Idaho are hereby authorized and empowered to make all necessary orders for and cause to be constructed and maintained public drainage or irrigation systems, reservoirs, drains and ditches and other irrigation or drainage works for the irrigation or drainage of lands lying in said counties, and for such purposes, to enter into contracts for the construction or use of reservoirs and other irrigation or drainage works, constructed or to be constructed by the United States under the provisions of the federal reclamation laws, or for such works built or to be built by other parties or agencies and to take all steps and do all acts necessary or proper to secure an ample water supply for the lands in the county requiring irrigation and adequate drainage works for the lands requiring drainage, and to promote the beneficial use of the public waters of the state and the health and general welfare of the county by means of such works: provided, that nothing herein contained shall be construed to give such board of county commissioners authority over irrigation works except those acquired or constructed by the several counties under the provisions of this chapter: provided, also, that no county bonds shall be issued or sold for such purposes until such indebtedness has been authorized by two-thirds (2/3) of the electors of the county (having the qualifications provided in section 42-2803, Idaho Code,) voting at an election to be held, subject to the provisions of section 34-106, Idaho Code, for such purpose.

History.

1921, ch. 222, § 1, p. 492; I.C.A.,§ 41-2401; am. 1995, ch. 118, § 59, p. 417.

STATUTORY NOTES

Cross References.

Drainage districts, see§ 42-2901 et seq.

Irrigation districts, see Title 43, Idaho Code.

Soil conservation districts,§§ 22-2714 to 22-2735.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

OPINIONS OF ATTORNEY GENERAL

Power Projects.

The legislature has not given Idaho counties authority to produce and sell electric power. Therefore, Idaho counties lack authority to enter into an agreement with counties of other states to develop a joint water project for the production and sale of hydroelectric power.OAG 89-1.

Idaho counties have authority to join in an agreement with counties of Utah and Wyoming to develop a joint water project on the Bear River. Under Idaho law, however, the purposes of the water project must be limited to the irrigation or drainage of lands in the respective counties.OAG 89-1.

§ 42-2802. Enlargement of existing works — Purchase and completion of incomplete works — Purchase and completion of payments on partially paid storage rights.

The board of county commissioners may enlarge, improve or extend existing reservoirs, canals and other irrigation and drainage works to provide for the irrigation or drainage of additional lands in such county, or to improve the water supply or drainage for such lands, and may contract with the owners of existing irrigation or drainage works to provide for such enlargement, improvement or extensions, and may purchase and complete incomplete irrigation or drainage works and may purchase assignments of partially paid reservoir or storage rights and the assignment of such contracts, and may complete payment thereon and acquire such storage and reservoir rights for the reclamation or more complete irrigation of lands in such county, and in so doing shall proceed in similar manner as in the case of entirely new works but subject to the same condition as to approval of the bond issue by the electors of the county.

History.

1921, ch. 222, § 2, p. 492; I.C.A.,§ 41-2402.

STATUTORY NOTES

Cross References.

Fishways in dams,§ 36-906.

Abatement of flooding highways, court action,§ 40-2323.

Soil conservation districts, prevention of impairment of dams and reservoirs,§§ 22-2714 to 22-2727.

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-2803. Election procedure same as in other county bond elections.

In calling and holding such elections and canvassing the vote and in all other proceedings not otherwise provided herein, the board of county commissioners shall follow the procedure prescribed by law for county bond elections, and at such elections to authorize indebtedness, the electors shall have the qualifications prescribed by section 31-1903[, Idaho Code,] for other county bond elections, and in addition thereto must be taxpayers in said county.

History.

1921, ch. 222, § 3, p. 492; I.C.A.,§ 41-2403.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion near the end of this section was added by the compiler to conform to the statutory citation style.

§ 42-2804. Petition — Deposit of petitioners.

Before any public irrigation or drainage work specified in this chapter shall be established, a petition signed by one hundred (100), or twenty-five per cent (25%) of the owners of the land described in such petition, as the land proposed to be benefited, setting forth the necessity therefor, that the same will be a public benefit and will promote the public welfare or public health, the description of the proposed irrigation or drainage works in general terms, together with a description of the land intended to be benefited thereby, shall be filed with the county auditor. Upon the filing of such petition, one or more of such petitioners shall deposit with the county treasurer of such county from time to time sums of money in an amount to be determined and fixed by the board of county commissioners to be used by them to defray all costs and expenses incurred under the provisions of this chapter to and including all expenses of the bond election and until such time as funds for said work are otherwise available: provided, that the amount of such deposits shall be included in the cost of the works in the event the indebtedness for the same shall be authorized at such election and reimbursement shall thereafter be made to the parties depositing the same.

History.

1921, ch. 222, § 4, p. 492; I.C.A.,§ 41-2404.

§ 42-2805. Director of the department of water resources — Examination and report on practicability of plan — Calling of election — Procedure upon approval of bond issue — Appeal.

Upon the filing of the petition, and the making of the cash deposit, as herein provided, the board of county commissioners shall within thirty (30) days thereafter file a copy of said petition with the director of the department of water resources of the state of Idaho, and request him to examine into and report to said board, all matters necessary and essential to disclose the practicability, necessity or advisability of the construction of the proposed works or improvement, or the proposed contract for the use or benefit of the works constructed, and thereupon said director of the department of water resources shall, without delay, proceed and examine all matters named and referred to in said petition and make such survey of the territory likely to be affected by the proposed improvement as will enable him to fully determine whether the same is necessary or practicable, and report accordingly, and if some other or different plan than that described in the petition is found practicable, said director of the department of water resources shall so report giving such details and information as will be necessary to fully inform the board of county commissioners on all matters pertaining to the practicability or feasibility of the proposed plan, either as outlined in said petition, or according to some other or different plan that may be designated and recommended by said director of the department of water resources, but it shall be his duty to outline and designate all changes, whether by extension, enlargement, additions, or otherwise, that may be necessary to make the plan of the proposed improvement practicable and feasible, showing the probable size, character and cost of such proposed work, and if he finds the improvement petitioned for is feasible, he shall include in his report a map of the proposed improvement and also give the description of the tracts of land which he deems would be benefited thereby, and the probable area that is likely to be irrigated or drained or provided with a supplemental water supply, or otherwise affected by the proposed improvement, and such other information as the board may request. The director of the department of water resources is authorized to employ such assistance as the character of the work requested of him may require, but before incurring any expense he shall file with the county commissioners an estimate of the amount of money required to perform such work and upon the approval by the county commissioners of such estimate, said amount shall be required to be deposited with the county treasurer as other deposits are herein required, the same to be used in paying the expense incurred by said director of the department of water resources in the performance of said work. Upon the filing of the report of the director of the department of water resources as herein provided, and upon receipt of notice of approval of the project by the director of the department of water resources said board shall within ten (10) days proceed in like manner as provided by law for the procedure of the board of county commissioners in calling and conducting other county bond elections, and in like manner as provided in the laws governing county bond elections for other purposes, shall canvass the returns of said election, and if two-thirds (2/3) of the qualified electors, as in this chapter provided, voting at such election shall be found to have voted in favor of authorizing such indebtedness or bond issue, then the board of county commissioners shall make and file for record in the office of the county recorder an order establishing such county irrigation or drainage project; shall proceed to apportion and assess the benefits of such proposed irrigation or drainage works or such proposed contract, to the lands to be benefited thereby and in making such apportionment of benefits shall proceed in like manner as provided by law for the proceedings of the directors of irrigation districts in apportioning benefits in irrigation districts, and in like manner as in the case of similar proceedings in irrigation districts shall file a petition in the district court for the confirmation of the apportionment of benefits, and the validity of the bond issue or contract, and the proceedings in connection with the holding of the election, and the apportionment of benefits; whereupon the district court shall proceed to set such petition for hearing and to hear the evidence in connection therewith and to decide the same in like manner and with like effect as provided by statute in the case of similar proceedings in irrigation districts. The said petition and decree may be either for the confirmation of all of said proceedings in one (1) decree or there may be separate and successive petitions and decrees for confirmation of any part of said proceedings and if the court finds the apportionment as made by the board of county commissioners to be equitable and just the court shall confirm the same and if the court finds the said apportionment or any part thereof to be inequitable or unjust the court shall itself make an equitable and just apportionment and file a decree confirming the same. An appeal may be taken from such decision of the district court to the Supreme Court either by the board of county commissioners or any of protesting landowners who have appeared in said proceedings in the district court in like manner as in similar cases in irrigation districts. The said decree of the district court may not be collaterally attacked, and if not set aside or modified by the Supreme Court, shall be final and conclusive as to the validity of the bond issue and the apportionment of benefits so confirmed, and the regularity and validity of all proceedings in connection with or leading up to the same.

History.

1921, ch. 222, § 5, p. 492; I.C.A.,§ 41-2405.

STATUTORY NOTES

Cross References.

Apportionment and assessment of benefits in irrigation districts,§§ 43-404, 43-405.

Confirmation of proceedings in irrigation districts,§ 43-406.

Procedure in other county bond elections,§ 31-1905.

Qualifications of electors,§ 42-2803.

Compiler’s Notes.

The name of the director of the department of water administration (formerly the state reclamation engineer, successor to the commissioner of reclamation) has been changed to the director of the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, § 31 (§ 42-1804).

§ 42-2806. Contracts — Procedure for making similar to that in irrigation districts — Exception — Approval of director.

In making contracts for the construction or purchase of irrigation or drainage works or the right to the use of works constructed or to be constructed, the county commissioners shall proceed in similar manner as provided by law for the making of similar contracts by irrigation districts, but no election shall be required to authorize any such contract: provided, however, that the aggregate of all contracts entered into for the purchase or construction of works on any project under the provisions of this chapter shall provide for the ultimate completion of the project in accordance with the approved plans referred to herein at a total cost not exceeding the total sum of money derived from the sale of bonds issued for such project, and the contractor or contractors (except in cases where the United States government is the contractor) shall give the bond required by section 45-502[, Idaho Code].

The plans and specifications and all contracts for construction work contracted for by boards of county commissioners under this chapter shall first be approved by the director of the department of water resources, and any construction contract entered into by such boards shall by its terms provide that such construction work shall be completed in accordance with such plans and specifications to the approval of the director of the department of water resources except in the case of contracts with the United States government. It shall be the duty of the director of the department of water resources, upon the completion of the work under any contract entered into under the provisions of this chapter to issue a certificate of such completion to the board or boards of county commissioners.

History.

1921, ch. 222, § 6, p. 492; I.C.A.,§ 41-2406.

STATUTORY NOTES

Cross References.

Irrigation district construction contracts,§§ 43-901 to 43-904.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

The bracketed insertion at the end of the first paragraph was added by the compiler to conform to the statutory citation style. Section 45-502, referred to at the end of the first paragraph of this section, has been repealed. Present comparable provisions may be found at§ 54-1925 et seq.

§ 42-2807. Lands assessed — State lands.

All lands directly benefitted by any irrigation or drainage project, or any irrigation or drainage works established under this chapter, and all public or corporate roads or railroads so benefitted in whole or in part, shall be assessed in proportion to the benefits for the construction thereof. All lands owned by the state of Idaho benefitted by such project may be assessed for such benefit the same as taxable land, provided a notice of the filing of the petition and of the time and place of hearing and notice of hearing shall have first been served on the state agency responsible for the management of such state owned lands: provided, that instead of paying the said assessments so levied against the state lands, the state may promptly offer said state lands for sale at public sale in the manner provided by law, and as rapidly as permitted by the provisions of the state constitution, until the entire acreage of state land in such project shall have been sold and if the state does not make appropriations for the payment of such assessments against such state lands, then the sale of such state land, when made, shall be made under contract requiring the purchaser as a condition to receiving title to such lands from the state, or to receiving any contract right or interest therein, to pay all assessments duly levied against such lands under the provisions of this chapter, and to pay to the proper county officer at the time of such sale such annual assessments as may have come due prior to the time of such sale, with interest thereon as hereinafter provided, and to continue the payment of such assessments until title passes from the state to such purchaser, which conveyance shall be made from the state to the purchaser subject to the liens herein provided for.

History.

1921, ch. 222, § 7, p. 492; I.C.A.,§ 41-2407; am. 1994, ch. 180, § 86, p. 420; am. 2003, ch. 32, § 24, p. 94.

STATUTORY NOTES

Cross References.

Provision for assessment of state lands declared separable portion of chapter,§ 42-2822.

Effective Dates.

Section 241 of S.L. 1994, ch. 180 provided that such act should become effective on and after the first Monday in January, 1995 [January 2, 1995] if the amendment to the Constitution of Idaho changing the names of the state auditor to state controller [1994 S.J.R. No. 109, p. 1493] was adopted at the general election held on November 8, 1994. Since such amendment was adopted, the amendment to this section by § 86 of S.L. 1994, ch. 180 became effective January 2, 1995. RESEARCH REFERENCES

C.J.S.

§ 42-2808. Cooperation with state under Carey Act.

All counties in which irrigation projects shall be established under the provisions of this chapter by order of the board of county commissioners and all counties containing part or portion of the lands to be irrigated or reclaimed under any such project, are hereby authorized to cooperate with the state of Idaho and with the national government under the provisions of the Carey Act laws of the United States and of the state of Idaho, and all such counties are authorized and empowered to exercise and do all acts granted or authorized to irrigation districts under the provisions of chapter 17 of title 43, and sections 43-1701 to 43-1712 inclusive, of the Idaho Code, and the board of county commissioners of every such county is authorized and empowered to exercise all powers granted under said chapter and sections to the boards of directors of irrigation districts in providing for the irrigation and reclamation of lands segregated under the Carey Act, and the collection and enforcement of the liens provided for such purpose.

History.

1921, ch. 222, § 8, p. 492; I.C.A.,§ 41-2408.

STATUTORY NOTES

Federal References.

Carey Act, see 43 U.S.C.S. § 641.

§ 42-2809. Counties authorized to act as irrigation district.

For the purpose of performing the acts and exercising the powers granted by section 43-1801 of the Idaho Code and the act of Congress of August 11, 1916, entitled “An Act to Promote Reclamation of Arid Lands,” (39 Stat. 506), counties in which irrigation projects have been duly established by order of the board of county commissioners under the provisions of this chapter, shall be considered to be irrigation districts of the state of Idaho and vested with all the powers and authority granted to irrigation districts by said section 43-1801 of the Idaho Code, Idaho Code,] and by the said act of Congress of August 11, 1916, entitled “An Act to Promote the Reclamation of Arid Lands,” and the board of county commissioners of such counties are authorized to act as the directors of such district for such purpose and to exercise all the powers granted to the directors of irrigation districts.

History.

1921, ch. 222, § 9, p. 492; I.C.A.,§ 41-2409.

STATUTORY NOTES

Federal References.

Act of congress of August 11, 1916, see 43 U.S.C.S. §§ 621 to 630.

Compiler’s Notes.

The reference enclosed in parentheses so appeared in the law as enacted.

§ 42-2810. Cooperation with federal government under federal reclamation laws.

Any county in which any irrigation or drainage project shall have been established under the provisions of this chapter by order of the board of county commissioners, or which contains any part of the irrigable lands of such projects so established, is hereby authorized to cooperate with the United States and the officers of the interior department and reclamation service for the purpose of furnishing irrigation or drainage, or a more complete or ample water supply by means of reservoirs, canals, or other works, to lands in such county, is authorized to exercise all powers which are granted by chapter 18 of title 43, sections 43-1803 to 43-1828 inclusive of the Idaho Code to irrigation districts, and the board of county commissioners of such county are granted all powers and authorized to do all acts granted or authorized under said sections to be done, exercised or performed by the board of directors of an irrigation district.

History.

1921, ch. 222, § 10, p. 492; I.C.A.,§ 41-2410.

§ 42-2811. Bonds to be issued after lien statement filed — Direct obligation of county — Form, terms, and conditions — Provisions for payment.

The board of county commissioners of each and every county wherein any irrigation or drainage projects are proposed to be wholly or partially located and established, or wherein lands are located which are assessed for benefits by reason of the construction thereof, is hereby authorized after the filing of the decree of the district court confirming the election and other proceedings authorizing a bond issue of said county, to issue the bonds of their respective counties, and to be designed as “. . . . county improvement bonds” in such amounts as may be necessary to fully meet and discharge the expenses authorized by this chapter. All such bonds shall be the direct and primary obligations of the county for the full principal and interest thereof. The faith, credit, and all taxable property within the limits of the county, as constituted at the time of such issue, are, and must continue, pledged to the payment of said bonds. All such bonds shall be in the form provided in section 3524 of the Idaho Compiled Statutes and shall be sold negotiated as provided in section 3525 of the Idaho Compiled Statutes, and the board of county commissioners shall provide for the payment of such bonds and interest thereon in like manner as in the case of other county bonds and as set out and provided in section 3522 of the Idaho Compiled Statutes, but shall reimburse the county by enforcing all liens and collecting all assessments from the lands against which benefits have been assessed or apportioned under the provisions of this chapter. The word “expenses” shall be construed to mean and cover every item of cost of said irrigation or drainage project from the filing of the petition to the completion of work and all fees and expenses to be incurred in pursuance thereof. Such bonds shall be payable at such time or times not to exceed twenty (20) years from their date and shall bear such rate of interest payable annually or semiannually as the board of county commissioners shall by resolution determine. Each bond shall contain a recital that it is issued by authority of and in conformity with the provisions of this chapter and such bond may otherwise be in such form as the board of county commissioners may determine, but not in conflict with the requirements of section 3524 of the Idaho Compiled Statutes. Said board of county commissioners shall have power to sell and negotiate said bonds as hereinbefore provided. The proceeds from the sale of all such bonds shall be placed in a general reclamation fund which is hereby created in the county treasury. The county auditor shall keep a separate account with each irrigation or drainage project so established in such county, which account shall be credited with all moneys arising from the sale of bonds, all moneys received as interest or penalties upon liens, charges, assessments, and all other sources on account of such irrigation or drainage system, and which account shall be debited with every item of expenditure made on account of such irrigation or drainage project. Such board of county commissioners shall provide moneys for the payment of principal and interest of said bonds as they severally mature, which money shall be placed in the general reclamation fund into which fund it may transfer any surplus moneys remaining in the general revenue fund, or other funds of the county, which can be properly used for the purpose of this chapter, into which fund shall be paid all moneys received from the payment of any liens created under the provisions of this chapter, and such board is hereby authorized to pay such bonds issued under the provisions of this chapter, or the interest thereon, out of any available funds in the county treasury when the moneys on hand in the general reclamation fund of the treasury are insufficient to meet the payment of the bonds issued in irrigation or drainage proceedings under this chapter when the same mature. But the fund from which such moneys have been taken or used for the payment of bonds after they mature, shall be replenished with interest from the collections of unpaid assessments for irrigation or drainage works constructed under any proceedings had hereunder, as authorized in this chapter.

History.

1921, ch. 222, § 11, p. 492; I.C.A.,§ 41-2411; am. 1970, ch. 176, § 2, p. 508.

STATUTORY NOTES

Compiler’s Notes.

Sections 3522, 3524 and 3525 of the Compiled Statutes were repealed by S.L. 1929, ch. 262, § 12. For similar provisions of the present law, see§§ 57-204 to 57-218.

RESEARCH REFERENCES

C.J.S.

§ 42-2812. Sinking fund.

The board of county commissioners of any county in which any irrigation or drainage project is established under this chapter are authorized to provide by resolution for a sinking fund for the payment of the bonds issued under the provisions of this chapter and for such purpose and in order to provide a fund to meet all payments of the principal and interest on such bonds as the same come due and to cover deficiencies or delays in collections shall provide an assessment each year, ten per cent (10%) in excess of the amount of the principal and interest coming due the following year on the bonds issued by such county under this chapter until such time as a reserve fund shall have been accumulated in the county treasury from such excess assessments to an amount of at least ten per cent (10%) of the bonds issued by such county for such irrigation or drainage project.

History.

1921, ch. 222, § 12, p. 492; I.C.A.,§ 41-2412.

§ 42-2813. Lien statement — Contents.

At the earliest practicable time after the letting of the contract for the construction or use of any irrigation or drainage works as herein provided, the auditor of each county affected thereby shall make in tabular form a list and statement showing the following facts and in the order named, viz:

The names of the owners of all lands and the names of all public or corporate roads or railroads within their respective counties benefited by the construction of such proposed work as appears from the apportionment of benefits made by the board of county commissioners modified (if at all) by the order of confirmation of the district court.
The description of said lands as the same appears in such apportionment of benefits so affected, together with the total number of acres in each tract according to the assessment rolls or tax lists of such county.
The estimated number of acres benefited in each tract of said land as shown as aforesaid.
The amount that each of said tracts of land and that each of said corporate roads or railroads so benefited will be liable for and must pay into the treasury of each county for the said works.

History.

1921, ch. 222, § 13, p. 492; I.C.A.,§ 41-2413.

STATUTORY NOTES

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

§ 42-2814. Lien statement — Execution — Filing — Effect.

Such statement shall then be signed by the county auditor in the presence of two (2) attesting witnesses and be duly acknowledged by him, and shall then be duly filed and recorded by the county recorder of such county. The amount which each tract of land and each public or corporate road, or railroad, will be liable for and the interest thereon as hereinafter provided, shall be and remain the first and paramount lien on such land, public or corporate roads or railroads until fully paid, and shall take precedence of all mortgages, charges, encumbrances or other liens whatsoever. Such payments may be made as hereinafter provided. Such findings shall be deemed notice to all parties interested of the existence of such lien. The fees of such county recorder for such recording shall be paid by the county on the allowance of the board of county commissioners and said statement after the same has been recorded shall be returned to the county auditor to be by him placed with the other papers relating to such project and carefully preserved by him.

History.

1921, ch. 222, § 14, p. 492; I.C.A.,§ 41-2414.

§ 42-2815. Interest — Premium on bonds.

The amount that each tract of land, public or corporate road or railroad shall be liable for on account of the establishment of any irrigation or drainage project under the provisions of this chapter shall bear interest from the date of the filing of the auditor’s statement in the county recorder’s office at a rate of interest not exceeding six per cent (6%) per annum until paid, such rate of interest to be fixed and determined by the board of county commissioners at the time of establishing such project: provided, that when bonds are issued by the county for the construction or establishment of such project, the same rate of interest shall be charged as said bonds so issued bear: provided, further, that in any case and at any time after the establishment of any project and in the event there is not sufficient money in the sinking fund for the purpose the board of county commissioners may upon such notice as shall be ordered and upon a showing of the necessity to provide funds to meet payments due or maturing on the bonds issued under this chapter, either change or modify any order previously made fixing and determining a rate of interest or fix the rate of interest in the case the same has not been previously fixed or change the existing rate of interest, the same to remain in effect until such time as the amount in the sinking fund is sufficient for such purpose. All interest shall constitute an additional lien on said land or lots until fully paid, which said interest when about to be paid shall be computed by the county auditor. If bonds are sold at a premium, such premium shall become a part of the sinking fund herein provided.

History.

1921, ch. 222, § 15, p. 492; I.C.A.,§ 41-2415.

§ 42-2816. Liens — How paid — Taxes.

The payment of such liens shall be made to the same county officer to whom other county taxes are required by law to be paid and become due and delinquent on the same day of the year as other county taxes. The date of the maturity of said lien shall be fixed by resolution of the county commissioners at the time of the issue of said bonds, and shall correspond to the maturity of said bonds. The said principal lien shall bear interest at a rate not to exceed six per cent (6%) per annum, payable annually on the same day of the year provided by law for the payment of the other county taxes, such interest to be reckoned from the date of the filing of the lien statement in the office of the county recorder and interest on the whole of the principal of such lien remaining from time to time unpaid shall be paid annually on the same day of each year except as hereinafter in this section otherwise provided. In case bonds shall be issued by the county then the lien shall bear the same rate of interest as such bonds. On or before the first day of October next following such filing of the lien in the office of the county recorder, the county auditor shall for the purpose of enforcing payment of such lien, enter on a project lien record of said county the whole amount of such lien remaining unpaid against each respective tract of land subject thereto, and shall at the same time, or before tax lists or tax rolls are turned over to the county tax collector, compute interest as in this chapter provided on such unpaid amount to the first day of July following and shall enter such interest on the tax list and tax rolls for such year and the installments of such lien and interest thereon together with such amount as may be required for the sinking fund as herein provided shall be collected in the same manner as real estate taxes for that year on the tract in question are collected, and the county auditor shall in the same manner each year thereafter compute interest on the amount of such lien remaining unpaid and not previously entered on the tax rolls of prior year, or years, together with interest to the first of July and enter the same together with the installment, if any, together with such amount as may be required for the sinking fund as herein provided then due on the tax lists and tax rolls, said installment, interest and sinking fund to be collected in like manner as the first payment until the whole amount of any such lien and accumulated interest shall have been so entered on the tax rolls and tax lists of such county, and all of the provisions of law now or hereafter existing in relation to the collection of real estate taxes so far as applicable hereto are hereby adopted for the purpose of enforcing payment of such liens and installments thereof and of the interest thereon, and each of the same shall be subject to the same penalties for delinquency in payment as provided by law for other county taxes. When payment of the full amount of such liens with accumulated interest shall thus, or at any one time, be made, the auditor upon presentation of a receipt from the treasurer to that effect, shall issue under his hand and official seal a certificate of such payment and the same when recorded in the office of the county recorder shall release and discharge said lien of record. If any item of cost of an irrigation or drainage project established under this chapter from the inception of such project to its completion has been, or shall be omitted from the original tabular statement for assessments made and filed by the auditor with the county recorder, then a supplementary statement or assessment shall be made by said auditor in the same form and manner as the original statement so far as practicable showing such omitted costs, which supplementary statement or assessment shall be filed for record in the office of the county recorder and shall be due and payable and collectible in the same manner, time and form as if a part of the last annual installment of the original assessment.

History.

1921, ch. 222, § 16, p. 492; I.C.A.,§ 41-2416.

STATUTORY NOTES

Cross References.

1921, ch. 222, § 20, p. 492; I.C.A.,§ 41-2420.

Any portion of a county requiring drainage or diking, or both, may be organized into a drainage district, and when so organized such district and the board of commissioners hereinafter provided for shall have and possess the power herein conferred by law upon such district and board of commissioners, and said district shall be known and designated as drainage district No. . . . . (here insert number) of the county of . . . . (here insert name of county), of the state of Idaho, and shall have the right to sue and be sued by and in the name of its board of commissioners hereinafter provided for, and shall have perpetual succession and shall adopt and use a seal. The commissioners hereinafter provided for and their successors in office shall, from the time of the organization of such drainage district, have the power and it shall be their duty, to manage and conduct the business and affairs of the district, and make and execute all necessary contracts, employ and appoint such agents, officers and employees as may be required, and prescribe their duties, and perform such other acts as herein provided, or that may hereafter be provided by law.

History.

1913, ch. 16, § 1, p. 58; reen. C.L. 168:1; C.S., § 4493; I.C.A.,§ 41-2501.

STATUTORY NOTES

Cross References.

Drainage by irrigation districts,§ 43-305.

Irrigation districts authorized to exercise powers of drainage districts,§§ 43-306, 43-307.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

History and Validity of Chapter.

History and Validity of Chapter. The first drainage district law in this state was enacted 1903, p. 256, H. B. 154, amended 1907, p. 98, H. B. 109, and embodied in R. C.,§§ 2444-2483. The law was modeled after the Washington law, Bal. Ann. Code,§§ 3715-3754 (For present law see Rem. Rev. Stat.,§§ 4298-4346). See In re Drainage Dist. No. 3, 40 Idaho 549, 235 P. 895 (1925). The law was declared unconstitutional in Ferbrache v. Drainage Dist. No. 5, 23 Idaho 85, 128 P. 553, 44 L.R.A. (n.s.) 538, 1915C Ann. Cas. 43 (1912).

The present law was passed 1913, ch. 16, p. 58. The validity of the manner of its passage by legislature was upheld. In re Drainage Dist. No. 1, 26 Idaho 311, 143 P. 299, 1915A L.R.A. 1210 (1914).

The law was amended by 1915, ch. 42, p. 123. By 1913, ch. 17, p. 79, warrants issued under the former law were legalized (§ 42-2951). The sections of the original act were subdivided and rearranged in the compilation of Compiled Laws. CASE NOTES

Contractual Relationship.

The issuance and sale of bonds by a drainage district and the purchase thereof by bondholders ipso facto created a contractual relationship between the bondholders and the property owners within the district. Straus v. Ketchen, 54 Idaho 56, 28 P.2d 824 (1933).

Defense of Suits.

A water user who acquired his right through sale, rental, or distribution agreement from a ditch or canal company, or an irrigation or drainage district, possessed no water right which he could assert against any other appropriators where their rights were acquired from the ditch or canal company, or irrigation or drainage district, which was the appropriator and owner, and it was the district’s business to protect the appropriation and defend it in any litigation that arose. Nampa & Meridian Irrigation Dist. v. Barclay, 56 Idaho 13, 47 P.2d 916 (1935).

Drainage District As Special Improvement District.

Drainage district is a special improvement district. McDonald v. Pritzl, 60 Idaho 354, 93 P.2d 11 (1939).

Drainage District Is Local Improvement District.

Because of the mere fact that the drainage district was not included within the local improvement code, it did not necessarily follow that it was not a local improvement district it if it was such in fact. Straus v. Ketchen, 54 Idaho 56, 28 P.2d 824 (1933).

Legislative Control.

Methods of organizing drainage districts are addressed solely to legislative discretion, which discretion is not subject to review by courts except to determine whether some constitutional inhibition is violated. Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917).

Liability of Drainage Commissioner.

Lien.

Drainage commissioners were held to be liable in damages for injuries to land resulting from the negligent construction of dam causing water to overflow onto land. Chandler v. Drainage Dist. No. 2, 68 Idaho 42, 187 P.2d 971 (1947). Lien.

The assessments of benefits for the costs for construction of works in a drainage district became an undivided lien against each piece of property within the district to the extent of the assessment against it, and each bond had as its security an undivided lien against each piece of property to the extent of the amount of the assessment against it, and the security continued until each bond was paid. Straus v. Ketchen, 54 Idaho 56, 28 P.2d 824 (1933).

Nature of Districts.

Drainage districts are quasi corporations. Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917); Chandler v. Drainage Dist. No. 2, 68 Idaho 42, 187 P.2d 971 (1947).

Authority to create irrigation and drainage districts is granted by entirely separate and distinct statutes, and proceedings for their creation differ in many particulars (§ 43-101). Nampa & Meridian Irrigation Dist. v. Petrie, 37 Idaho 45, 223 P. 531 (1923).

Drainage district is the creature of statute, its powers are limited to those granted by the statute, and it has no authority to represent landowners within its boundaries in the application or appropriation of water. Sebern v. Moore, 44 Idaho 410, 258 P. 176 (1927).

Parties to Suits.

Where water owned by an irrigation district was involved in litigation, it was not necessary that the water users in such district be joined as parties litigant thereto. Nampa & Meridian Irrigation Dist. v. Barclay, 56 Idaho 13, 47 P.2d 916 (1935).

Rights of Water Users.

A water user who had acquired his right through a sale, rental, or distribution agreement or contract from a ditch or canal company, or an irrigation or drainage district, did not acquire the rights of an appropriator of water, and was not entitled to the same consideration in litigation involving the original appropriation to which the canal or ditch company, or irrigation or drainage district was entitled. Nampa & Meridian Irrigation Dist. v. Barclay, 56 Idaho 13, 47 P.2d 916 (1935).

Validity of Law.

Various provisions of the law have been attacked but uniformly upheld. Elliott v. McCrea, 23 Idaho 524, 130 P. 785 (1913); In re Drainage Dist. No. 1, 29 Idaho 377, 161 P. 315 (1916); In re Drainage Dist. No. 1, 30 Idaho 351, 164 P. 1018 (1917); Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917).

Water Users As Stockholders.

An irrigation district is a corporation organized under the authority of law, and is the owner of the appropriation, and the landowners in the district, for all practical purposes, sustain the same relation to the corporation that stockholders in a private corporation sustain to the corporation. Nampa & Meridian Irrigation Dist. v. Barclay, 56 Idaho 13, 47 P.2d 916 (1935).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-2902. Appropriation of water available for irrigation purposes.

The boards of commissioners of drainage districts are hereby authorized and empowered to file upon and appropriate in the manner provided by law, waters created or made available for irrigation purposes, by the construction of drainage works within such district, whenever the same can be applied to a beneficial use upon lands within the district, without impairing prior existing rights, which waters shall be equitably and ratably distributed in the manner provided by law to lands within the district which may beneficially use the same in the proportion that the assessment for drainage of each tract of said land bears to the whole assessment within the district: provided, that where lands within the district have an adequate water right and the water made available for irrigation by the construction of such works, may be beneficially used upon other lands within the district, the board of commissioners may supply such lands with water, upon their assuming to pay their proportionate share of the drainage assessments, and credit other lands within the district creating such water supply with their ratable proportion, of the actual cost of the delivery thereof.

History.

1923, ch. 134, § 1, p. 195; I.C.A.,§ 41-2502.

CASE NOTES

Purpose of Act.

The primary object of this act is the creation of a drainage district and its government in the same manner as similar organizations such as irrigation districts, good road districts and improvement districts. Chandler v. Drainage Dist. No. 2, 68 Idaho 42, 187 P.2d 971 (1947).

Subject to Prior Appropriation.

Appropriation by commissioners of drainage district of surface and seepage waters collected in district drain was subject to rights of one who appropriated them before construction of ditch. Sebern v. Moore, 44 Idaho 410, 258 P. 176 (1927).

Cited

Nampa & Meridian Irrigation Dist. v. Barclay, 56 Idaho 13, 47 P.2d 916 (1935).

§ 42-2903. Appropriation of irrigation waters — Assessments for expenses.

The board of commissioners of drainage districts are hereby authorized and empowered to assess upon lands within the district, benefited by such filing and appropriation as provided in section 42-2902[, Idaho Code], a sufficient amount to pay the expenses thereof, which shall be levied and collected in the same manner as funds are now levied and collected for the maintenance of the drainage works and the funds so obtained may be expended for the purposes authorized by this act.

History.

1923, ch. 134, § 2, p. 195; I.C.A.,§ 41-2503.

STATUTORY NOTES

Cross References.

Assessments for maintenance of drainage works,§§ 42-2934 to 42-2937.

Compiler’s Notes.

The bracketed insertion near the middle of the section was added by the compiler to conform to the statutory citation style.

The words “this act” at the end of the section refer to S.L. 1923, chapter 134, which is codified as§§ 42-2902 and 42-2903.

CASE NOTES

Collection of Assessment.

Tax collector must receive general taxes tendered, although taxpayer refuses to pay drainage district assessment. Booth v. Clark, 42 Idaho 284, 244 P. 1099 (1926).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-2904. Municipality may act as drainage district.

Any village or city already incorporated, or which may hereafter be incorporated, may exercise the functions of a drainage district under the provisions of this chapter, or the whole or any portion of any such village or city may be included with other territory in a common district under the provisions for the establishment thereof as provided for herein.

History.

1913, ch. 16, § 34, p. 58; compiled and reen. C.L. 168:2; C.S., § 4494; I.C.A.,§ 41-2504.

§ 42-2905. Petition for organization.

For the purpose of the formation of such drainage district a petition shall be presented to the clerk of the district court of the county in which a greater portion of the lands of said proposed district are located, which petition shall set forth the object of the organization of said district, shall designate temporary boundaries thereof and shall set forth approximately the number of acres of land therein, and shall contain a description of the proposed system of drainage or diking or both, designating the point or points, if any there may be, which shall be the outlet or outlets for the drainage of said district, the general route over which the main ditch or ditches are to be constructed, together with the proposed spurs or branches, and the general location of the dikes or levees, if any there may be, and set forth the further fact that the establishment of said district and the proposed system of drainage will be conducive to the public health, convenience and welfare, or increase the public revenue, or that the establishment of said district and the said system of drainage and reclamation is a proper and advantageous method of accomplishing the relief sought. Said petition shall be signed by such number as own at least one-third of the acreage in the proposed district, and shall pray that the same be organized under the provisions of this chapter. Community property may be represented by either the husband or the record owner.

History.

1913, ch. 16, part of § 2, p. 58; reen. C.L. 168:3; am. 1919, ch. 183, § 1, p. 558; C.S., § 4495; am. 1927, ch. 36, § 1, p. 48; I.C.A.,§ 41-2505.

STATUTORY NOTES

Effective Dates.

Section 2 of S.L. 1927, ch. 36 declared an emergency.

CASE NOTES

Contract for Attorney’s Fees.

Inception of Organization.

In action to recover attorney’s fees under contract with drainage district providing for payment of such charges as court should provide, it was error to refuse jury trial. Neal v. Drainage Dist. No. 2, 42 Idaho 624, 248 P. 22 (1926). Inception of Organization.

The organization of a drainage district has its inception in the filing of a petition under this section. Straus v. Ketchen, 54 Idaho 56, 28 P.2d 824 (1933).

Nature of Districts.

Drainage districts are quasi corporations. Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917).

Withdrawal of Names.

Original signers may withdraw their names at any time prior to determination by court that petition contains signatures of owners of at least one fifth of acreage in proposed district. Maxwell v. Terrell, 37 Idaho 767, 220 P. 411 (1923).

Cited

Booth v. Groves, 43 Idaho 703, 255 P. 638 (1927); Field v. Drainage Dist. No. 1, 46 Idaho 248, 267 P. 443 (1928).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-2906. Petition — Bond — Condition for withdrawal of names.

Said petitioners shall, at the time of the filing of the petition, file a bond with the clerk of the district court of the county in which said proposed district is located, running to the state of Idaho, in the penal sum of $500.00, with two or more sureties, to be approved by the judge of the district court, conditioned that they will pay all costs in case said district for any reason shall not be established.

In case said district be not established, then all costs and expenses shall be collectible on the bond hereinbefore provided for, and any person having a charge against said district shall have a right of action thereon: provided, that when said petition is filed with the clerk of said court no petitioner shall be allowed to withdraw his name or land therefrom without tendering into court his pro rata share of all costs and expenses incurred by petitioners to the date of said withdrawals.

Appeal.

This section does not provide for appeal from order of district court declaring district duly organized, as such order does not finally adjudicate any of the rights involved in proceedings. In re Drainage Dist. No. 1, 30 Idaho 351, 164 P. 1018 (1917); Rhodenbaugh v. Stingel, 31 Idaho 594, 174 P. 604 (1918).

Effect of Order.

After order was entered declaring drainage district organized, such order had effect of lis pendens. Maxwell v. Terrell, 37 Idaho 767, 220 P. 411 (1923).

Hearing Part of Organization Proceedings.

The inception of the organization of a drainage district has as one of its elements the hearing of a petition filed under§ 42-2905. Straus v. Ketchen, 54 Idaho 56, 28 P.2d 824 (1933).

Inclusion of Lands.

Inclusion of land in drainage district was distinct from power of district after formation to levy assessments. Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917).

Special Assessments.

To justify special assessment there must be determination of benefits accruing, and, unless legislature determines such fact, landowner must have opportunity to appear at some stage of proceedings to contest or be heard. Booth v. Groves, 43 Idaho 703, 255 P. 638 (1927).

Assessment for improvements was not justified unless benefit resulted to property assessed, as it would have constituted taking of property without due process. Booth v. Groves, 43 Idaho 703, 255 P. 638 (1927).

Special assessment for drainage purposes is not tax within meaning of constitutional provisions for levying taxes. Booth v. Groves, 43 Idaho 703, 255 P. 638 (1927).

Assessments in excess of the amount confirmed by the court are voidable. McDonald v. Pritzl, 60 Idaho 354, 93 P.2d 11 (1939).

Valid Objections.

It was not valid objection to establishment of drainage district that minority of acreage within boundaries may receive no special benefit. Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917).

Withdrawal of Names.

Signers of petition to inaugurate proceedings had right to withdraw their names from petition at any time prior to determination by court that it contained signatures of one fifth of owners of acreage in proposed district. Maxwell v. Terrell, 37 Idaho 767, 220 P. 411 (1923).

Cited

Boone v. District Court, 38 Idaho 688, 224 P. 429 (1924).

RESEARCH REFERENCES

Am. Jur. 2d.

§ 42-2909. Decree.

Upon the entry of the findings of the final hearing of said petition, as set forth in the last preceding section, said judge of the district court of the county in which the proposed drainage district is located, if he finds said proposed drainage system to be conducive either to the public health, welfare or convenience, or will increase the public revenue, or be of special benefit to the majority in acreage of the lands included in said boundaries, shall declare said district duly organized, and to be known as drainage district No. . . . . (here insert number) of the county of . . . . (here insert name of county), in the state of Idaho. The clerk of said district court shall cause a copy of the order declaring said district to be organized, duly certified, to be filed in the office of the secretary of state, and from and after the date of said filing, said organization shall be deemed complete.

History.

1913, ch. 16, parts of § 4, p. 58; reen. C.L. 168:7; C.S., § 4499; I.C.A.,§ 41-2509.

STATUTORY NOTES

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

CASE NOTES

Cited

Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917); Boone v. District Court, 38 Idaho 688, 224 P. 429 (1924); Drainage Dist. No. 2 v. Ada County, 38 Idaho 778, 226 P. 290 (1924); Booth v. Groves, 43 Idaho 703, 255 P. 638 (1927); Straus v. Ketchen, 54 Idaho 56, 28 P.2d 824 (1933).

RESEARCH REFERENCES

C.J.S.

§ 42-2910. Appointment of drainage commissioners — Qualification — Bond — Oath — Organization of board.

The judge of the district court within ten (10) days thereafter shall appoint three (3) drainage commissioners. The commissioners shall be appointed from among those living in the county where said proposed district is located.

The board of drainage commissioners appointed as aforesaid shall be entitled to enter upon the duties of their office upon qualifying as county officers are required to qualify, and upon each drainage commissioner giving a bond to the state of Idaho, for the benefit of said drainage district, for the faithful performance of his duties as such drainage commissioner, in the penal sum of $5000, with one or more sureties to be approved by the judge of the district court. Provided that the judge of the district court, upon application and proper showing by the board of drainage commissioners, may enter an order reducing the penalty of the bond to such sum as may appear to him to be reasonable and adequate under the showing made. The drainage commissioners shall take the oath of office and file their bonds within fifteen (15) days after they are appointed; and they shall hold office until their successors are duly appointed and qualified. Each drainage commissioner thereafter who may be appointed shall enter into a like bond and of like effect upon entering upon his duties, which bond shall be approved by the judge of the district court of the county in which said drainage district is located. The bonds of the drainage commissioners shall be filed with the clerk of the district court and kept in his custody. Immediately after their appointment and their bonds have been filed and approved, the drainage commissioners shall organize themselves into a board, and they shall by lot determine the terms of their office, which shall be one (1), two (2) or three (3) years respectively. Annually thereafter the judge of the district court of the county in which said district is located shall appoint one (1) drainage commissioner whose term of office shall be for three (3) years.

History.

1913, ch. 16, parts of §§ 4 and 5, p. 58; reen. C.L. 168:8; C.S., § 4500; I.C.A.,§ 41-2510; am. 1933, ch. 21, § 1, p. 27.

STATUTORY NOTES

Effective Dates.

Section 2 of S.L. 1933, ch. 21 declared an emergency. Approved Feb. 2, 1933.

CASE NOTES

Constitutionality.

Cited

Provision authorizing district judge of judicial district in which drainage district was located to appoint drainage commissioners for district was not in violation of the constitution and was not an infringement by the judicial department of the state government upon the functions of the executive branch of the government. Elliott v. McCrea, 23 Idaho 524, 130 P. 785 (1913). Cited Ingard v. Barker, 27 Idaho 124, 147 P. 293 (1915); Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917); Booth v. Groves, 43 Idaho 703, 255 P. 638 (1927).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-2911. Officers — Meetings.

The board of commissioners of such district shall elect one of their number chairman and one secretary, and shall keep minutes of all their proceedings. The drainage commissioners shall hold their meetings for the transaction of business at any place in the county or counties in which the district is located.

History.

1913, ch. 16, parts of §§ 6, 7, p. 58; reen. C.L. 168:9; C.S., § 4501; I.C.A.,§ 41-2511.

CASE NOTES

Cited

Drainage Dist. No. 2 v. Ada County, 38 Idaho 778, 226 P. 290 (1924).

RESEARCH REFERENCES

C.J.S.

§ 42-2912. Vacancies.

In case a vacancy or vacancies occur in said board by death, failure to appoint, failure to qualify, or resignation of one or more of the members thereof, such vacancy or vacancies shall be filled at once by appointment by the judge of the district court of the county in which said district is located, and said appointee shall serve for the unexpired term, or until his successor is appointed and his bond approved.

History.

1913, ch. 16, part of § 8, p. 58; reen. C.L. 168:10; C.S., § 4502; I.C.A.,§ 41-2512.

§ 42-2913. Compensation.

The drainage commissioners shall receive for their services such sum as the board of drainage district commissioners fix by resolution for each day they shall actually be engaged in the business of their office, and actual and necessary expenses. In addition, the commissioners shall each receive a mileage allowance computed at the rate established by the state board of examiners for employees of the state for each mile driven and such allowance shall be the full amount allowed for travel expense.

History.

1913, ch. 16, part of § 7, p. 58; am. 1915, ch. 42, part of § 1, p. 124; reen. C.L. 168:11; C.S., § 4503; I.C.A.,§ 41-2513; am. 1957, ch. 78, § 1, p. 127; am. 1967, ch. 22, § 1, p. 39; am. 1974, ch. 160, § 1, p. 1394; am. 1986, ch. 62, § 1, p. 179; am. 1992, ch. 52, § 1, p. 156; am. 2018, ch. 92, § 1, p. 197.

STATUTORY NOTES

Amendments.

The 2018 amendment, by ch. 92, in the first sentence, deleted “but not greater than the amount allowed in section 59-509(h), Idaho Code” following “by resolution” and added “and actual and necessary expenses” at the end.

Effective Dates.

Section 2 of S.L. 1957, ch. 78 declared an emergency. Approved February 27, 1957.

CASE NOTES

Cited

In re Drainage Dist. No. 1, 29 Idaho 377, 161 P. 315 (1916).

§ 42-2914. Examination of lands — Report of commissioners — Apportionment and reapportionment of benefits and damages.

As soon as may be after their appointment, or within such time as the court may direct, the commissioners shall examine the lands described in the petition and proposed to be drained and protected, and the lands over and upon which the work is proposed to be constructed and shall determine and report:

Whether the starting point, route and terminus of the proposed work and the proposed location thereof, is or are in all respects proper and feasible, and if not, what is or are so.
The estimated cost of the proposed work, including all incidental expenses and the cost of proceedings therefor.
The probable cost of keeping the same in repair after the work is completed.
What lands will be injured thereby and the aggregate amount of such injuries; and they shall award to each tract or lot, by whomsoever held, the amount of damage so determined by them.
What lands will be benefited by the construction of the proposed work, whether the benefits will equal or exceed the aggregate cost of constructing such work, including all incidental expenses, costs of proceedings and damages; and they shall apportion and assess the estimated cost of the same on the lands so benefited by setting opposite the correct description of each tract, lot or easement, the portion of such cost assessed as benefits thereon. And if any particular part of the work so proposed to be done shall be assessed upon any particular tracts or lots of land or upon any municipality or corporation they shall so specify; and if any municipality or corporation should in their judgment bear a part of the expense or as such will derive a public or special benefit from the whole or any part of such proposed work, they shall so report and assess the amount of such benefits.
Whether the proposed district, as set out in the petition filed, will embrace all the lands that may be damaged or benefited by the proposed work, and if not, what additional lands will be benefited or damaged and the amount of the benefits or damages in the same manner as though such lands were included in such original petition.
If the commissioners determine the lands benefited or the amount of said benefits has either changed or is in error, the commissioners may petition the court to reapportion the benefits to part or all of the lands within the district. Upon receipt of a petition, the court shall make and enter an order fixing a time and place when and where all persons interested may appear and object to the reapportionment of benefits, and the clerk of the court shall cause publication of the order in three (3) consecutive weekly issues in a newspaper of general circulation within each county in which any of the lands for which reapportionment of benefits is sought are located. Any landowner affected by the reapportionment of benefits may object against the whole or any part of the reapportionment pursuant to the provisions of section 42-2920, Idaho Code. Upon a hearing pursuant to the provisions of section 42-2921, Idaho Code, the court shall issue an order setting forth the reapportionment of benefits, if any.

History.

1913, ch. 16, § 9, p. 58; reen. C.L. 168:12; C.S., § 4504; I.C.A., § 41-2514; am. 2012, ch. 106, § 1, p. 282. STATUTORY NOTES

Amendments.

The 2012 amendment, by ch. 106, inserted “and reapportionment” in the section heading and added subsection 7.

CASE NOTES

Amount of Assessments.

“There is,” the court held, “no merit in a contention that the property owners within the district can be called upon and required to pay assessments equal to the amount of the actual benefits inuring to the respective parcels of land by reason of the improvements made in a drainage district.” Straus v. Ketchen, 54 Idaho 56, 28 P.2d 824 (1933).

Assessments Against Land.

Assessment must be made against tracts of land in district and not against owners. Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917).

Canals.

Canal and ditch companies, though not organized for profit, were not exempt from assessment. In re Drainage Dist. No. 1, 29 Idaho 377, 161 P. 315 (1916).

It was intention of legislature that rights of way for canals should be assessed same as other high land. Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917).

Conclusiveness of Decree.

Constitutionality.

One who had been notified but made no protest against confirmation, but paid assessments thereunder, could not complain in proceedings to enjoin issuance of bonds that notice was insufficient unless defect was one rendering proceedings void. Field v. Drainage Dist. No. 1, 46 Idaho 248, 267 P. 443 (1928). Constitutionality.

This section satisfies requirements that private property shall not be taken for public use without just compensation or due process of law. Drainage Dist. No. 2 v. Extension Ditch Co., 32 Idaho 314, 182 P. 847 (1919).

Description.

Statute does not require that each right of way or easement shall be divided up into small parcels and assessment fixed against each parcel. In re Drainage Dist. No. 1, 29 Idaho 377, 161 P. 315 (1916).

Elements of Benefit.

There were two grounds for assessments, first against lands benefited generally, second against municipalities or corporations specially benefited. In re Drainage Dist. No. 1, 29 Idaho 377, 161 P. 315 (1916); In re Drainage Dist. No. 3, 43 Idaho 803, 255 P. 411 (1927).

In determining acreage benefited, responsibility of high lands to low lands may be considered. Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917).

Enhanced value of low lands should be taken into consideration in determining proportion of cost. Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917).

Assessments referring to municipalities and corporations in subd. 5 are not to be made as benefits to any tract of land, but upon theory of public benefit. Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917).

Liability of Owner.

The liability of each particular landowner became fixed and determined at the time of the confirmation of the assessment for costs, and the assessments thus imposed became the limit of his liability for construction costs. McDonald v. Pritzl, 60 Idaho 354, 93 P.2d 11 (1939).

Limit of Liability.

Where assessments were confirmed by the court, but an amount in excess of such confirmed amount was levied by drainage district, but due to failures to pay, the amount actually received did not equal the confirmed amount, a landowner could not be subjected to additional assessments for the difference between the amount collected and the amount proved. McDonald v. Pritzl, 60 Idaho 354, 93 P.2d 11 (1939).

Procedure Optional.

In taking property within drainage district for right of way, it was optional with district to invoke proceedings provided for under the general statute governing eminent domain, or to exercise that right under this chapter. Drainage Dist. No. 2 v. Extension Ditch Co., 32 Idaho 314, 182 P. 847 (1919).

Property Not Assessable.

No assessment can be levied against easement belonging to United States government and it is properly excluded from district. In re Drainage Dist. No. 3, 43 Idaho 803, 255 P. 411 (1927).

Railroad Right of Way.

While right of settler to receive water through ditch was easement, it was not such easement subject to assessment as was contemplated by this section. In re Drainage Dist. No. 3, 43 Idaho 803, 255 P. 411 (1927). Railroad Right of Way.

Railroad right of way situated on high and dry land above area to be drained and receiving no direct benefit could not be assessed under this section. In re Drainage Dist. No. 3, 43 Idaho 803, 255 P. 411 (1927).

Review of Assessments.

Supreme court could not determine whether assessments were arbitrary or unjust without the evidence that commissioners had before them. In re Drainage Dist. No. 1, 29 Idaho 377, 161 P. 315 (1916).

Cited

Neal v. Drainage Dist. No. 2, 42 Idaho 624, 248 P. 22 (1926).

§ 42-2915. Assessment of benefits against high lands.

In determining the amount which each tract of land will be benefited by such proposed drainage system the commissioners shall consider the damage done to low land from seepage and saturation by irrigation water from high land, and the necessity for the carrying off of waste water, and such high lands shall be considered as being benefited to the extent and in the amount that such lands are responsible for damage to low lands from seepage and saturation by irrigation water.

History.

1913, ch. 16, § 9a, as added by 1915, ch. 42, § 2, p. 124; reen. C.L. 168:13; C.S., § 4506; I.C.A.,§ 41-2515.

CASE NOTES

Basis of Assessment.

Prior to this section, benefits were to be assessed upon the principles governing special assessment in local improvement districts, that is, on basis of benefits received but this section authorizes assessments also based on the responsibility for injuries inflicted. Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917).

Benefits to low lands are to be determined in accordance with the enhanced value thereof and benefits to high lands are to be determined in accordance with the extent to which lands are responsible for damages to low lands by reason of seepage of irrigation water which contributes to the water-logged condition of such low lands and the amount of such responsibility is the proportion which the amount of water contributed by such high lands bears to the combined contribution of water from all sources by irrigation. Drainage Dist. No. 2 v. Extension Ditch Co., 32 Idaho 314, 182 P. 847 (1919).

Any portion of the benefits to low lands from construction of drainage works arising from enhancement of value of such lands if they were in their natural state, or by changing conditions other than the damage caused by seepage and saturation from irrigation water, could not be considered in determining the assessment to be charged to the high lands. Drainage Dist. No. 2 v. Extension Ditch Co., 32 Idaho 314, 182 P. 847 (1919).

After determination of the proportion of the cost of drainage works which should be borne by high lands, the remainder should be apportioned and assessed to various tracts of low lands according to benefits. Drainage Dist. No. 2 v. Extension Ditch Co., 32 Idaho 314, 182 P. 847 (1919). Rights of way for canals were assessable with other high lands. Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917).

Canals and Ditch Companies.

Canal or ditch company which permitted water to escape from its canal, either by overflow or percolation, to injury of another, could be required to assist in the construction of drainage system that would protect lower lands from such damage. In re Drainage Dist. No. 1, 29 Idaho 377, 161 P. 315 (1916).

Constitutionality.

Legislature has power to provide that lands which, by artificial irrigation, contribute by seepage to swampy condition of low lands should contribute proportion of cost of reclaiming low lands. In re Drainage Dist. No. 1, 29 Idaho 377, 161 P. 315 (1916); Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917).

Construction.

This section, by permitting assessments against upper lands for construction of drainage system made necessary by irrigation of and consequent seepage from such uplands, is a partial return to the common-law rule by which one who diverted water was liable for all damages resulting therefrom, even though not the result of negligence. In re Drainage Dist. No. 1, 29 Idaho 377, 161 P. 315 (1916); Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917).

High Lands and Low Lands Defined.

Term “high lands” means lands which will not be enhanced in value by construction of drainage works, but which contribute by seepage of irrigation water therefrom to saturation or water-logged condition of “low lands,” and term “low lands” means lands which will be benefited in the ordinary sense of enhancement of value. Drainage Dist. No. 2 v. Extension Ditch Co., 32 Idaho 314, 182 P. 847 (1919).

Term “high lands” may include canals, intention of law being to provide that if water escapes by seepages from irrigation canal and contributes to water-logged condition of land in drainage district, right of way of such canal should be assessed its proportion of the cost of construction of the drainage works the same as other lands. Drainage Dist. No. 2 v. Extension Ditch Co., 32 Idaho 314, 182 P. 847 (1919).

Responsible Defined.

“Responsible” means physical responsibility, whether or not owner of upland is legally liable for damages under law of the arid states, where legal responsibility is limited to negligence in construction or operation of irrigation system. In re Drainage Dist. No. 1, 29 Idaho 377, 161 P. 315 (1916); Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917).

Cited

Nampa & Meridian Irrigation Dist. v. Petrie, 37 Idaho 45, 223 P. 531 (1923).

RESEARCH REFERENCES

Am. Jur. 2d.

§ 42-2916. Duties of engineers and surveyors — Preliminary survey.

CASE NOTES

Benefits Defined.

Even if conceded that for determining whether drainage district shall be organized the term “benefits” shall mean enhancement of value, it does not follow that same meaning must be applied in determining how cost of construction shall be levied. Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917).

Liability of Owner.

The liability of each particular landowner became fixed and determined at the time of the confirmation of the assessment for costs, and the assessments thus imposed became the limit of liability for construction costs. McDonald v. Pritzl, 60 Idaho 354, 93 P.2d 11 (1939).

Limitation on Amount of Assessments.

History.

1913, ch. 16, part of § 11, p. 58; reen. C.L. 168:20; C.S., § 4513; I.C.A.,§ 41-2522.

STATUTORY NOTES

Cross References.

Appeals,§ 42-2924.

CASE NOTES

Assessment of Benefits.

Property owners could not attack assessments of benefits as to their land in a proceeding in 1950 to enjoin tax sale where benefits were originally assessed in 1927, reassessed in 1935, and refunding bond proceeding determined in 1942 from which decrees no appeal was taken as to assessment of benefits. Kelson v. Drainage Dist. No. 10 Boundary County, 77 Idaho 320, 291 P.2d 867 (1955).

An order confirming original assessments in drainage district by the district court is final and conclusive unless an appeal is entered within 30 days of decree. Kelson v. Drainage Dist. No. 10 Boundary County, 77 Idaho 320, 291 P.2d 867 (1955).

Conclusiveness of Decree.

One who had been notified, made no protest against confirmation, and paid assessments thereunder, could not complain in proceedings to enjoin issuance of bonds that notice were insufficient unless defect was one rendering proceedings void. Field v. Drainage Dist. No. 1, 46 Idaho 248, 267 P. 443 (1928).

Cited

Straus v. Ketchen, 54 Idaho 56, 28 P.2d 824 (1933).

RESEARCH REFERENCES

Am. Jur. 2d.

§ 42-2923. Supplemental report.

The court may also permit the commissioners to present and file a supplemental report as to any matter which, pursuant to the provisions of section 42-2914[, Idaho Code,] might have been included in the original report presented by them, and after reasonable notice given to parties adversely interested in such manner as the court may direct, the court may, upon the hearing in the matter, make such order as the same may require.

History.

1913, ch. 16, part of § 11, p. 58; compiled and reen. C.L. 168:21; C.S., § 4514; I.C.A.,§ 41-2523.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion near the middle of the section was added by the compiler to conform to the statutory citation style.

§ 42-2924. Appeals.

Every person or corporation feeling himself or itself aggrieved by the judgment for damages or the assessment for benefits may appeal to the supreme court of this state in the manner provided by law for appeals in civil actions to the Supreme Court within thirty days after the entry of the judgment confirming the report of the commissioners; and such appeal shall bring before the supreme court the propriety and justness of the amount of damages or assessment of benefits in respect to the parties to the appeal. Upon such appeal no bond shall be required and no stay shall be allowed.

History.

1913, ch. 16, § 13, p. 58; reen. C.L. 168:22; C.S., § 4515; I.C.A.,§ 41-2524.

STATUTORY NOTES

Cross References.

Appeals in civil actions,§§ 13-201 to 13-203.

CASE NOTES

Appeal from Assessment of Benefits.

An order confirming original assessments in drainage district by the district court was final and conclusive unless an appeal had been entered within thirty days of decree. Kelson v. Drainage Dist. No. 10 Boundary County, 77 Idaho 320, 291 P.2d 867 (1955).

Bond Not Required.

Last sentence of this section controls over portion of first sentence providing that aggrieved party “may appeal to the supreme court of this state in the manner provided by law for appeals in civil actions to the Supreme Court.” In re Drainage Dist. No. 3, 40 Idaho 549, 235 P. 895 (1925).

Conflict in Evidence.

There is nothing in this section to take case out of general rule that verdict or judgment in trial court will not be disturbed on account of conflicting evidence where sufficient proof remains to sustain finding. Burt v. Stuart, 33 Idaho 138, 190 P. 713 (1920).

Writ of Prohibition.

While it is true that an order complained of, involving waters in an irrigation district, may be reversed on appeal after a final judgment is entered, when it is made to appear that the order in question would probably entail bringing in a couple of hundred defendants and requiring that many answers, and the subsequent calling of a multitude of witnesses to sustain the issues tendered, and the consequent delay and expense it becomes apparent that the remedy by appeal is not adequate, and in these circumstances, a writ of prohibition to prevent the further proceedings under the order will issue. Nampa & Meridian Irrigation Dist. v. Barclay, 56 Idaho 13, 47 P.2d 916 (1935).

Cited

Field v. Drainage Dist. No. 1, 46 Idaho 248, 267 P. 443 (1928).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-2925. Procedure on dismissal of proceedings.

In case the report of the commissioners hereinbefore provided for shall not be confirmed upon the hearing of the objections and remonstrances thereto, the court or judge shall dismiss such proceedings and in such case judgment shall be rendered for the costs and expenses of said proceedings against said district, and no further proceedings shall be had or done thereon; and in that event the commissioners within thirty (30) days after such dismissal shall file with the clerk of the court a statement of all costs and expenses incurred by them which statement shall be itemized and verified by the oath of one (1) of the commissioners: provided, that in case of such dismissal the said commissioners shall have the right of appeal to the Supreme Court and such appeal shall be taken in the same manner as provided for in section 42-2924[, Idaho Code].

History.

1913, ch. 16, § 14, p. 58; reen. C.L. 168:23; C.S., § 4516; I.C.A.,§ 41-2525.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion at the end of this section was added by the compiler to conform to the statutory citation style.

CASE NOTES

Costs.

There must be a judgment against district before tax levy can be made by the commissioners to pay costs and expenses contemplated under this section. In re Drainage Dist. No. 5, 39 Idaho 477, 228 P. 881 (1924).

§ 42-2926. Procedure for payment of damages awarded — Determination of conflicting claims.

Any person or corporation claiming to be entitled to any money ordered paid by the court, as provided in this chapter, may apply to the court therefor and upon furnishing evidence satisfactory to the court that he be entitled to the same, the court shall make an order directing the payment to such claimant of the portion of such money as he or it may be found entitled to; but, if upon application, the court or judge thereof shall decide that the title to the land, real estate or premises specified in the application of such claimants is in such condition as to require that an action be commenced to determine the title of claimants thereto, it shall refuse such order until such action is commenced and the conflicting claims to such land, real estate or premises be determined according to law.

History.

1913, ch. 16, § 15, p. 58; reen. C.L. 168:24; C.S., § 4517; I.C.A.,§ 41-2526.

§ 42-2927. Lands of state and its subdivisions.

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-2931. Additional construction work and assessments.

In any case where the work set out in the plan for drainage as provided in this chapter, or the work or improvements and the system of diking and reclamation constructed or in process of construction, are deemed or found by the board of commissioners of any drainage district at any time before or after the completion thereof to be insufficient or inadequate for any reason or by reason of any occurrence or circumstance, said board may order and cause to be done and constructed (in the manner provided and permitted by this chapter and subject to the judicial proceedings required by this chapter) additional work and improvements for the purpose of rendering sufficient and adequate the work and improvements and system of reclamation and drainage already constructed or for the purpose of reconstructing and for the preservation of the same; and also in any case where in the judgment of said board, new, additional or separate works and improvements (in the nature of original construction or reconstruction work and improvements) shall be or become necessary for the sufficient, safe and adequate drainage and reclamation of said district or for the safety and preservation of the work, improvements and system already constructed, said board may order and cause to be done and constructed such new, additional and separate works and improvements; and a new estimate of benefits may be made in each and all of said cases based on the additional or separate additional work or construction or reconstruction work proposed; and additional assessments for each or all of such additional or separate works and improvements may be made on the lands benefits in conformity with the procedure provided in this chapter as in the case of original construction; and the lands in said district, or any part of such lands, shall be assessed in proportion to the benefits estimated as accruing to such lands because of such additional or separate work and improvements or because of such separate or additional construction and reconstruction work and improvements. The provisions of chapter 29[, title 42, Idaho Code,] shall apply to all proceedings had or matters or things done pursuant to the authorization of this section, the necessary substitutions and changes being made because of any variant circumstances.

History.

1913, ch. 16, part of § 41, p. 58; compiled and reen. C.L. 168:28; C.S., § 4522; I.C.A.,§ 41-2531; am. 1935, ch. 49, § 1, p. 89.

STATUTORY NOTES

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

The bracketed insertion near the end of the section was added by the compiler to conform to the statutory citation style.

CASE NOTES

Additional Assessments Prohibited.

Estoppel to Question Validity.

Party was estopped to question validity of assessment to cover additional expenditures after improvement had been completed where he was fully aware of all the circumstances of the case and had encouraged the making of such additional expenditures. Hemenway v. Craney, 36 Idaho 11, 208 P. 407 (1922).

Liability of Owner.

Limitation on Assessments Levied.

The power to levy assessments for payment of drainage district bonds was limited as to interest as well as to principal to the original assessment of benefits (except as provided by§ 42-2930 and this section). Breckenridge v. Johnston, 62 Idaho 121, 108 P.2d 833 (1922).

Remedy of Landowner for Drainage Defects.

A landowner was not without a remedy for existing defects in his drainage district since this section provides, where drainage work is found insufficient, for a new estimate of benefits based on additional work to be undertaken, and additional assessments imposed, in proceedings in the state district court for the county in which the district is situated. Woldson v. Bauman, 132 F.2d 622 (9th Cir. 1942).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-2932. Fees for service of process.

Fees for service of all process necessary to be served under the provisions of this chapter shall be the same as for like services in other civil cases, or as is or may be provided by law.

History.

1913, ch. 16, § 37, p. 58; reen. C.L. 168:29; C.S., § 4523; I.C.A.,§ 41-2532.

STATUTORY NOTES

Right of interested person to demand statement showing amount of lien and total payments,§ 42-2967.

CASE NOTES

Cited

Drainage Dist. No. 2 v. Ada County, 38 Idaho 778, 226 P. 290 (1924); Field v. Drainage Dist. No. 1, 46 Idaho 248, 267 P. 443 (1928); Straus v. Ketchen, 54 Idaho 56, 28 P.2d 824 (1933).

RESEARCH REFERENCES

C.J.S.

§ 42-2936. Assessments entered as tax liens — Installments.

A similar transcript duly certified by the clerk which shall contain a list of the names of all persons and corporations benefited by said improvement and the amount of the assessment upon each lot, parcel or governmental subdivision shall be by said clerk filed with the auditor of the county, who shall immediately enter the same upon the tax rolls of his office, as provided by law for the entry of other taxes, against the land of each of the said persons named in the list, together with the amounts thereof; and the same shall be subject to the same interest and penalties in case of delinquency as in case of general taxes and shall be collected in the same manner as other taxes and subject to the same right of redemption, and the lands sold for the collection of said taxes shall be subject to the same right of redemption, as the sale of lands for general taxes; provided, that said assessment shall not become due and payable except at such time or times and in such amounts as may be designated by the board of commissioners of said drainage district, which designation shall be made to the county auditor by said board of commissioners of said drainage district, by serving written notice upon the county auditor designating the time and the amount of the assessment, said assessment to be in proportion to the benefits to become due and payable, which amount shall fall due at the time of the falling due of general taxes, and the amount so designated shall be added by the auditor to the general taxes of said person, persons or corporation, according to said notice, upon the assessment rolls in his said office, and collected therewith: provided further, that no one call for assessment for the payment or retirement of any bonds or warrants by said commissioners shall be in amount to exceed twenty percent (20%) of the actual amount necessary to pay the cost of proceedings, and the establishment of said district and drainage system and the cost of construction of said work. In all calls for assessments made under the provisions hereof for the payment or retirement of any bonds or warrants issued subsequent to February 25, 1935, the commissioners shall itemize the various items for which a call is made, specifying the percentage called against the assessment roll for bond interest, bond redemption, warrant interest, warrant redemption, operation and maintenance and any other purpose for which a call is made. The board by resolution shall, prior to any call for the payment or retirement of any bonds or warrants issued subsequent to February 25, 1935, determine separately the interest requirement for bonds and warrants outstanding and shall not make a call or levy for interest payment in excess of the actual amount required stated separately. Calls made for the payment of such prior bonds and warrants issued prior to September 25, 1935, as to itemization thereof, as to the specification of the percentage called against the assessment roll for the foregoing purposes and as to the separate determination of interest requirements for the payment of outstanding bonds and warrants and as to the call or levy in amount for interest or principal payments or for the payment of funding or refunding bonds issued heretofore or hereafter to fund or to refund or to pay any of said prior warrants or bonds, shall be as provided by the statutes of Idaho in effect prior to February 25, 1935.

History.

1913, ch. 16, part of § 16, p. 58; reen. C.L. 168:33; C.S., § 4527; I.C.A.,§ 41-2536; am. 1935, ch. 55, § 1, p. 103; am. 1939, ch. 229, § 1, p. 512; am. 2018, ch. 92, § 2, p. 197.

STATUTORY NOTES

Amendments.

The 2018 amendment, by ch. 92, inserted “for the payment or retirement of any bonds or warrants” in the second proviso near the end of the first sentence.

Effective Dates.

Section 2 of S.L. 1939, ch. 229 declared an emergency. Approved Mar. 11, 1939.

CASE NOTES

Assessment Not a Tax.

Assessment of benefits provided for in this section is not a tax within the purview and meaning of Idaho Const., Art. VII, § 5. Elliott v. McCrea, 23 Idaho 524, 130 P. 785 (1913).

Assessment Rolls.

If assessments made by drainage district commissioners are confirmed by the court, and the commissioners are authorized to proceed with the work, then an assessment roll is made up and filed, as provided in§ 42-2935 and in this section. Straus v. Ketchen, 54 Idaho 56, 28 P.2d 824 (1933).

Collection of Assessment.

Tax officer had no right to refuse to accept payment of general taxes as penalty to enforce payment of drainage assessment. Booth v. Clark, 42 Idaho 284, 244 P. 1099 (1926).

Cited

Drainage Dist. No. 2 v. Ada County, 38 Idaho 778, 226 P. 290 (1924); Field v. Drainage Dist. No. 1, 46 Idaho 248, 267 P. 443 (1928).

§ 42-2937. Assessment to pay judgment of dismissal.

In event of the dismissal of said proceedings, as hereinbefore provided, said drainage commissioners shall levy a tax upon all the real estate within said district, taking as a basis the last equalized assessment of said real estate for state and county purposes sufficient to pay said judgment and the cost of levying said tax, and shall cause said tax roll to be filed in the office of the clerk of the district court in which such judgment was rendered. If said tax is not paid within one year after the filing of said tax roll, the court shall, upon the application of any party interested, direct said real estate to be sold in payment of said tax, said sale to be made in the same manner and by the same officer as is or may be provided by law for the sale of real estate for taxes for general purposes; and the same right of redemption shall exist as in the sale of real estate for the payment of taxes for general purposes.

History.

1913, ch. 16, § 17, p. 58; reen. C.L. 168:34; C.S., § 4528; I.C.A.,§ 41-2537.

CASE NOTES

Levy Without Judgment.

Attempted levy under this section was without authority when no valid judgment for costs and expenses had been rendered against district. In re Drainage Dist. No. 5, 39 Idaho 477, 228 P. 881 (1924).

§ 42-2938. Construction and maintenance of drainage works — Executive powers of commissioners.

Said board of drainage commissioners hereinbefore provided for shall have the exclusive charge of the construction and maintenance of all drainage systems which heretofore have been or may be hereafter organized under the provisions of this chapter, and shall be the executive officers thereof, with full power to bind such district by their acts in the performance of their duties as provided by law.

History.

1913, ch. 16, part of § 8, p. 58; reen. C.L. 168:35; C.S., § 4529; I.C.A.,§ 41-2538.

CASE NOTES

Appropriator’s Right to Seepage.

Drainage district destroying ditch of prior appropriator of waste and seepage water by construction of its drains did not destroy appropriator’s rights to such waters. Sebern v. Moore, 44 Idaho 410, 258 P. 176 (1927).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-2939. General powers of district.

All drainage districts organized under the provisions of this chapter shall have the right of eminent domain, with power by and through their boards of commissioners to cause to be condemned and appropriated private property for the use of said corporation in the construction and maintenance of a system of drainage, and to make just compensations therefor, to employ engineers, and such other assistants as may be necessary; to survey, plan, locate and estimate the cost of the works necessary for the reclamation of the lands of the district; to acquire and to hold by purchase, condemnation or other legal means, the right of way and the right to take material for the construction of all works necessary for the accomplishment of that object; to build and maintain drains, canals, sluices, bulkheads, water gates, levees and embankments; to establish and maintain pumping plants and to construct and maintain and keep in repair all works requisite and necessary to the end that the lands in the district may be reclaimed.

For the purpose of the drainage of any such district, the whole or any portion of any natural water course, or river, which drains such district, may be diked, improved, enlarged, widened, deepened or straightened, or any natural obstruction may be removed therefrom.

Said board of drainage commissioners shall have power to provide by contract for the performance and payment of all or any portion of the work requisite or necessary for the drainage of the lands included within the limits of such district, or to enter into any contract whereby all or any portion of the cost of such work shall be paid, assumed or undertaken by such district, and to do all things requisite or necessary for the drainage of said lands.

Work for the drainage of said lands may be performed either entirely or partly within the limits of such district, or of the county in which such district is located, or entirely or partly within or without the boundaries of any other county, state, territory or foreign country: provided, that the property of private corporations may be subjected to the same rights of eminent domain as that of private individuals: provided further, that the said board of commissioners shall have power to acquire by purchase all the real property necessary to make the improvements herein provided for.

History.

1913, ch. 16, § 33, p. 58; reen. C.L. 168:36; C.S., § 4530; I.C.A.,§ 41-2539.

RESEARCH REFERENCES

Upon the filing of said petition the court shall cause a summons to be served, setting forth the prayer of said petition under the seal of the said court, which summons shall be served in the same manner as the service of summons in the case of the original petition, upon all the landowners or other persons having any lien or interest therein appearing of record in said district.

Any or all of said parties so served may appear in said cause and submit their objections thereto and after the time for the appearance of all said parties has expired, the court shall proceed to hear said petition at once, and if it appears during the course of said proceedings that the property rights of any of said landowners will be affected by such proposed change in said improvements, then the court, after having passed upon all preliminary questions as in the original proceedings, may call a jury to be impaneled in the manner provided by the Code of Civil Procedure, and upon the final hearing of said case the jury shall return a verdict finding the amount of damages, if any, sustained by all persons and corporations, the same as upon the original petition by reason of such proposed change, and the amount of compensation to be paid to any persons or corporation therefor, and for any additional right of way that may be necessary to be appropriated.

History.

1913, ch. 16, part of § 19, p. 58; compiled and reen. C.L. 168:40; C.S., § 4534; I.C.A.,§ 41-2543.

STATUTORY NOTES

Compiler’s Notes.

The Code of Civil Procedure, referred to in the last paragraph, is a division of the Idaho Code, consisting of Titles 1 through 13.

CASE NOTES

Service of Summons.

This section does not require service of summons as in civil actions, but it is sufficient if it be “served in the same manner as the service” in case of original petition. Field v. Drainage Dist. No. 1, 46 Idaho 248, 267 P. 443 (1928).

§ 42-2944. Payments to contractors.

During the construction of said improvement, said commissioners shall have the right to allow payment thereof, in installments as the work progresses, in proportion to the amount of work completed: provided, that no allowance or payment shall be made for said work to any contractor or subcontractor to exceed ninety per cent (90%) of the proportionate amount of the work completed by such contractor or subcontractor, and ten per cent (10%) of the contract price shall be reserved at all times by said board of commissioners until said work is wholly completed, and shall not be paid upon the completion of said work until ninety (90) days have expired for the presentation of all claims for labor performed and materials, goods, wares, merchandise and provisions furnished or used in the construction of said improvements. Upon the completion of said work and the payment of all claims hereinbefore provided for according to the terms and conditions of said contract, said commissioners shall accept said improvement and pay the contract price therefor.

History.

1913, ch. 16, § 20, p. 58; reen. C.L. 168:41; am. 1919, ch. 183, § 10, p. 558; C.S., § 4535; I.C.A.,§ 41-2544.

CASE NOTES

Confirmation of Assessment Roll.

After confirmation of a drainage district assessment roll by the court, the commissioners had the power to proceed with construction of the works and to pay therefor. Straus v. Ketchen, 54 Idaho 56, 28 P.2d 824 (1933).

§ 42-2945. Connections by private drains — Costs.

Any person or corporation owning land within said district shall have a right to connect any private drains or ditches for the proper drainage of such land with said system, and in case any person or corporation shall desire to drain such lands into said system, and shall find it necessary, in order to do so, to procure the right of way over the land of another, or others, and if consent thereto cannot be procured from such person or persons, then such landowner may present in writing a request to the board of commissioners of said district, setting forth therein the necessity of being able to connect his private drainage with said system, and pray therein that said system be extended to such point as he may designate in said writing, and immediately thereon said board of commissioners shall cause a petition to be filed in the district court for and in the name of said drainage district, requesting, in said petition, that said system be extended as requested, setting forth therein the necessity thereof and praying that leave be granted by the board to extend the system in accordance with the prayer of said petition, and the proceedings in such case, upon the presentation of such petition and the hearing thereof shall be, in all matters, the same as in the hearing and presentation of the original petition, for the establishment of the original system of drainage in said district, as far as applicable.

1913, ch. 16, § 24, p. 58; am. 1915, ch. 42, § 3, p. 123; reen. C.L. 168:44; C.S., § 4538; I.C.A.,§ 41-2547.

CASE NOTES

Cited

In re Drainage Dist. No. 1, 29 Idaho 377, 161 P. 315 (1916); Burt v. Farmers Coop. Irrigation Co., 30 Idaho 752, 168 P. 1078 (1917); Nampa & Meridian Irrigation Dist. v. Petrie, 37 Idaho 45, 223 P. 531 (1923).

§ 42-2948. Construction of dikes along public roads.

In the construction of any diking system under the provisions of this chapter, where it is desired to construct the same along the right of way of any public road which has theretofore been legally established, said district shall have a right to construct its dikes along such road: provided, that the dikes so constructed along such road shall not destroy or impair the same for use as a public highway; and in case of the construction or improvement of any dike along any public highway, such dike shall be constructed of sufficient width and in such manner as will be of use as a public highway.

History.

1913, ch. 16, § 39, p. 58; reen. C.L. 168:45; C.S., § 4539; I.C.A.,§ 41-2548.

§ 42-2949. Payments of claims — Option for deposit and disbursement of funds — Issuance of checks or warrants — Investment of funds.

The board of commissioners may issue warrants of such district, in payment of claims of indebtedness against such district; such warrants shall be in form and substance the same as county warrants, or as near the same as may be practicable and shall draw the legal rate of interest from the date of their presentation to the treasurer for payment, as hereinafter provided, and shall be signed by the chairman and attested by the secretary of said board: provided, that no warrants shall be issued by said board of commissioners in payment of any indebtedness of such district for less than face or par value.
The board of commissioners may, in the alternative and as an option to subsection (1) of this section, elect by resolution to receive moneys due the district from the levy of taxes, assessments and other sources, to provide for the safekeeping and deposit of such moneys in accordance with the provisions of chapter 1, title 57, Idaho Code, and to pay all claims of indebtedness of the district allowed and approved by either warrant or check. If a drainage district elects this option, a certified copy of said resolution shall be served upon the board of county commissioners, the county auditor and the county treasurer. Upon allowance of claims by the board of commissioners, payment may be ordered by warrant or check signed by the chairman and the secretary. The secretary may be directed by resolution or order of the board to invest surplus funds in accordance with and subject to the provisions of chapter 1, title 57, Idaho Code, and section 50-1013, Idaho Code. The board of commissioners shall cause to be kept an accurate account of all moneys received, the sources from whence received, all moneys expended and the purposes to which applied.

History.

1913, ch. 16, part of § 6, p. 58; reen. C.L. 168:46; C.S., § 4540; I.C.A.,§ 41-2549; am. 1983, ch. 60, § 1, p. 139.

§ 42-2950. Warrants — Payment — Interest.

All warrants issued under the provisions of this chapter shall be presented by the holder thereof to the county treasurer, who shall indorse thereon the day of presentation for payment, with the additional indorsement thereof in case of nonpayment that they are not paid for want of funds; and no warrant shall draw interest under the provisions of this chapter until it is so presented and indorsed by the county treasurer. And it shall be the duty of such treasurer, from time to time, when he has sufficient funds in his hands for that purpose, to advertise in the newspaper doing the county printing for the presentation to him for payment of as many of the outstanding warrants as he may be able to pay: provided, that thirty (30) days after the first publication of said notice of the treasurer calling in any of said outstanding warrants, said warrants shall cease to bear interest, which shall be stated in the notice. Said notice shall be published two (2) weeks consecutively, and said warrants shall be called in and paid in the order of their indorsement.
If a board of commissioners has elected and complied with the provisions of section 42-2949(1), Idaho Code, and in the absence of funds to pay warrants issued, the board may by resolution order payment of warrants presented by registering such warrants as hereinafter provided, and at the same time shall prescribe the interest rate said warrants shall draw. All warrants issued shall be presented to the secretary of a drainage district by the persons holding the same. If there are insufficient funds to pay the warrants presented, the secretary must indorse thereon “not paid for want of funds,” the date of indorsement, the rate of interest such warrant shall draw as fixed by resolution of the board of commissioners, and sign his name thereto; and thereafter the said warrant shall draw interest at the rate specified in such indorsement until called for payment. Warrants issued by a drainage district shall be paid in the order of their issuance from funds accruing for the year in which they are issued. After all outstanding indebtedness for any one (1) year has been paid, any balance for that year shall be transferred to a warrant redemption fund for payment of uncalled registered warrants. Where there is no outstanding indebtedness nor any uncalled registered warrants, any balance may be used for the payment of current expenses for the next fiscal year.

History.

1913, ch. 16, § 32, p. 58; reen. C.L. 168:47; C.S., § 4541; I.C.A.,§ 41-2550; am. 1983, ch. 60, § 2, p. 139.

STATUTORY NOTES

Cross References.

Nonpayment of warrants for want of funds, indorsement, interest rate, §§ 31-2124, 31-2125. CASE NOTES

Issuance and Payment of Warrants.

Under this section, the commissioners have the power to issue and pay warrants. Straus v. Ketchen, 54 Idaho 56, 28 P.2d 824 (1933).

§ 42-2951. Legalization of warrants issued under former act.

Whenever any territory of the state of Idaho heretofore organized as a drainage district under the provisions of sections 2444 to 2483 inclusive, of the Revised Codes, shall be hereafter organized as a drainage district under the provisions of a subsequent drainage law, all debts incurred and warrants issued by the commissioners of said drainage district as heretofore organized, shall be and hereby are made legal and valid obligations against the district as organized under such subsequent drainage law: provided, however, that all debts incurred and warrants issued shall be reported to the district court by the commissioners who incurred said indebtedness or issued said warrants, or by any one of said commissioners, under oath, and be certified to as correct by the district judge of the county in which said district was located; and after such certification said district judge shall order a levy made for the payment of said obligations, and the taxes shall be collected the same as general taxes are collected: provided, however, that any creditor of any drainage district organized under sections 2444 to 2483 inclusive, of the Revised Codes, shall have the right of suit against said district, after reasonable notice of his claim to the commissioners therein, and their neglect or refusal to report said claim to the district court for certification as to its correctness: provided further, that in cases where the district as organized under a subsequent drainage law shall include other lands than were included in the district originally organized under sections 2444 to 2483 inclusive, of the Revised Codes, upon the certification of the correctness of the debts incurred and warrants issued by the commissioners of said district, by the district judge as herein provided, such debts incurred and warrants issued shall be deemed to be obligations upon the lands embraced within the limits of the district as originally organized under said sections 2444 to 2483 inclusive, of the Revised Codes, and be collected as herein provided.

History.

1913, ch. 17, § 1, p. 58; reen. C.L. 168:48; C.S., § 4542; I.C.A.,§ 41-2551.

§ 42-2952. Bonds authorized.

Upon the establishment of any drainage district under the provisions of this chapter, and the establishment of a system of drainage therein as provided for in this chapter, the board of commissioners of such drainage district are hereby authorized to issue bonds to pay for the total cost of the work and improvements incurred or to be incurred, or of the part of the work and improvements assumed or contracted for, or to be assumed or contracted for, together with the cost of the organization of said district, and the establishment thereof, including damages assessed and compensation made or to be made to landowners for right of way, and the expense and cost of the entire proceedings, payable as provided by section 42-2954[, Idaho Code]: provided, that no bonds shall, under the provisions hereof, be sold for less than their par value; and, provided further, that the total amount of the foregoing bonds shall not exceed ninety per cent (90%) of the assessments levied against the lands of the district for the payment of the cost and expense of the foregoing items.

The board of commissioners of any such drainage district is also hereby authorized to issue additional bonds, in an amount equal to, and payable from, the additional assessments which may be levied pursuant to and under the authorization expressed in section 42-2930[, Idaho Code].

The board of commissioners of any such drainage district is also authorized to issue additional bonds sufficient in amount to pay the total cost of the additional work and improvements and of the separate and additional works and improvements authorized by the foregoing section 42-2931[, Idaho Code,] including the cost and expense of the costs of collection of the assessments therein authorized and of all legal and other proceedings incident to or had in connection with the ordering, authorization and doing of all such works and improvements by said board of commissioners or in connection with the court proceedings which shall be had under the provisions of this chapter.

The board of commissioners of any such drainage district is also authorized to issue additional bonds sufficient in amount to pay and redeem all or any part of the outstanding warrant or other indebtedness of said district, together with interest accrued thereon. The funding hereby authorized may be accomplished by the exchange of such funding bonds for the warrant indebtedness or other indebtedness thus to be funded, if consented to by the board of commissioners and by the owners of such outstanding warrants and other indebtedness; provided that such funding bonds shall not bear a higher rate of interest than the warrants and other indebtedness thereby funded and that such funding bonds shall be exchanged at not less than their par value and accrued interest; provided, however, that no warrant or other indebtedness shall be funded under the provisions of this paragraph, except such warrants and other indebtedness which have been issued and incurred prior to July 1, 1935.

In the event that the owners of such outstanding warrants and other indebtedness shall not consent to such exchange, such funding bonds shall be sold as required by section 42-2953[, Idaho Code], and such warrants and other outstanding indebtedness and obligations shall be called and retired as provided in said section 42-2953[, Idaho Code]; provided, that all funds in the treasury of such district available for the payment or redemption of such warrants and other indebtedness shall be first applied to the payment and redemption of such warrants and other indebtedness together with the interest accrued thereon, and such funding bonds shall be issued for the retirement of the indebtedness remaining unpaid. The foregoing bonds may be issued jointly or separately, as a unit bond issue or as separate bond issues as determined by the board of commissioners. Any or all of the bond issues authorized by this section may also be issued, if deemed advisable by the board of commissioners, as a part of a joint bond issue with drainage district refunding bonds authorized by and issued under the provisions of chapter 30 or under any other enabling acts of this state. The foregoing bonds shall be payable solely out of and from the assessments for benefits levied upon and a lien upon the lands within such drainage district, as provided elsewhere in this chapter; and all said assessments (as to the determination, apportionment and assessment thereof, objections thereto and hearing thereon and confirmation thereof, as to their nature and existence as a lien upon the lands thus assessed, as to appeals therefrom and their incontestability, as to the certification and entry thereof of record and upon the tax rolls of the county, as to collection thereof and as to tax sale of delinquent lands and redemption thereof, as to the times when such assessments shall become due and payable and be called and in what amounts, as to annual levies thereof for the liquidation of bonds at maturity and for the payment of interest thereon; and as to the mode, manner and time of doing all the foregoing, and in all other respects), shall be governed by, and shall be provided in, sections 42-2914, 42-2915, 42-2919 to 42-2929[, Idaho Code], inclusive and section 42-2934[, Idaho Code,] to section 42-2936[, Idaho Code], both inclusive, and sections 42-2956 and 42-2958[, Idaho Code], and the other related provisions, of chapter 29[, title 42, Idaho Code,] and as provided in this act. Provided that the foregoing funding bonds shall be paid by assessments levied upon and apportioned over the lands within the drainage district as provided by sections 42-2951 and 42-2962[, Idaho Code].

History.

1913, ch. 16, parts of § 25, p. 58; reen. C.L. 168:49; am. 1919, ch. 183, § 11, p. 558; C.S., § 4543; I.C.A.,§ 41-2552; am. 1935, ch. 49, § 2, p. 89.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” in the next-to-last sentence in the last paragraph refers to S.L. 1935, chapter 49, which is codified as§§ 42-2931, 42-2952, 42-2954, and 42-2956.

The bracketed insertions throughout this section were added by the compiler to conform to the statutory citation style.

The words enclosed in parentheses so appeared in the law as enacted.

CASE NOTES

Effect of statutes and decisions. Payment for bonds.

Changes After Issue.

The obligation under bonds issued in a drainage district cannot thereafter, by legislation, be changed, since to do so would impair the obligation of contract as to any bonds issued prior to the passage of such legislation. Straus v. Ketchen, 54 Idaho 56, 28 P.2d 824 (1933).

Constitutionality.

Provisions for bonding of drainage district without vote of the people within district is not in violation of Idaho Const., Art. VIII, § 3, indebtedness here provided for not being a municipal indebtedness contemplated by the constitution. Elliott v. McCrea, 23 Idaho 524, 130 P. 785 (1913).

Effect of Statutes and Decisions.

Drainage district bonds are governed by the statutes and decisions in force at the time of their issuance in as full and ample a manner as if the same had been written into the bonds themselves. Straus v. Ketchen, 54 Idaho 56, 28 P.2d 824 (1933).

Payment for Bonds.

Where a drainage district receives par value for bonds issued, but such par value consists in exchange for its bonds and warrants, no violation of this section takes place. McDonald v. Pritzl, 60 Idaho 354, 93 P.2d 11 (1939).

Power to Levy Assessments.

The power to levy assessments for the payment of drainage district bonds is limited as to interest as well as principal, except as provided by§§ 42-2930 and 42-2931, to the original assessment of benefits. Breckenridge v. Johnston, 62 Idaho 121, 108 P.2d 833 (1940).

Where the drainage district statute confers no power upon drainage districts to pay or levy assessments for the payment of after-maturity interest, administrative construction must and will be disregarded. Breckenridge v. Johnston, 62 Idaho 121, 108 P.2d 833 (1940).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-2953. Funding bonds.

Such commissioners may, at any time thereafter, issue such bonds in the manner and form herein prescribed for the purpose of funding any outstanding warrants or obligations of such district. In case of such last-named issue all the outstanding warrants shall immediately become due and payable upon receipt of the money by the county treasurer from the sale of said bonds, and upon a call of such outstanding obligations to be issued by him. Such call shall be made by said treasurer immediately upon the receipt of the proceeds from the sale of said bonds, by publication for two (2) consecutive weeks in the county paper authorized to do the county printing, and such warrants and outstanding obligations shall cease to draw interest at the end of thirty days after the date of the first publication.

History.

1913, ch. 16, part of § 25, p. 58; reen. C.L. 168:50; C.S., § 4544; I.C.A.,§ 41-2553.

STATUTORY NOTES

Cross References.

Refunding bonds,§ 42-3001 et seq.

§ 42-2954. Form of bonds — Interest — Maturities.

Said bonds shall be numbered from one (1) upward, consecutively, and be in denominations of not less than $100 nor more than $1000. They shall bear the date of issue, shall be made payable to the bearer and bear interest, payable semi-annually, with coupons attached for each interest payment. The bonds shall be signed by the chairman of the board of drainage commissioners, and shall be attested by the secretary of said board, and the seal of such district shall be affixed to each bond, but not to the coupons. The coupons may be signed by the facsimile lithographed or engraved signatures of the said officers.

The board of commissioners shall fix the maturities of said bonds not exceeding forty (40) years from the date of their issuance and an amortization period which shall be not less than three-fourths (¾) of the maximum maturity. During the first fourth of the period covered by the last maturity provision may be made, in the discretion of the board, for the payment of interest only. Maturities shall be so arranged that during at least the latter three-fourths (¾) of the period covered by the last maturity the principal shall be amortized by payments thereof in annual or semi-annual instalments so arranged as to maturities that the combined principal and interest payments during the amortization period shall be approximately the same each year. Said bonds shall be payable at such place within or without the state of Idaho as may be designated by the board of commissioners. The issuing drainage district may reserve the right to redeem said bonds or any of them at any time after ten (10) years from date thereof.

History.

1913, ch. 16, § 26, p. 58; reen. C.L., 168:51; C.S., § 4545; am. 1927, ch. 179, § 1, p. 242; am. 1927, ch. 254, § 1, p. 429; am. 1929, ch. 78, § 1, p. 116; I.C.A.,§ 41-2554; am. 1935, ch. 49, § 3, p. 89; am. 1970, ch. 133, § 6, p. 309.

CASE NOTES

Bonds Payable in Numerical Order.

A statutory requirement that drainage district bonds be paid in their numerical order must be complied with, and it is a right upon which bondholders may insist. Straus v. Ketchen, 54 Idaho 56, 28 P.2d 824 (1933).

Power to Levy Assessments.

Where the drainage district statute confers no power upon drainage districts to pay or levy assessments for the payment of after-maturity interest, administrative construction must and will be disregarded. Breckenridge v. Johnston, 62 Idaho 121, 108 P.2d 833 (1940). RESEARCH REFERENCES

C.J.S.

§ 42-2955. Exchange of bonds for warrants.

Said bonds may be exchanged at not less than their par value for an equal amount of the warrants of the district issuing such bonds.

Cross References.

Pro rata payment,§ 42-2977.

CASE NOTES

Application of Delinquent Payments.

If delinquencies as to assessments of costs are paid late, such funds should be paid by the drainage district on outstanding bonds in their numerical order. McDonald v. Pritzl, 60 Idaho 354, 93 P.2d 11 (1939).

Bonds Payable in Numerical Order.

Contract Obligation of Bonds.

Where bonds have been outstanding for five years, contract obligation thereof was not impaired by issuance of refunding bonds under chapter 30 of this title. Sebern v. Cobb, 41 Idaho 386, 238 P. 1023 (1925). Contract obligation of bonds which could not have been paid by proceeds of assessments under this chapter was impaired by calling such bonds for refunding, although they had been outstanding for three years. Sebern v. Cobb, 41 Idaho 386, 238 P. 1023 (1925).

Effect of Chapter 30.

Session Laws 1925, ch. 21 (ch. 30 of this title) does not alter method of calling outstanding bonds which have run for period of three years. Sebern v. Cobb, 41 Idaho 386, 238 P. 1023 (1925).

Limitation on Power to Levy Assessments.

Cited

Drainage Dist. No. 2 v. Ada County, 38 Idaho 778, 226 P. 290 (1924).

§ 42-2958. Levy for interest.

It shall be the duty of such drainage commissioners annually to levy an assessment sufficient for the payment of the coupons hereinbefore mentioned as they fall due.

History.

1913, ch. 16, § 30, p. 58; reen. C.L. 168:55; C.S., § 4549; I.C.A.,§ 41-2558; am. 1935, ch. 55, § 2, p. 103.

STATUTORY NOTES

Effective Dates.

Section 3 of S. L. 1935, ch. 55 declared an emergency. Approved Feb. 25, 1935.

Functions of Drainage Districts.

A drainage district is conducted and operated for the benefit and welfare of the residents and property owners of the district and its functions are business and economic, rather than political or governmental. Chandler v. Drainage Dist. No. 2, 68 Idaho 42, 187 P.2d 971 (1947).

§ 42-2961. Apportionment of cost of maintenance.

The board of commissioners of any drainage district organized under the provisions of this chapter shall, on or before the third Monday of September of each year, make an estimate of the cost of maintenance of the drainage system constructed in such district, which estimate shall include the cost of making any necessary repairs that it might become necessary to make in the maintenance of such system. Such estimate shall be made for the succeeding year, and the amount so estimated shall be certified by the board of commissioners to the auditor of the county in which such district is located, on or before said date, and the amount thereof shall be apportioned to the landowners in such district benefited by said improvement in proportion to the benefit apportioned or reapportioned, and such amount shall be added to the general taxes of such landowners and collected therewith; provided however, that at the option of the commissioners the amount apportioned to every landowner on any parcel or piece of land shall be not less than one dollar ($1.00), which amount shall be a minimum assessment to be collected as a tax for the year on every such parcel or piece of land.

History.

1913, ch. 16, § 23, p. 58; reen. C.L. 168:58; am. 1919, ch. 20, § 1, p. 82; C.S., § 4552; am. 1927, ch. 53, § 1, p. 68; I.C.A.,§ 41-2561; am. 1953, ch. 257, § 1, p. 411; am. 1974, ch. 118, § 1, p. 1289; am. 2012, ch. 106, § 2, p. 282.

STATUTORY NOTES

Amendments.

The 2012 amendment, by ch. 106, substituted “to the benefit apportioned or reapportioned” for “to the maximum benefit originally assessed” near the middle of the second sentence.

Effective Dates.

Section 2 of S.L. 1974, ch. 118 declared an emergency and provided that this act take effect on and after its passage and approval and retroactively to January 1, 1974. Approved March 27, 1974.

CASE NOTES

Liability of landowner. Limit of liability.

Collection of Assessments.

Tax officer had no right to refuse to accept payment of general taxes as penalty to enforce payment of drainage assessment. Booth v. Clark, 42 Idaho 284, 244 P. 1099 (1926).

Liability of Landowner.

The liability of each particular landowner became fixed and determined at the time of the confirmation of the assessment for costs, and assessment thus imposed became the limit of his liability for construction costs. McDonald v. Pritzl, 60 Idaho 354, 93 P.2d 11 (1939).

Limit of Liability.

§ 42-2962. Levy of and limitation on assessments.

The commissioners may also levy assessments for any expense necessarily incurred by them for construction, maintenance, repair, or any extraordinary reasons, and also may add to said assessment sufficient to pay any deficiency occurring the preceding year or any other unpaid warrant indebtedness, if any, or to pay any outstanding warrants: provided, that any assessments to be hereafter made by any drainage commissioners to pay for the payment or retirement of any bonds or warrants shall not exceed twenty percent (20%) of the original cost of organization and construction, and said assessment for the payment or retirement of any bonds or warrants shall be in addition to the assessments which may be levied under this section or section 42-2936, Idaho Code, and such assessments, when made, shall be apportioned under section 42-2961, Idaho Code, and collected as hereinbefore provided for.

History.

1913, ch. 16, § 23, p. 58; reen. C.L. 168:58; am. 1919, ch. 20, part of § 1, p. 82; C.S., § 4553; I.C.A.,§ 41-2562; am. 2012, ch. 106, § 3, p. 282; am. 2018, ch. 92, § 3, p. 197.

STATUTORY NOTES

Amendments.

The 2012 amendment, by ch. 106, inserted “under section 42-2961, Idaho Code” near the end of the section.

The 2018 amendment, by ch. 92, in the proviso, inserted “for the payment or retirement of any bonds or” near the beginning, “and said assessment for the payment or retirement of any bonds or warrants shall be” near the middle, and “this section or” near the end.

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

CASE NOTES

Liability of Drainage Commissioners.

Liability of Landowner.

Drainage commissioners are held to be liable in damages for injuries to land resulting from negligent construction of dam causing water to overflow onto land. Chandler v. Drainage Dist. No. 2, 68 Idaho 42, 187 P.2d 971 (1947). Liability of Landowner.

The liability of each particular landowner was fixed and determined at the time of the confirmation of the assessment for costs, and assessment thus imposed was the limit of his liability for construction costs. McDonald v. Pritzl, 60 Idaho 354, 93 P.2d 11 (1939).

Limit of Liability.

Nature of Assessments.

Assessments levied and collected under drainage district law are exercise of power of state for general welfare. Elliott v. McCrea, 23 Idaho 524, 130 P. 785 (1913); Booth v. Clark, 42 Idaho 284, 244 P. 1099 (1926).

1937, ch. 86, § 1, p. 115.

STATUTORY NOTES

Cross References.

Assessment roll,§ 42-2935.

§ 42-2967. Interested persons — Right to demand statement showing amount of lien and total payments — Form.

Any person or corporation having an interest in, or lien upon, any land situate within the boundaries of a drainage district now organized and existing or hereafter organized under the laws of the state of Idaho, and which land has been, or hereafter may be, assessed for benefits for the construction of drainage works in said district, as provided in this chapter, as shown by the assessment roll of said district, confirmed by the court, and upon which any calls for assessments have been made against said assessment roll by the drainage commissioners of said district, and any or all of which calls shall have been paid upon said land, shall have the right to demand in writing from the commissioners of said drainage district and from the county treasurer of the county in which such land is situate, a statement giving the following information:

Amount of original lien against said land as shown by the assessment roll of said district and confirmed by the court;
Total payments made upon said land by reason of calls against said assessment roll;
Total credit given on the original lien against said land created by the assessment, by reason of the payment made on calls by the drainage commissioners.

Said demand shall be personally served upon the secretary of the board of drainage commissioners of said district, and upon the county treasurer of said county.

Within ten days after the service of said notice, the commissioners of said drainage district and said county treasurer shall furnish to the person making said demand a statement in writing giving the information required by said demand. Said statement so furnished by the drainage commissioners and the county treasurer may be in one instrument or in separate instruments. The same shall be signed by the chairman of the board of drainage commissioners of said district and attested by the secretary thereof, and shall also be signed by the county treasurer.

History.

1935, ch. 57, § 1, p. 109.

STATUTORY NOTES

Cross References.

Assessment roll,§ 42-2935.

§ 42-2968. Right of action by interested persons for accounting.

If such person or corporation making said demand shall be dissatisfied as to the total amount paid or the credit given on the original lien as shown by said statements furnished under the provisions of section 42-2967[, Idaho Code], he or it shall have the right to bring an action in the district court of the county in which such land is situate, against said district and the county treasurer of the county, for the purpose of securing a determination by the court as to the total amount of payments made and the amount which should have been credited upon the lien against said lands created by the assessment roll of said district as confirmed by the court.

History.

1935, ch. 57, § 2, p. 109.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

§ 42-2969. Access to records by interested persons for preparation of action for trial.

Upon the filing of said complaint said plaintiff, his agents, attorneys and auditors, shall have free access to the books, records and accounts of the drainage commissioners and shall have the right to examine the same and make copies thereof, and the secretary of said drainage district shall furnish such certified copies of said records as the plaintiff may designate, said plaintiff furnishing the copies ready for certification at his own expense. He shall also have access to the records of the county treasurer insofar as they pertain to his property, including the assessment roll of the drainage district, the distribution of moneys paid by him, and such other matters as may pertain to the preparation of his case for trial.

History.

1935, ch. 57, § 3, p. 109.

§ 42-2970. Method of procedure in actions by interested persons.

The procedure provided by law for the trial and determination of other civil actions, and appeal to the Supreme Court of the state of Idaho, shall govern the procedure in any action brought under the provisions of this act; provided, however, that no costs shall be awarded to either party, either in the district court or upon appeal to the Supreme Court.

History.

1935, ch. 57, § 4, p. 109.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” near the middle of the section refer to S.L. 1935, chapter 57, which is compiled as§§ 42-2967 to 42-2970.

Effective Dates.

Section 5 of S.L. 1935, ch. 57 declared an emergency. Approved Feb. 25, 1935.

§ 42-2971. Payment of annual or delinquent assessments or unpaid liens with bonds, matured interest coupons, warrants or cash.

Any person or corporation having an interest in or title to, or recorded mortgage or other lien upon any tract, lot or parcel of land, or any part thereof, situate within the boundaries of any drainage district now organized and existing, or that may hereafter be organized, under the laws of the state of Idaho, may at any time pay all or any part of the annual or delinquent drainage assessments due at the time of such payment, except as hereinafter otherwise provided, or may pay the whole or any part of the unpaid portion of the lien against said property as shown by the assessment roll of said district as confirmed by the court and filed with the county auditor, whether due or to become due, together with the accrued interest, if any, on any such annual or delinquent assessments, either in lawful money of the United States or with the bonds of the district at the face or par value thereof, of any date, number, series or denomination, whether original issue, funding or refunding and whether such bonds are due at the time of payment or will become due at a future date, and/or with warrants or matured interest coupons of said district at the face or par value of the same; and it shall be the duty of the county treasurer of the county in which said land is situate to accept said bonds, matured interest coupons and warrants in payment, or part payment, of any such annual or delinquent drainage assessments, or in payment of the unpaid portion of the lien against said real property created by the assessment roll of such drainage district; provided, however, that such bonds, interest coupons, and warrants hereinabove referred to shall have been issued by said drainage district subsequent to the date this act becomes effective.

History.

1935, ch. 56, § 1, p. 105.

STATUTORY NOTES

Compiler’s Notes.

The phrase “the date this act becomes effective” at the end of the section refers to the effective date of S.L. 1935, chapter 56, which was effective February 25, 1935.

§ 42-2972. Release of lands from further liability upon full payment.

Upon payment in full being made to the county treasurer of the lien against any such tract, lot or parcel of land, either in lawful money of the United States and/or drainage district bonds, matured interest coupons or warrants, as provided in section 42-2971[, Idaho Code], the county treasurer shall issue and deliver to such person or corporation making said payment a receipt for the amount of such payment, stating therein the total amount paid, the amount paid in cash, in bonds, in warrants and matured interest coupons of said district; and shall thereupon issue and deliver to such person or corporation a release and discharge releasing such tract, lot or parcel of land from all other or further liability for the payment of any of the then existing bonded indebtedness of the district, or any bonds thereafter issued to refund the same, or of any warrants theretofore, or that may thereafter be, issued for the payment of interest on any such bonds or refunding bonds, and releasing and discharging such tract, lot or parcel of land from the payment of any other or further liens created by reason of the assessment for benefits against said tract, lot or parcel of land as shown in the assessment roll of said district confirmed by the court; and such tract, lot or parcel of land shall not thereafter be assessed by such drainage district by reason of benefits theretofore assessed and confirmed by the court, except for the purpose of operation and maintenance thereof; provided, that all assessments for operation and maintenance theretofore levied or thereafter to be levied shall be payable only in lawful money of the United States or in warrants of the district issued against the operation and maintenance fund within the calendar year in which such warrants are tendered in payment, in which event such warrants shall be accepted by the county treasurer at par or face value thereof in payment of operation and maintenance charges.

History.

1935, ch. 56, § 2, p. 105.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion near the beginning of the section was added by the compiler to conform to the statutory citation style.

§ 42-2973. Form of release and discharge.

The release and discharge provided for in section 42-2972, Idaho Code, shall be in substantially the following form:

Release and discharge from liability from payment of the bonded and warrant indebtedness of drainage district number ...... in .............. County, Idaho, from the lien of the assessment roll of said district as confirmed by the court.

WHEREAS, on the .... day of ............, ....,

.......... (The owner, part owner, mortgagee or other lienholder, as the case may be) paid to the County Treasurer of .............. County, Idaho, .... (in cash, bonds, warrants or matured interest coupons of said district, as the case may be) the sum of $ ...., being the total unpaid amount of the lien against the real property hereinafter described, created by the assessment roll of said district; said property being situate within Drainage District Number ...., in .... County, Idaho, and particularly described as follows, to wit:

(Insert description of property.)

and being shown on the assessment roll of said district as assessment number .....

NOW THEREFORE, in consideration of such payment, and pursuant to law, the undersigned does by those presents release and discharge the above described tract, lot or parcel of land from the lien against said land created by the assessment roll of Drainage District Number .... in ...... County, Idaho, and from the payment of all of the bonded indebtedness now existing against the same, and from the payment of any bonds now issued or that may hereafter be issued to refund the same, or any part thereof, and from the payment of any warrants of the district heretofore issued or that may hereafter be issued in payment of interest on such indebtedness or refunded indebtedness, and releases and discharges said tract, lot or parcel of land from further payment of benefits assessed against said land as shown by the assessment roll of said district and from all liens created thereby, save and except assessments made or to be made by said district for the operation and maintenance thereof.

IN WITNESS WHEREOF, I, the County Treasurer of the county of ......, state of Idaho, and duly authorized by law to collect all sums of money assessed by the drainage commissioners of Drainage District Number .... in said county, have hereunto set my hand as such county treasurer this .... day of ...., .....

...............................

(Treasurer)

............................... County, Idaho.

Said release and discharge shall be acknowledged before an officer authorized to take acknowledgments to conveyances. The acknowledgment shall be substantially in the following form:

STATE OF IDAHO

ss.

COUNTY OF ......

On this .... day of ...., ...., before me, ...., (Official Character), in and for said state, personally appeared ..........., known to me to be the person whose name is subscribed to the within instrument as the County Treasurer of the county of ..........., state of Idaho, and acknowledged to me that ......... he executed the same, as such treasurer. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

...............................

(Official Character).

History.

1935, ch. 56, § 3, p. 105; am. 2002, ch. 32, § 15, p. 46. r

STATUTORY NOTES

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

§ 42-2974. Filing and recording of release and discharge — Effect.

Such release and discharge, when filed for record and recorded in the office of the county recorder of the county in which such tract, lot or parcel of land is situate, shall operate as a release and discharge of the land therein described from the payment of all existing indebtedness of said district, and release the same from the lien thereof, created by the assessment roll of said district, confirmed by the court; save and except levies made or to be made for the operation and maintenance of said district.

History.

1935, ch. 56, § 4, p. 105.

§ 42-2975. Cancellation of bonds and warrants upon delivery.

All bonds, together with all unmatured coupons attached, matured interest coupons and warrants delivered to the county treasurer under the provisions of this act shall be cancelled in the same manner as if called for payment and paid.

History.

1935, ch. 56, § 5, p. 105.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” near the end of the section refers to S.L. 1935, chapter 56, which is codified as§§ 42-2971 to 42-2975.

Effective Dates.

Section 6 of S.L. 1935, ch. 56 declared an emergency. Approved Feb. 25, 1935.

§ 42-2976. Payment of bonds after default.

All bonds hereafter issued by any drainage distrct [district] in the state of Idaho, whether original issue, funding or refunding, shall be governed by the provisions of this act in regard to the payment thereof after default as hereafter provided.

History.

1935, ch. 54, § 1, p. 102.

STATUTORY NOTES

Compiler’s Notes.

The bracketed word “district” was inserted by the compiler to correct the enacting legislation.

The words “this act” near the end of the section refer to S.L. 1935, chapter 54, which is compiled as§§ 42-2976 and 42-2977.

§ 42-2977. Pro rata payment of interest and bonds.

If at any time twenty per cent (20%) or more of the entire issued, uncalled and outstanding bonds of such district shall be past due and unpaid, after the application of all funds available for the payment thereof, then the numerical order, or other provisions of law, of payment of all outstanding and uncalled bonds of such district shall immediately cease, and thereafter the county treasurer shall distribute all funds coming into his hands applicable to the payment of bonds pro rata on all outstanding and uncalled bonds, whether due or to become due, to the end that after such default in the percentage herein set out, there shall be paid on each outstanding and uncalled bond its equal and ratable proportion of all funds so collected for the payment of said bonds; provided further, that if at the time of such default there shall be matured and unpaid interest on any or all of such outstanding bonds, then all moneys thereafter available for the payment of interest shall be applied toward the payment of interest longest in default until all bonds shall have assumed the same relative position in regard to interest payment. When interest shall have been paid on all outstanding bonds to the same date, thereafter all moneys available for the payment of interest shall be paid equally and ratably to the holders of all outstanding and uncalled bonds. No payment shall be made by the county treasurer after such default, upon either principal or interest, except upon presentation of the bond and the indorsement by the county treasurer of the amount paid thereon, together with the date of payment, except in the event of full payment of interest coupons, said coupons shall be surrendered to the county treasurer.

History.

1935, ch. 54, § 2, p. 102.

STATUTORY NOTES

Effective Dates.

Section 3 of S.L. 1935, ch. 54 declared an emergency. Approved Feb. 25, 1935.

§ 42-2978. Redemption of lands from lien for unpaid assessments.

The owner of any land within any drainage district charged with the lien of any assessment under the provisions of this chapter, may redeem the same from all liability by paying the unpaid portion of the assessment lien against such land, as shown by the assessment roll of said district, plus interest to the time of such payment; provided that the bonds of the drainage district and the accrued interest coupons thereon shall be accepted by the tax collector as cash in payment of such lien and assessment; and upon payment by any landowner of such lien and assessment against any land the same shall be relieved of all further liability and shall not be subject to any further or subsequent assessment by said district except only for the maintenance and operation of the drainage works of the district; and, provided further, upon full payment being made, as hereinabove provided, in cash and/or bonds and interest coupons, the tax collector shall issue to such owner a receipt showing the lien of the assessment against such land is fully paid and satisfied; and such tax collector shall also note upon the assessment roll of said district the full payment of the assessment against such land. All bonds and interest coupons delivered to the tax collector under the provisions of this act shall be canceled in the same manner as bonds which have been called for payment and paid.

History.

1933, ch. 183, § 1, p. 338.

STATUTORY NOTES

Cross References.

Lien of assessments,§§ 42-2935, 42-2936.

Compiler’s Notes.

The words “this act” in the last sentence refer to S.L. 1933, chapter 183, which is compiled as this section.

Effective Dates.

Section 2 of S.L. 1933, ch. 183 declared an emergency. Approved Mar. 11, 1933.

§ 42-2979. Sale of personal property — Procedure.

Personal property of a drainage district may be sold by its board of commissioners whenever the board finds and by resolution declares that the district no longer has use therefor.

If, in the opinion of the board, such property does not exceed fifty thousand dollars ($50,000) in value, it may sell the same without independent appraisal, notice or competitive bids.
Personal property exceeding fifty thousand dollars ($50,000) in estimated value shall first be appraised by three (3) disinterested freeholders of the district, who shall be selected by the board. It may then be sold at public or private sale to the highest bidder for cash at not less than its appraised value, after due notice.
Notice of sale shall describe the property, the appraised value thereof (by separate items, if so appraised), and the time, place and condition of sale.
If the appraised value does not exceed fifty thousand dollars ($50,000), notice of sale shall be posted in three (3) public places in said district to be determined in the resolution of said board of commissioners (one (1) of which shall be at the office or meeting place of said board) at least ten (10) days before the date of sale.
If the appraised value of the property exceeds fifty thousand dollars ($50,000), notice shall be posted as set forth in subsection 4. of this section and in addition shall be published in a weekly newspaper, published or having a general circulation in the district, once each week during the four (4) weeks preceding the date of sale.

History.

1951, ch. 63, § 1, p. 92; am. 2018, ch. 92, § 4, p. 197.

STATUTORY NOTES

Cross References.

Notice by mail,§ 60-109A.

Amendments.

The 2018 amendment, by ch. 92, substituted “fifty thousand dollars ($50,000)” for “$500” in subsections 1. and 2. and substituted “fifty thousand dollars ($50,000)” for “$1000” in subsections 4. and 5.

Effective Dates.

Section 2 of S.L. 1951, ch. 63 declared an emergency. Approved February 26, 1951.

§ 42-2979A. Trade-in or exchange of district property.

Whenever the board of commissioners of a drainage district finds and by resolution declares that the district no longer has use for any personal property of the district, or finds and declares that such property is no longer economical to use, the district may, in lieu of the sale of said property as provided in section 42-2979, Idaho Code, dispose of the property by exchanging the same in part payment for new or replacement property.
If the acquisition of the new or replacement property is to be let to bid under the provisions of chapter 28, title 67, Idaho Code, the district shall include in its request for bids a full description of the property to be exchanged as part payment and shall permit any interested bidder to examine the same, and any contract let as a result of said bid shall be awarded on the basis of net cost to the district after allowance for the property to be exchanged in part payment.
Exchange of property will be permitted only when, in the opinion of the board of commissioners of the district, the sale of property under the provisions of section 42-2979, Idaho Code, will yield a lesser monetary return to the district than the exchange thereof as provided in this section.

History.

I.C.,§ 42-2979A, as added by 2018, ch. 92, § 5, p. 197.

§ 42-2980. Dissolution of drainage district.

A drainage district may be dissolved by the district court for the county in which the office of such drainage district was last located on complaint or petition of parties holding and owning:

Fifty per cent (50%) or more of the issued, outstanding, unpaid bonds of such district; or,
Fifty per cent (50%) or more of all land situated within the boundaries of such district; or,
Claims, warrants, liens or other legal obligations of such district in an amount equal to not less than thirty per cent (30%) of the issued, outstanding and unpaid bonds of such district.
1. That the district has been abandoned, or for two (2) or more years last past has ceased to function, and there is little or no possibility that it ever will function in the future.
2. That no useful purpose exists for the further continuance of the organization of the district.
3. That there are not sufficient qualified voters of such district to hold a legal election.
4. That all essential functions of the district are or may be carried out and performed by another political subdivision of the state or other public or quasi public body to which all or any portion of the facilities of said district may be transferred by order of the court; provided, however, that the court, at its discretion, may require that interested persons be given further notice and opportunity to be heard with reference to any such proposed transfer.

It must be made to appear to the satisfaction of the court, by such complaint or petition, that any one or more of the following conditions exist in or as to said district:

History.

I.C.,§ 42-2980, as added by 1961, ch. 173, § 1, p. 267.

§ 42-2981. Certain public and private lands liable for costs and expense of drainage — Collection of drainage charges.

Lands, whether public or private, which have been developed for commercial, industrial, recreational, residential, governmental or highway purposes, and from which surface water or seepage drain into the irrigation or drainage system of any person or persons, canal company, irrigation district, drainage district, or ditch owners’ association, shall be liable for a proportionate share of the cost and expense of operating, maintaining, repairing and replacing the portions of such system which are used or allocated for drainage purposes. Drainage charges for any such lands which are not subject to the regular assessment powers of the person or entity owning or controlling the system shall be billed to, and shall be paid promptly by, the governmental unit owning the land. If the lands are privately owned, the drainage charges shall be billed to, and shall be paid promptly by the county in which the lands are located, and such charges shall be included in the county budget as a separate fund for drainage, the tax for which shall be levied against all privately owned lands in the county which are benefited by such drainage and which are not subject to the regular assessment powers of the owner of the irrigation or drainage system.

History.

I.C.,§ 42-2981, as added by 1978, ch. 271, § 1, p. 628.

§ 42-2982. Consolidation of districts.

If the boards of commissioners of any two (2) or more drainage districts formed under this chapter deem it in the best interest of their respective districts that they be consolidated into a single district, and if said districts are contiguous or lie at least in part within the same county, such boards may petition the district court of the county in which a greater portion of the lands of said proposed district are located for an order consolidating the same districts. For purposes of this section, districts may be considered to be contiguous even though they are separated by a body of water or other natural barrier so long as they are located in close proximity to each other. The petition shall be a joint petition signed by a majority of the commissioners of each respective board and attested to by the secretary of each board. The petition shall set forth a description of the lands and boundaries for the respective districts, a description of the proposed consolidated district and any facts showing that the consolidation is in the best interests of said districts. The petition shall also set forth and report the total outstanding obligation bonds of each consolidating district, the total value of the assets held by each consolidating district, the total levy assessed in each consolidating district in its most recent fiscal year, and the projected total levy to be assessed for the next complete fiscal year in the proposed newly consolidated district.
Evidence showing that the proposed consolidation is in the best interests of the districts may include, but is not limited to: that which shows that the proposed system of drainage will be conducive to providing the same benefits previously apportioned to the lands within the respective districts, enhance the functioning of the respective districts, the public health, convenience and welfare, or increase the public revenue, or that the consolidation of said districts and the said system of drainage and reclamation is a proper and an advantageous method of accomplishing the relief sought.
Upon receiving a petition brought under this section, the district court shall fix a time and place for the hearing of the petition, and the time and manner of filing any objections to the petition. Said hearing shall be held no sooner than sixty (60) days and no later than one hundred twenty (120) days after the first publication of notice of hearing. The clerk of the court shall cause publication of such order in three (3) consecutive weekly issues in a newspaper of general circulation within each county in which any of the lands within the said proposed consolidated district are located; together with a notice of the time and place at which the district court will consider said petition for consolidation. The petitioners shall pay all costs of publication.
Any person objecting to a petition for consolidation as described in this section shall provide for filing of written objection with the court. Only landowners within the proposed consolidated district, owners of land over which the drainage water from the proposed district would flow, and landowners served by any of the respective districts included in the petition shall have standing to file an objection to said petition. Written objections must be filed and served upon petitioners no later than twenty-one (21) days prior to the date of the hearing. The form of the objection shall be as provided in the Idaho rules of civil procedure. Each objection shall identify the name of the landowner entering the objection along with the objecting party’s address, location of the landowner’s land by township, range and section; identify the district or districts in which those lands lie; and state the nature or description of objection and basis or reasoning for the objection. Objections shall be limited to determining whether or not the proposed consolidation is in the best interests of the districts. (5) The judge of the court shall, at the hearing herein provided, hear and consider argument from the petitioners and decide whether the proposed consolidation is in the best interests of said districts. The court shall then consider evidence in objection only from landowners who have filed a written objection as described in subsection (4) of this section, and only such evidence as may be presented for or against the petition or objections thereto. The landowners who have filed written objections shall bear the burden of proving that the consolidation is not in the best interests of the districts. After any evidence offered in opposition to the petition, the petitioners may offer evidence regarding the consolidation or in opposition to any objections entered. Based on the agreement in the petition to consolidate by the boards of the respective districts, there shall be a rebuttable presumption that the proposed consolidation of the districts is in the best interests of the petitioning districts and the landowners therein, unless the court finds by a preponderance of the evidence that the proposed consolidation is not in the best interests of the districts. Consolidation shall not be permitted to either exclude from the consolidated district lands that are within the petitioning districts or to include lands within the consolidated district that are not within the petitioning districts. The court shall make its determination wholly in the affirmative or negative whether said petitioning districts shall be consolidated.

(6) If the petition is granted, the court shall cause an order to be entered and recorded in the judgment record of each of the counties in which the lands within the consolidated district are situated, setting forth the facts found upon the hearing of said petition, and said order shall define the boundaries of said district and describe the lands included therein by township, range and section only. The clerk of said district court shall cause a copy of the order declaring said consolidated district, duly certified, to be filed in the office of the secretary of state. From the date of said filing and thereafter, said district consolidation shall be deemed complete.

(7) The court shall name the commissioners appointed by it for the consolidated district pursuant to the provisions of section 42-2910, Idaho Code. In appointing commissioners to the newly consolidated district, the court shall consider preference to appointment of at least one (1) commissioner from each of the districts petitioning for consolidation. The consolidated district shall be known and described by the name and number of the largest district of those consolidated.

(8) The provisions of this section shall apply exclusively to the consolidation of drainage districts which have been formed under this chapter.

History.

I.C.,§ 42-2982, as added by 2011, ch. 256, § 1, p. 701.

Chapter 30 DRAINAGE DISTRICT REFUNDING BONDS

Sec.

§ 42-3001. Issuance authorized.

The board of commissioners of any drainage district organized under the laws of the state of Idaho may issue negotiable coupon bonds, to be denominated refunding bonds, for the purpose of refunding any of the bonded indebtedness of the district, whether due or not due, on which has or may hereafter become payable at the option of the district or by consent of the bondholders, or by any lawful means, whether such bonded indebtedness be now existing or may hereafter be created, and there shall not be funds in the treasury of such district available for the payment or redemption of such bonds and the accrued and unpaid interest thereon.

History.

1925, ch. 21, § 1, p. 29; I.C.A.,§ 41-2601.

CASE NOTES

Bankruptcy.

The national bankruptcy act provides relief when a drainage district is unable to meet its debts as they mature, and the mere fact that the district has the power, under the state law, to continue to levy assessments to provide a fund to pay its bonds does not prevent it from having relief of composition under the bankruptcy law. In re Drainage Dist. No. 2, 28 F. Supp. 84 (D. Idaho 1939).

Composition of District’s Indebtedness.

Plan for composition of drainage district’s indebtedness by reconstruction finance corporation was held equitable and was confirmed. In re Drainage Dist. No. 2, 28 F. Supp. 84 (D. Idaho 1939).

Constitutionality.

Holder of real property in drainage district was not deprived of his property without due process by issuance of refunding bonds which would encumber the property for a longer period than the outstanding issue. Sebern v. Cobb, 41 Idaho 386, 238 P. 1023 (1925).

Legislature may provide for issuance and sale of refunding bonds, even though there is an interim between their issuance and sale and the redemption of the outstanding bonds. Sebern v. Cobb, 41 Idaho 386, 238 P. 1023 (1925).

Construction.

This chapter must be construed together with provisions of chapter 29 of this title, and with the intent of§ 42-2964. Sebern v. Cobb, 41 Idaho 386, 238 P. 1023 (1925).

§ 42-3002. Optional procedure.

Whenever any drainage district has issued bonds and the same are outstanding and unpaid, and the same have been outstanding and unpaid for more than three (3) years, the district may, in the manner hereafter provided, issue and sell bonds for the purpose of paying and redeeming such outstanding bonds, and may call and pay said bonds, or at its option, may authorize the issue of sufficient bonds to pay and redeem the whole of such outstanding bonds, but may issue and sell the same in such amounts from year to year, as will pay and redeem the outstanding bonds falling due each year, and may continue to issue and sell such refunding bonds until the whole of the outstanding bond issue, which has been refunded, is paid and redeemed.

History.

1925, ch. 21, § 2, p. 29; I.C.A.,§ 41-2602.

CASE NOTES

Call of Outstanding Bonds.

This chapter does not alter method of calling outstanding bonds that have run for period of three years (§ 42-2957). Sebern v. Cobb, 41 Idaho 386, 238 P. 1023 (1925).

County treasurer may not call bonds until they have been outstanding for more than three years and unless he has over $5000 on hand for their payment, and he can not call more bonds than he can pay with funds in his hands. Sebern v. Cobb, 41 Idaho 386, 238 P. 1023 (1925).

Impairment of Contract Obligation.

Calling of bonds which have been outstanding and unpaid for more than three years did not impair bondholder’s contract by depriving him of interest thirty days after call. Sebern v. Cobb, 41 Idaho 386, 238 P. 1023 (1925).

1925, ch. 21, § 8, p. 29; I.C.A.,§ 41-2608.

Former§ 43-3102 was repealed. See Prior Laws,§ 42-3101.

§ 42-3103. Definitions.

Whenever used or referred to in this act, unless a different meaning clearly appears from the context, the following terms shall have the following meanings:

“Board” or “board of commissioners” means the board of commissioners of the flood control district.
“Commissioner” means a member of the board of commissioners of the flood control district.
“Debris removal” means to remove from the channels and banks of streams any artificial debris, plants and other materials that obstruct or are likely to obstruct the flow of water therein and thereby cause flooding or interfere with the lawful diversion and beneficial use of water.
“Department” means the department of water resources, state of Idaho.
“Director” means the director of the department of water resources, state of Idaho.
“District” means any flood control district organized by authority of this act or prior acts of the Idaho legislature.
“Flood” or “flooding” means the inundation of normally dry land areas with water caused by the overflow or rise of rivers, streams or lakes, and other surface watercourses, or the unusual and rapid accumulation or runoff of surface waters from any source.
“Flooding emergency” means a circumstance in which the board has determined that the district is required to take immediate action to protect life or property from injury or damage resulting from existing or imminent flooding.
“Flood fight” means the activities and operations authorized by the board in response to a flooding emergency.
“State” means the state of Idaho.
“Structural works of improvement” means any undertaking for flood prevention, including structural and land treatment measures, and for the conservation, development, utilization and disposal of water, as provided for in the act of the congress of the United States known as the Watershed Protection and Flood Prevention Act (U.S.C., tit. 16, sections 1001-1008) and acts amendatory thereto.

History.

1971, ch. 300, § 3, p. 1219; am. 2014, ch. 72, § 1, p. 183.

STATUTORY NOTES

Prior Laws.

Former§ 42-3103 was repealed. See Prior Laws,§ 42-3101.

Amendments.

The 2014 amendment, by ch. 72, added present subsections (3), (7) through (9), and (11) and redesignated the subsequent subsections accordingly.

Compiler’s Notes.

The names of the department of water administration and of the director of the department of water administration have been changed to the department of water resources and the director of the department of water resources on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 20, §§ 28 and 31 (§§ 42-1801a and 42-1804).

The term “this act” in the introductory paragraph refers to S.L. 1971, chapter 300, which is compiled as§§ 42-3101 to 42-3115 and 42-3117 to 42-3126.

§ 42-3104. Districts — Composition — Designated by number.

Flood control districts, composed of any portion of a county, or any county or counties requiring flood control, may be established pursuant to this act and when so established shall be governmental subdivisions of this state and public bodies, corporate and politic. Districts shall be assigned a number by the department and shall have all of the powers and duties conferred by law upon such districts.

History.

1971, ch. 300, § 4, p. 1219.

STATUTORY NOTES

Prior Laws.

Former§ 42-3104 was repealed. See Prior Laws,§ 42-3101.

Compiler’s Notes.

The words “this act” in the first sentence refer to S.L. 1971, chapter 300, which is compiled as§§ 42-3101 to 42-3115 and 42-3117 to 42-3126. The reference probably should be to “this chapter,” being chapter 31, title 42, Idaho Code.

§ 42-3105. Petition to establish district — Contents.

A petition, signed by one-third (1/3) or more of the qualified voters residing within the territory of the proposed district may be filed with the director of the department of water resources asking that a district be organized in the territory described in the petition. Such petition shall set forth:

The object of the organization of the district.
The temporary boundaries of the proposed district.
That the establishment of said district, and the proposed method or system of flood control is a proper and advantageous method of accomplishing the relief sought or the benefits to be secured.
That the establishment of said district and the reservoirs, dams, levees, dikes, power plants, plans of irrigation and drainage improving, enlarging, widening, deepening, or straightening existing watercourses or rivers or the removal of natural obstructions therefrom or any other thing to be done will be conducive to the public health and welfare or will increase the public revenue.

1971, ch. 300, § 7, p. 1219.

STATUTORY NOTES

Cross References.

Notice by mail,§ 60-109A.

Prior Laws.

Former§ 42-3107 was repealed. See Prior Laws,§ 42-3101.

§ 42-3108. Hearing on petition — Findings and order of director — Recording.

The director shall, at the hearing herein provided, permit any person or corporation interested in the formation of the proposed district, or any of its objects or purposes, to appear and make objections to the organization of the district. The petition shall be prima facie evidence of proponents of the formulation of the district, although such petitioners may withdraw their names at said hearings, or as is otherwise provided by law. The director shall make his findings upon facts alleged in the petition and any objections presented at such hearing, and any other facts necessary for the determination of the practicability and feasibility of said district.

If the director shall recommend that said district be organized, he shall make and enter an order and record the same in the office of the county recorder of each county wherein the lands of the said district thereof are located. The order shall set forth facts as found by him upon the hearing of the petition. Upon entering and recording the order, in the manner provided, the district shall be considered as organized.

Whenever the director shall recommend against the organization of the district at the hearing, but shall recommend the formulation of a district materially different from that prayed for in the petition filed with him, there shall be no further proceedings thereon, unless the director be requested so to do by one-third (1/3) of the qualified voters therein in the same manner as provided herein for the filing of the original petition, and upon the filing of such petition the director shall be required to comply with this act as if such petition had been filed with him in the first instance.

If the director shall recommend that said district not be organized at such hearing, nothing further shall be done unless a new petition shall be filed in the manner herein provided.

History.

1971, ch. 300, § 8, p. 1219.

STATUTORY NOTES

Prior Laws.

Former§ 42-3108 was repealed. See Prior Laws,§ 42-3101.

Compiler’s Notes.

The words “this act” near the end of this paragraph refer to S.L. 1971, chapter 300, which is compiled as§§ 42-3101 to 42-3115 and 42-3117 to 42-3126. The reference probably should be to “this chapter,” being chapter 31, title 42, Idaho Code.

CASE NOTES

Cited

Marty v. State, 117 Idaho 133, 786 P.2d 524 (1989).

§ 42-3109. Board members — Appointment — Bond of commissioners — Oath — Removal.

The order of the director organizing said district shall name the members of the board without regard to political affiliation. Each division of the district shall be represented by one (1) commissioner who shall be a qualified voter within the division which he represents, and a resident and qualified elector of the county in which he resides.

The members of the board of the district, appointed as aforesaid, shall be entitled to enter upon the duties of their office upon qualification as county officers are required to qualify, and upon each commissioner giving a bond to the state for the benefit of said district for the faithful performance of his duties as such commissioner in the sum of five thousand dollars ($5,000) with one (1) or more sureties, or a surety bond, the premium for which shall be a lawful expenditure of the district, either of which shall be approved by the judge of the district court wherein the commissioner resides; provided, the judge of the district court, upon application and proper showing by the board may enter an order reducing the amount of the bond to such sum as may appear to him to be reasonable and adequate under the showing made. The commissioners shall take the oath of office and file their bonds within fifteen (15) days after they are appointed and they shall hold office until their successors are duly appointed and qualified as in this act provided. The bonds of the commissioners shall be filed with the clerk of the district court of the county in which the office of the district is located and kept in trust by said clerk of the district court.

Immediately after their appointment and the filing and approval of their bonds the commissioners shall organize themselves into a board, as in this act provided, and shall by lot determine the terms of their office, which shall be one (1), two (2) and three (3) years, respectively. Annually thereafter the director shall appoint the commissioner, or commissioners, to succeed those whose terms of office are expiring. Such appointments shall be for three (3) years, provided that each division of the district shall be represented by one (1) commissioner who shall be a qualified voter within the division which he represents, and a resident and qualified elector of the county in which he resides.

The director may remove a commissioner for neglect of duty, misconduct or malfeasance or inability to perform the duties of a commissioner, or if the commissioner is no longer a resident of the division from which appointed. The director may appoint a successor for the unexpired term.

History.

1971, ch. 300, § 9, p. 1219; am. 2018, ch. 193, § 1, p. 429.

STATUTORY NOTES

Prior Laws.

Former§ 42-3109 was repealed. See Prior Laws,§ 42-3101.

Amendments.

The 2018 amendment, by ch. 193, added “— Removal” at the end of the section heading and added the last paragraph.

Compiler’s Notes.

The words “this act” near the end of the second paragraph and near the beginning of the third paragraph refer to S.L. 1971, Chapter 300, which is compiled as§§ 42-3101 to 42-3115 and 42-3117 to 42-3126. The reference probably should be to “this chapter,” being chapter 31, title 42, Idaho Code.

CASE NOTES

Cited

Marty v. State, 117 Idaho 133, 786 P.2d 524 (1989).

§ 42-3110. Organization of board — Approval by court.

The board, duly organized by order of the director shall within a reasonable time after their appointment, qualification and organization, file, in the district court of the county in which their office is located, a petition praying that all of the proceedings prior thereto may be examined and approved by the court.

The petition shall set forth in detail the proceedings taken prior to the entry of the order organizing the district, and the subsequent appointment and organization of the board. Upon the filing of the petition the court may require such notice to be given of the hearing on said petition as in his discretion he deems necessary and proper. At the hearing the court shall require that evidenciary [evidentiary] proof be presented of all of such proceedings taken pursuant to the rules of evidence.

In the event that the court finds that all proceedings were in conformity with this act, and that all procedures were followed, and that said district was organized in conformity with this act, then the court shall make its findings of fact, conclusions of law and order confirming these proceedings.

The order of the court entered upon the hearing of any petition shall be conclusive as the regularity of the proceedings unless appealed from within thirty (30) days after the entry of such order, provided that upon such appeal no bond shall be required, except for costs of the appeal, and no stay shall be allowed pending the appeal.

History.

1971, ch. 300, § 10, p. 1219.

STATUTORY NOTES

Prior Laws.

Former§ 42-3110 was repealed. See Prior Laws,§ 42-3101.

Compiler’s Notes.

The bracketed word “evidentiary” in the second paragraph was inserted by the compiler to correct the enacting legislation.

The words “this act” in the third paragraph refer to S.L. 1971, chapter 300, which is compiled as§§ 42-3101 to 42-3115 and 42-3117 to 42-3126. The reference probably should be to “this chapter,” being chapter 31, title 42, Idaho Code.

§ 42-3111. Commissioners — Annual appointment — Officers’ election — Duties.

Annually on the same day the district was organized the director shall appoint a commissioner or commissioners whose term expires. Each commissioner thereafter who may be appointed shall qualify by taking the oath and filing a bond which shall be approved in the same manner as provided in section 42-3109[, Idaho Code,] of this act.

§ 42-3114. Compensation of commissioners.

The commissioners of the district shall fix the compensation they shall each receive for their services, not to exceed the sum of one hundred dollars ($100) per day, and shall fix the reimbursement they shall each receive for their travel and their necessary expenses for each day they shall be away from their place of residence and engaged in the business of their office, subject to the limits provided in section 67-2008, Idaho Code. The commissioners shall present an itemized account under oath on forms prescribed by the board.

History.

1971, ch. 300, § 14, p. 1219; am. 1978, ch. 244, § 1, p. 535; am. 2014, ch. 72, § 2, p. 183.

STATUTORY NOTES

Prior Laws.

Former§ 42-3114 was repealed. See Prior Laws,§ 42-3101.

Amendments.

The 2014 amendment, by ch. 72, rewrote the first sentence, which formerly read: “The commissioners of the district shall each receive for their services the sum of twenty dollars ($20.00) per day, and fifteen cents (15¢) per mile for travel and their necessary expenses for each day they shall be away from their place of residence and engaged in the business of their office”.

§ 42-3115. Commissioners — Powers and duties.

The board of commissioners of flood control districts shall have the following powers and duties:

To annually fix and determine the amount of money required to be raised by taxation to supply funds for costs of construction, costs of operation and maintenance of the work and equipment of the district, and to levy and cause to be collected assessments on real property within the district in an amount not to exceed six hundredths of one percent (.06%) of the market value for assessment purposes on all taxable property within the district, provided however that a higher levy may be approved and ratified by the qualified voters at an election to be held, subject to the provisions of section 34-106, Idaho Code, for that purpose in the same manner as provided for the approval and ratification of contracts, in section 42-3117, Idaho Code, and said levy shall be certified by the board to the board of county commissioners of the county, or counties, in which said district is located, with directions that at the time and in the manner required by law for levying taxes for county purposes, such board, or boards, of county commissioners shall levy such tax upon the market value for assessment purposes of the real property within the boundaries of the district. Such certification of levies shall be prepared and forwarded by the board of the flood control district to the board, or boards, of county commissioners on or before September 1 of each year.
To employ such personnel as may be necessary to carry out the purposes and objects of this chapter, with the full power to bind said district for the compensation of such personnel.
To sue and be sued in the name of the district; to have a seal, which seal shall be judicially noticed; to have perpetual succession unless terminated as hereinafter provided; to make and execute contracts and other instruments necessary or convenient to the exercise of its power and to promulgate, amend and repeal rules not consistent with the provisions of this chapter.
To manage and conduct the business and affairs of the district, both within and without the district.
To enter into contracts for the purposes of this chapter, provided however, that the board shall purchase goods and services in accordance with the provisions of chapter 28, title 67, Idaho Code. However, where it is determined by order of the board that there is an existing flooding emergency, or that the district is in a flood fight, the requirement for sealed competitive bids shall not apply.
To prescribe the duties of officers, agents and employees as may be required.
To establish the fiscal year of the district and to keep records of all business transactions of the district.
To prepare a statement of the financial condition of the district at the end of each fiscal year in a form to be prescribed by the director or by the legislative services office, to publish in at least one (1) issue of some newspaper published, or in general circulation in the county, or counties, in which such district is located and to file a certified copy of such financial report with the director and the legislative services office on or before February 2 of each year. (9) To have an audit of the financial affairs of the district as required in section 67-450B, Idaho Code. A certified copy of said audit shall be filed with the director on or before February 2 following the audit.
1. To construct, operate and maintain structural works of improvement;
2. To use natural streams and to improve the same for use as a flood control structure;
3. To declare a flooding emergency and fight floods. Provided however, that the extent of any stream channel alteration shall be limited to that amount of work deemed necessary by the board to safeguard life or property, including growing crops during the period of emergency;
4. To repair and stabilize stream banks;
5. To remove debris. If the district determines that there is no reasonable means of transporting and disposing of debris outside the mean high water mark of the channel, the district may deposit the debris along the stream banks outside the mean high water mark, and may thereafter dispose of combustible materials removed from the stream by burning in conformance with any applicable permitting requirements of the state of Idaho or local governments, and after reasonable notice to nearby landowners; and
6. To conduct flood control operations to prevent flooding from the release of water from a canal, ditch or drain upon the request of the owner thereof.

Such levies shall be levied and collected in the manner provided by law, and the moneys collected shall be turned over to the treasurer or treasurers, of the county, or counties, in which said district is located.

Said moneys shall be public funds and subject to the provisions of the public depository laws of the state.

(10) To obtain options upon and acquire by purchase, exchange, lease, gift, grant, bequest, devise, or otherwise, any property, real or personal, and improve any properties acquired; to receive income from such properties and to expend such income in carrying out the purposes and provisions of this chapter; to lease any of its property or interest therein in furtherance of the purposes and provisions of this chapter, provided that no contract or agreement for the acquisition, purchase or repair of personal property involving expenditure in excess of one thousand dollars ($1,000), shall be entered into without first advertising for sealed competitive bids as herein provided.

(11) To have the power of eminent domain for the use of the district in the construction, operation, maintenance and upkeep of its structures, waterways, dikes, dams, basins, or any other use necessary in the carrying out of the provisions of this chapter.

(12) To convey rights-of-way and easements for highways, public roads, public utilities, and for other purposes over district property, as shall be determined by the board to be in the best interests of the district.

(13) To convey, by deed, bill of sale, or other appropriate instrument, all of the estate and interest of the district in any real or personal property. Prior to such sale or conveyance, the board shall have the property appraised by three (3) disinterested residents of the district, which appraisal shall be entered in the minutes of the board. The property may be sold at public auction or at a private sale by sealed competitive bids, as the board shall determine, to the highest cash bidder, provided that in no case shall any property of a district be sold for less than its appraised value. All sales by sealed competitive bids shall be advertised as herein provided.

(14) To conduct the following activities and operations for the prevention of floodwater and sediment damages, and the conservation, development, utilization and disposal of water, whether within or outside the boundaries of the district:

(15) To enter into contracts or agreements with the United States or any of its officers, agents, or subdivisions, or with the state or any of its officers, agents or political subdivisions, and to cooperate with such governments, persons or agencies in effectuating, promoting and accomplishing the purposes of this chapter, provided that the district has sufficient moneys on hand, or in their budget for the year in which said contract is entered into, to defray the expenditure of funds called for in such contract without the creation of any indebtedness. Whenever any such contract shall, by its terms, require the expenditure of funds by the district in excess of the moneys on hand or the funds to be realized from its budget for the year in which said contract is entered into, then such contract may not be entered into by the district until ratified by two-thirds (2/3) of the qualified voters voting at an election to be held, subject to the provisions of section 34-106, Idaho Code, for that purpose, according to the provisions of this chapter.

(16) To bear its allocated share of the cost of any project resulting from any contract or agreement entered into as provided herein.

(17) To take over, administer and maintain pursuant to any agreement or contract entered into in accordance with the provisions of this chapter any flood control project within or without the boundaries of the district undertaken in cooperation with the United States or any of its agencies, or with the state of Idaho or any of its agencies, or any combinations thereof.

(18) To accept donations, gifts and contributions in money, services, or materials, or otherwise, from the United States or any of its agencies, or the state of Idaho or any of its agencies or any combinations thereof, and to expend such moneys, services, or materials in carrying on its operations.

(19) To exercise all other powers necessary, convenient or incidental to carrying out the purposes and provisions of the chapter.

History.

1971, ch. 300, § 15, p. 1219; am. 1979, ch. 175, § 1, p. 522; am. 1985, ch. 79, § 1, p. 152; am. 1993, ch. 258, § 1, p. 887; am. 1993, ch. 327, § 21, p. 1186; am. 1993, ch. 387, § 12, p. 1417; am. 1995, ch. 82, § 18, p. 218; am. 1995, ch. 118, § 60, p. 417; am. 1996, ch. 159, § 17, p. 502; am. 2005, ch. 213, § 9, p. 637; am. 2014, ch. 72, § 3, p. 183.

STATUTORY NOTES

Prior Laws.

Former§ 42-3115 was repealed. See Prior Laws,§ 42-3101.

Amendments.

Compiler’s Notes.

The 2014 amendment, by ch. 72, rewrote subsection (5), which formerly read: “To construct, operate and maintain structural works of improvement for the prevention of floodwater and sediment damages, and the conservation, development, utilization, and disposal of water, whether within or without the boundaries of the district, and to enter into contract for the purposes set forth above, provided however, that the board shall purchase goods and services in accordance with the provisions of chapter 28, title 67, Idaho Code. However, where it is determined by order of the board that there is an existing emergency, or where it is determined that the district is in a flood fight resulting from unanticipated conditions, the requirement for sealed competitive bids shall not apply” and rewrote subsection (14), which formerly read: “To use natural streams and to improve the same for use as a flood control structure. However, in the event that the use of the natural stream involves alteration of the stream channel, no such alteration shall be made by the district until such alteration is approved by the director”. Compiler’s Notes.

Section 41 of S.L. 1993, ch. 327 read: “All employees employed by the Joint Senate Finance-House Appropriations Committee, the Legislative Auditor or Legislative Budget Office on June 30, 1993, shall be transferred to the Legislative Council and shall be deemed to be employees of the Legislative Council on July 1, 1993. All moneys which have been appropriated to and been encumbered by the Joint Senate Finance-House Appropriations Committee, the Legislative Budget Office and the Legislative Auditor on June 30, 1993, shall be transferred to the Legislative Council and shall be deemed to be encumbered by that body. All moneys appropriated to the Joint Senate Finance-House Appropriations Committee for the Legislative Auditor and the Legislative Budget Office are deemed appropriated to the Legislative Council for the same period and purpose.”

§ 42-3116. Director’s approval — When required.

In the event that the district’s activities and operations will alter a stream channel within the meaning of section 42-3802, Idaho Code, the district shall obtain the director’s prior approval pursuant to chapter 38, title 42, Idaho Code.
The district’s conduct of a flood fight in response to a flooding emergency declared by the board shall not require a stream channel alteration permit, provided the district complies with the emergency waiver procedures consistent with section 42-3808, Idaho Code, and rules promulgated by the Idaho water resource board.

History.

I.C.,§ 42-3116, as added by 2014, ch. 72, § 4, p. 183.

STATUTORY NOTES

Cross References.

Idaho water resource board,§ 42-1732.

Prior Laws.

Former§ 42-3116, Sealed bids — When required — Publication of notice, which comprised 1971, ch. 300, § 16, p. 1219; am. 1979, ch. 175, § 2, p. 522; am. 1993, ch. 258, § 2, p. 887, was repealed by S.L. 2005, ch. 213, § 10.

§ 42-3117. Contracts submitted to voters — Notice — Election.

Whenever any contract with the United States or any agency thereof or, the state, is proposed to be entered into by any district which would create indebtedness in excess of the moneys on hand or the funds to be realized from their budget for the year in which said contract is entered into, the board shall first submit the question to the qualified voters of the district at an election to be held, subject to the provisions of section 34-106, Idaho Code, for that purpose.

Notice of such election must be given as provided in section 34-1406, Idaho Code. The notice must specify the date of the holding of the election, the qualification of the voters, the nature of the contract set forth in general terms, and by reference shall give notice as to where a copy of such contract, proposed to be entered into, may be viewed by the qualified voters, one (1) of which places shall be with each of the commissioners of the district and such other places as the board may determine by their order. Said notice shall further set forth the amount of the contract, the amount of the funds, if any, which will be received from the United States, and/or the state, the amount that the district will be obligating itself to pay, the duration of construction and obligation of such contract, the estimate of the mill levy required for operation, maintenance and administrative expenses of the district, whether such obligation may be met, within the limitations imposed by the levy authorized by this chapter, or whether, in addition to voting upon the contract it will be necessary to vote upon an increase in the authorized levy.

The notice shall further state the hours between which the polls will be open, the definite place or places of holding the election, which shall be fixed by the board by its order, which order will require at least one (1) polling place in every division of the district, and the question to be voted upon.

The ballot shall contain the question to be voted upon and shall contain the words “Contract-Yes” and “Contract-No,” or other words equivalent.

In the event such contract requires the district to call for a levy beyond the limitations imposed in section 42-3115, Idaho Code, then the ballot shall contain the question to be voted upon and shall contain the words “Contract and Levy-Yes” and “Contract and Levy-No” or other words equivalent.

In this election, the polling places shall be presided over by a board of election which shall be appointed by the board which shall consist of two (2) judges and a clerk, who shall be qualified voters of the division and the district. Before entering upon their duties each member of the board of election shall take an oath, which shall be administered by any qualified district voter before they shall perform their duties as such member of the board of election.

In such election the ballots used by the voters shall be kept in a sealed container until the polls are closed at the time specified in the notice of election and then shall be counted in open view.

It is intended that no informalities in the conduct of such election shall invalidate the same if the election shall have been otherwise fairly held.

The returns of such election shall be canvassed by the board which shall constitute the board of canvassers. All ballot boxes shall be returned to the board immediately upon the close of the polls and the counting of the ballots, and the ballots shall be canvassed not more than ten (10) days thereafter. If upon the canvass of the votes it appears that the contract was approved by two-thirds (2/3) of the qualified voters voting at the election, then the contract will be considered to be approved.

History.

1971, ch. 300, § 17, p. 1219; am. 1995, ch. 118, § 61, p. 417.

STATUTORY NOTES

Prior Laws.

Former§ 42-3117 was repealed. See Prior Laws,§ 42-3101.

§ 42-3118. Electors — Qualifications.

No person shall be entitled to vote at an election for the purpose of raising the authorized maximum levy or the ratification of contracts by a flood control district, or for any other purpose in connection with said district, unless at the time of the election he is:

An elector within the meaning of article 6, section 2, of the Constitution of the state of Idaho; and
A resident within the district for a period of thirty (30) or more days next preceding the election.

History.

1971, ch. 300, § 18, p. 1219; am. 1982, ch. 254, § 10, p. 646.

STATUTORY NOTES

Prior Laws.

Former§ 42-3118 was repealed. See Prior Laws,§ 42-3101.

§ 42-3119. Title to and sale of waters — Disposition of aggregate.

The commissioners of any flood control district may in the manner provided by law obtain title to any unappropriated waters which said district has developed, conserved, or stored and said commissioners may sell, dispose, or use said waters within or without the said district in any manner which the commissioners shall decide is of the greatest advantage to the district. The powers herein granted to the commissioners shall not be denied them by reason of contrary provisions of any other statute, except that the district may not obtain title to any waters previously appropriated.
If in the operation of the works of the flood control district or in the removal of natural obstructions from the beds of navigable lakes, rivers, and streams between the ordinary high water marks, the district acquires rock, sand or gravel aggregates, the district may dispose of such aggregate not needed for district purposes through commercial sales or by donation to public agencies. District purposes as used in this section shall include construction or reconstruction of dikes, levees, and related access facilities. If sold through commercial sales or used for nonflood control related improvements on private land, the fees required by chapter 7, title 47, Idaho Code, shall apply and shall be paid to the state board of land commissioners. If the aggregate is donated to any public agency for use by that public agency, no fees shall be imposed or collected.
As used in this section, public agency means a state agency, county, municipality, or highway district.

History.

1971, ch. 300, § 19, p. 1219; am. 1986, ch. 142, § 1, p. 399.

STATUTORY NOTES

Cross References.

State board of land commissions, Idaho Const., Art. IX, § 7 and§ 58-101 et seq.

Prior Laws.

Former§ 42-3119 was repealed. See Prior Laws,§ 42-3101.

§ 42-3120. Enlargement of district — Petition.

An existing district may be enlarged in the same manner as a district may be originally organized pursuant to the provisions of this act, except that a petition for the enlargement of an existing district shall be signed by at least one-third (1/3) of the qualified voters in the area of the proposed extension to this existing district, as shall be determined by the voters who voted in the last general election next preceding the filing of the petition for enlargement; and shall bear the indorsement of the board of the existing district certifying that the proposed enlargement is desirable.

History.

1971, ch. 300, § 20, p. 1219.

STATUTORY NOTES

Prior Laws.

Former§ 42-3120 was repealed. See Prior Laws,§ 42-3101.

Compiler’s Notes.

The words “this act” near the middle of the section refer to S.L. 1971, chapter 300, which is compiled as§§ 42-3101 to 42-3115 and 42-3117 to 42-3126. The reference probably should be to “this chapter,” being chapter 31, title 42, Idaho Code.

The director shall recommend for or against the consolidation, basing his decision on his findings of facts and stating his reasons. If the director shall recommend that the districts be not consolidated, nothing further shall be done, unless a new petition shall be filed in the manner herein provided. If the director shall recommend that the districts be consolidated, he may make and enter an order consolidating the districts and record said order in the office of the county recorder of each county wherein the lands in said consolidated district are located. The order shall also divide the consolidated district into not less than three (3) nor more than nine (9) divisions, and shall name the commissioners appointed by him for the consolidated district. The consolidated district shall be known and described by the name and number of the largest district of those consolidated. In the case of the consolidation of two (2) or more districts which are contiguous and already existing and concerning each of which the confirmation of proceedings has already been obtained, procedure the same in all respects as herein specified for the creation of an original flood control district shall be followed by the board of the consolidated district for the purpose of procuring a like order, or orders, of the district court touching such consolidation.

History.

1971, ch. 300, § 24, p. 1219.

STATUTORY NOTES

Prior Laws.

Former§ 42-3124 was repealed. See Prior Laws,§ 42-3101.

§ 42-3125. Director may submit consolidation to election.

The director may upon receiving a petition for consolidation of two (2) or more flood control districts, order an election to be held, subject to the provisions of section 34-106, Idaho Code, in each district. If two-thirds (2/3) of the qualified voters in each district, voting at the election, shall vote in favor of consolidation, the director shall make and enter an order consolidating the districts as in the preceding section. If fewer than two-thirds (2/3) of the qualified voters in any district voting at the election shall vote in favor of the consolidation, nothing further shall be done, unless a new petition shall be filed in the manner herein provided.

History.

1971, ch. 300, § 25, p. 1219; am. 1995, ch. 118, § 62, p. 417.

§ 42-3126. Dissolution of district.

A district may be dissolved by the district court for the county in which the office of a district was last located, on complaint or petition of parties holding and owning:

Fifty per cent (50%) or more of the issued, outstanding, unpaid bonds of such district; or
Fifty per cent (50%) or more of all land located within the boundaries of such district; or
Claims, warrants, liens or other legal obligations of such district in an amount equal to not less than thirty per cent (30%) of the issued, outstanding and unpaid bonds of such district; or
Upon the complaint of the director of the department of water resources.

It must be made to appear to the satisfaction of the court, by such complaint or petition, that any one (1) or more of the following conditions exist in or as to said district:

1. That the district has been abandoned, or for two (2) or more years last past has ceased to function, and there is little or no possibility that it will ever function in the future.

2. That no useful purpose exists for the further continuance of the organization of the district.

3. That there are not sufficient qualified voters of such district to hold a legal election.

History.

1971, ch. 300, § 26, p. 1219.

STATUTORY NOTES

Compiler’s Notes.

Section 28 of S.L. 1971, ch. 300 read: “This act shall not impair or affect any act done, offense committed, or right accrued or acquired, or liability, penalty, forfeiture, or punishment incurred prior to the time this act takes effect, but the same may be enjoyed, asserted, enforced, prosecuted, or inflicted as fully as to the same extent as if this act had not been passed. All districts heretofore incorporated under the laws of the state, repealed by this act, will continue to operate and will succeed to all of the rights, privileges and duties of the district under this act.”

Section 29 of S.L. 1971, ch. 300 read: “If any section, subsection, subdivision, paragraph, sentence, part or provision of this act shall be found to be invalid or ineffective by the court, it shall be conclusively presumed that this act would have been passed by the legislature without such invalid section, subsection, subdivision, paragraph, sentence, part or provision, and this act, as a whole, shall not be declared invalid by reason of the fact that one or more sections, subsections, subdivision, paragraphs, sentences, parts or provisions may be so found invalid.”

Effective Dates.

Section 30 of S.L. 1971, ch. 300 provided that this act shall be in full force and effect on and after July 1, 1971.

§ 42-3127. Exclusion of a division.

The qualified electors residing in a division of a flood control district may petition the director of the department of water resources requesting to be excluded from a district. Said petition must be signed by one-third (1/3) or more of the qualified electors residing within the territory of the division and the petition must:

Show that the division either plans to join another existing district or form a new district.
Describe the impacts on the remainder of the district after the division is excluded.
Describe the benefits to the division that will result from its exclusion from the original district.
Be in proper form as required by section 42-3105, Idaho Code, to proceed with the formation of a new district or be in proper form as required by section 42-3120, Idaho Code, to proceed with the addition of the division to an already existing district.
Present an equitable division of assets and liabilities between the division and the remaining district.

Upon receipt, the director shall examine the petition, and if in proper form and if it appears that an equitable distribution of assets and liabilities can be made, the director shall proceed with the publication of notice, as described in section 42-3107, Idaho Code. The director shall, at the hearing, permit any person or corporation interested in the exclusion of the division to appear and present testimony and evidence in support of or against exclusion of the division. The director shall base his findings upon allegations in the petition, testimony and evidence presented at the hearing and any other facts necessary for the determination of the practicability and feasibility of exclusion of the division.

If the director shall recommend that a division should be excluded, he shall make and enter his findings in the form of a petition to the district court for the county in which the largest portion of the division is located. The district court may then order the exclusion of a division.

If the director shall determine that a division should not be excluded, nothing further shall be done, unless a new petition is filed in a similar manner as described above.

At such time as the division is excluded by the district court, the new district or enlargement of an existing district shall be ordered by the director in accordance with section 42-3108, Idaho Code.

1947, ch. 152, § 1, p. 364.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” near the middle of the section refer to S.L. 1947, chapter 152, which is compiled as§§ 42-3201, 42-3202, 42-3203 to 42-3211, 42-3212 to 42-3218, 42-3219, and 42-3220 to 42-3227. The reference probably should be to “this chapter,” being chapter 32, title 42, Idaho Code.

CASE NOTES

Attack on Organization.

The district court’s order declaring appellant district organized was not subject to collateral attack but the invalidity of this organization could only be raised by the state in an action in quo warranto which would have to be brought or be commenced by the attorney general within 30 days after said decree declaring such district organized. Clemens v. Pinehurst Water Dist., 81 Idaho 213, 339 P.2d 665 (1959).

Cited

Dalton v. South Fork of Coeur d’Alene River Sewer Dist., 101 Idaho 833, 623 P.2d 141 (1980); Kootenai County Property Ass’n v. Kootenai County, 115 Idaho 676, 769 P.2d 553 (1989).

§ 42-3202. Definition of terms.

A water district is one to supply water for domestic, commercial, and/or industrial purposes by any available means, and for that purpose any such district shall have power to extend its water lines to the source of water supply.

A sewer district is one to provide for sewage disposal and for that purpose any such district shall have power to extend its sewer lines to an appropriate outlet.

A district may be created for a combination of water and sewer purposes, or either of said purposes. A district may be entirely within or entirely without, or partly within and partly without one (1) or more municipalities or counties, and the district may consist of noncontiguous tracts or parcels of property.

The word “board” as used in this chapter shall mean the board of directors of a district.

A “qualified elector” of a district, within the meaning of and entitled to vote under this chapter, unless otherwise specifically provided herein, is a person qualified to vote at general elections in this state, and who has been a bona fide resident of the district for at least thirty (30) days prior to any election in the district.

Wherever the term “publication” is used in this chapter and no manner specified therefor, it shall mean publication twice, the first time not less than twelve (12) days prior to the election and the second time not less than five (5) days prior to the election, as provided in section 34-1406, Idaho Code.

History.

1947, ch. 152, § 2, p. 364; am. 1955, ch. 63, § 1, p. 122; am. 1957, ch. 29, § 1, p. 40; am. 1974, ch. 101, § 1, p. 1202; am. 1975, ch. 189, § 1, p. 529; am. 1995, ch. 118, § 63, p. 417.

STATUTORY NOTES

The name of the existing district, date on which said district was formed and a general description of the district’s boundaries.
That the petition was initiated after a majority vote of the board of directors that it is in the best interest of the district to change its status to a recreational water and/or sewer district.
The criteria the district meets under section 42-3202A, Idaho Code, thereby qualifying it as a recreational water and/or sewer district.
A prayer for changing the status of the existing district to that of a recreational water and/or sewer district.

Upon filing of the petition, the court shall by order fix a time and place for hearing as provided in section 42-3206, Idaho Code. Upon the hearing of said petition any interested persons or corporations may appear before said court and make objections to the proposed status change. Further, if it then shall appear that the petition for a change in status has been signed and presented as hereinabove provided and the allegations of the petition are true, the court shall by order duly entered of record, grant the prayed for change of status of the existing district.

History.

I.C.,§ 42-3202C, as added by 1988, ch. 302, § 1, p. 958.

§ 42-3203. Jurisdiction to establish districts.

The district court sitting in and for any county in this state, or any judge thereof in vacation, is hereby vested with jurisdiction, power and authority to establish districts which may be entirely within or partly within and partly without the judicial district in which said court is located.

History.

1947, ch. 152, § 3, p. 364.

§ 42-3204. Petition — Contents — Amendments.

The organization of a district shall be initiated by a petition filed in the office of the clerk of the court vested with jurisdiction, in a county in which the major part of the real property in the proposed district is situated. The petition shall be signed by not less than ten per cent (10%) of the taxpayers of the district, who pay a general tax on real property owned by him or her within the district; provided, however, that no single tract or parcel of property containing five (5) acres or more may be included in any district organized under this act without the consent of the owner or owners thereof.

The petition shall set forth:

The name of the proposed district consisting of a chosen name preceding the words, “water district” or “sewer district,” or “water and sewer district.”
A general description of the improvements to be constructed or installed within and for the district.
The estimated cost of the proposed improvements.
A general description of the boundaries of the district or the territory to be included therein, with such certainty as to enable a property owner to determine whether or not his property is within the district.
A prayer for the organization of the district.

No petition with the requisite signatures shall be declared null and void on account of alleged defects, but the court may at any time permit the petition to be amended to conform to the facts by correcting any errors in the description of the territory, or in any other particular. Similar petitions or duplicate copies of the same petition for the organization of the same district may be filed and shall together be regarded as one petition. All such petitions filed prior to the hearing on the first petition filed, shall be considered by the court the same as though filed with the first petition placed on file.

History.

1947, ch. 152, § 4, p. 364.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” near the end of the first paragraph refer to S.L. 1947, chapter 152, which is compiled as§§ 42-3201, 42-3202, 42-3203 to 42-3211, 42-3212 to 42-3218, 42-3219, and 42-3220 to 42-3227. The reference probably should be to “this chapter,” being chapter 32, title 42, Idaho Code.

§ 42-3205. Bond of petitioners.

At the time of filing the petition or at any time subsequent thereto, and prior to the time of hearing on said petition a bond shall be filed, with security approved by the court, sufficient to pay all expenses connected with the proceedings in case the organization of the district be not effected. If at any time during the proceeding the court shall be satisfied that the bond first executed is insufficient in amount, it may require the execution of an additional bond within a time to be fixed, not less than ten (10) days distant, and upon failure of the petitioner to execute the same, the petition shall be dismissed.

History.

1947, ch. 152, § 5, p. 364.

§ 42-3206. Notice of hearing on petition — Jurisdiction.

Immediately after the filing of such petition, the court wherein such petition is filed or a judge thereof in vacation, shall by order fix a place and time, not less than twenty (20) days nor more than forty (40) days after the petition is filed, for hearing thereon and thereupon the clerk of said court shall cause notice by publication to be made of the pendency of the petition and of the time and place of hearing thereon; the clerk of said court shall also forthwith cause a copy of said notice to be mailed by U.S. registered mail to the board of county commissioners of each of the several counties and to the governing body of each municipality having territory within the proposed district.

The district court in and for the county in which the petition for the organization of a district has been filed, shall thereafter for all purposes of this act, except as hereinafter otherwise provided, maintain and have original and exclusive jurisdiction, coextensive with the boundaries of the district, and of the real property proposed to be included in said district or affected by said district without regard to the usual limits of its jurisdiction.

No judge of such court wherein such petition is filed shall be disqualified to perform any duty imposed by this act by reason of ownership of property within any proposed district.

History.

1947, ch. 152, § 6, p. 364.

STATUTORY NOTES

Cross References.

Notice by mail,§ 60-109A.

Compiler’s Notes.

The words “this act” in the second and third paragraphs refer to S.L. 1947, chapter 152, which is compiled as§§ 42-3201, 42-3202, 42-3203 to 42-3211, 42-3212 to 42-3218, 42-3219, and 42-3220 to 42-3227. The reference probably should be to “this chapter,” being chapter 32, title 42, Idaho Code.

§ 42-3207. Hearings on petitions — Election for organization and directors.

On the day fixed for such hearing or at any adjournment thereof the court shall ascertain from the tax rolls of the county or counties in which the district is located or into which it extends, the total number of taxpayers within the proposed district, who pay a general tax on real property owned by him or her within the district.

If the court finds that no petition has been signed and presented in conformity with this chapter, or that the material facts are not as set forth in the petition filed, it shall dismiss said proceedings and adjudge the costs against the signers of the petition in such proportion as it shall deem just and equitable. No appeal or writ of error shall lie from an order dismissing said proceedings; but nothing herein shall be construed to prevent the filing of a subsequent petition or petitions for similar improvements or for a similar district, and the right so to renew such proceedings is hereby expressly granted and authorized.

Any time after the filing of the petition for the organization of a district and before the day fixed for the hearing thereon, the owner or owners of any real property within the proposed district may file a petition with the court stating reasons why said property should not be included therein, why his land or any part thereof will not be benefited by the proposed district, or should not be embraced in said district and made liable to taxation therefor, and praying that said property be excluded therefrom. Such petition shall be duly verified and shall describe the property sought to be excluded. The court shall conduct a hearing on said petition and shall hear all objections to the inclusion in the district of any lands described in said petition. In case any owner of real estate included in said proposed district shall satisfy the court that his real estate, or any part thereof, has been wrongfully included therein or will not be benefited thereby then the court shall exclude such real estate as will not be benefited.

Such election shall be held in conformity with the general election in this state, including chapter 14, title 34, Idaho Code, except that the court shall establish as many election precincts within such proposed district as are deemed necessary, and shall define the boundaries thereof, which precincts and boundaries may thereafter be changed by the county commissioners if the district is organized.

At any time after the filing of the petition herein referred to and before the day fixed for hearing, nominees for the board of directors of the district may be nominated by the filing of a petition designating the name or names of the nominee or nominees, signed by at least five (5) qualified electors of the district. If upon the hearing as herein provided the court shall order an election for the creation of the district, the court shall also ascertain the names of persons nominated by the board of directors, and shall order that the names of persons whom the court finds to have been properly nominated shall be listed upon a ballot submitted to the electors at such election. In the event the court makes its order providing for such election, it shall prescribe the form of the question and ballot relating to the creation of the district, and also the form of the ballot relating to the election of the directors; provided that all matters may be contained upon one (1) ballot to be submitted to the voters. At such election the voters shall vote for or against the organization of the district, and for five (5) qualified electors, who shall constitute the board of directors of the district, if organized, one (1) director to act until the first biennial election, two (2) until the second, and two (2) until the third biennial election.

The judges of election shall certify the returns of the election to the district court having jurisdiction. If a majority of the votes cast at said election are in favor of the organization, the district court shall declare the district organized and give it a corporate name by which, in all proceedings, it shall thereafter be known, and designated the first board of directors elected, and thereupon the district shall be a governmental subdivision of the state of Idaho and a body corporate with all the powers of a public or quasi-municipal corporation.

If an order be entered establishing the district, such order shall be deemed final and no appeal or writ of error shall lie therefrom, and the entry of such order shall finally and conclusively establish the regular organization of the said district against all persons except the state of Idaho, in an action in the nature of a writ of quo warranto, commenced by the attorney general within thirty (30) days after said decree declaring such district organized as herein provided, and not otherwise. The organization of said district shall not be directly or collaterally questioned in any suit, action or proceeding except as herein expressly authorized.

History.

1947, ch. 152, § 7, p. 364; am. 1955, ch. 63, § 2, p. 122; am. 1957, ch. 29, § 2, p. 40; 1967, ch. 186, § 1, p. 613; am. 1995, ch. 118, § 65, p. 417; am. 2010, ch. 185, § 14, p. 382.

STATUTORY NOTES

Amendments.

The 2010 amendment, by ch. 185, in the fourth paragraph, deleted “at an election to be held, subject to the provisions of section 34-106, Idaho Code, for that purpose, and such order shall appoint (3) qualified electors of the district as judges of said election. The clerk of the court having jurisdiction shall give published notice of the time and place of an election to be held in the district in accordance with the provisions of section 34-106, Idaho Code” from the end; and in the fifth paragraph, substituted “shall be held in conformity with the general election” for “shall be held and conducted in the same manner as general elections” and substituted “changed by the county commissioners if the district is organized” for “changed by the board of directors of such district if so organized. Such court, and thereafter the board of directors of such district, if so organized, shall appoint (3) judges of election, one (1) of whom shall act as clerk for such election precinct” at the end.

Effective Dates.

Section 17 of S.L. 2010, ch. 185 provided that the act should take effect on and after January 1, 2011.

CASE NOTES

Constitutionality.

The provision of this section prior to 1957 amendment requiring residents and qualified electors to be taxpayers before voting at an organizational election was an unconstitutional requirement inasmuch as no qualifications are ever to be required for any person to vote or hold office except in school elections or in irrigation district elections. Clemens v. Pinehurst Water Dist., 81 Idaho 213, 339 P.2d 665 (1959).

The unconstitutional portion of this section, prior to 1957 amendment, relative to taxpayer qualification of electors at an organizational election of a water and sewer district did not invalidate the entire water and sewer district act, chapter 32, title 42, Idaho Code, but such objectionable provision of the statute was separable from said act. Clemens v. Pinehurst Water Dist., 81 Idaho 213, 339 P.2d 665 (1959).

§ 42-3208. Qualification of members of board.

Whenever a district has been declared duly organized, the members of the board shall qualify by filing with the clerk of court their oaths of office, and corporate surety bonds at the expense of the district in an amount not to exceed $1,000 each, the form thereof to be fixed and approved by the court, conditioned for the faithful performance of their duties as directors.

History.

1947, ch. 152, § 8, p. 364.

§ 42-3209. Organization of board — Accounts of treasurer — Compensation of members — Annual audit — Removal of directors.

After taking oath and filing bonds, the board shall choose one (1) of its members as chairman of the board and president of the district, and shall elect a secretary and a treasurer of the board and of the district, who may or may not be members of the board. The secretary and the treasurer may be one person. Such board shall adopt a seal and the secretary shall keep, in a well-bound book, a record of all its proceedings, minutes of all meetings, certificates, contracts, bonds given by employees and all corporate acts which shall be open to inspection of all owners of real property in the district, as well as to all other interested parties.

The treasurer shall keep strict and accurate accounts of all money received by and disbursed for and on behalf of the district, in permanent records. He shall file with the clerk of the court, at the expense of the district, a corporate fidelity bond in an amount not less than five thousand dollars ($5,000), conditioned on the faithful performance of the duties of his office.

Each member of the board shall receive as compensation for his service a sum not in excess of one hundred dollars ($100) per meeting, payable monthly. No member of the board shall receive any compensation as an employee of the district or otherwise, other than that herein provided, and no member of the board shall be interested in any contract or transaction with the district except in his official representative capacity.

It shall be the duty of the board of directors to cause an audit to be made of all financial affairs of the district during each year ending November 30th as required in section 67-450B, Idaho Code.

The court having jurisdiction of the district shall have the power to remove directors for cause shown, on petition, notice and hearing.

History.

1947, ch. 152, § 9, p. 364; am. 1965, ch. 191, § 1, p. 399; am. 1977, ch. 7, § 1, p. 14; am. 1993, ch. 44, § 1, p. 116; am. 1993, ch. 387, § 13, p. 1417; am. 2003, ch. 36, § 1, p. 156.

STATUTORY NOTES

Amendments.

This section was amended by two 1993 acts which appear to be compatible and have been compiled together.

The 1993 amendment, by ch. 44, § 1, in the third paragraph substituted “fifty dollars ($50.00)” for “twenty-five dollars ($25.00)” preceding “per meeting,”.

Effective Dates.

The 1993 amendment, by ch. 387, § 13, near the end of the second paragraph added “five thousand dollars” following “in an amount not less than”; added parentheses around “$5,000”; in the next to last paragraph at the end substituted “as required in section 67-450B, Idaho Code” for “, which audit shall be made during the last month of each calendar year.”; and deleted the former last two sentences. Effective Dates.

Section 2 of S.L. 1965, ch. 191 declared an emergency. Approved March 23, 1965.

§ 42-3210. Meetings — Vacancies.

The board shall meet regularly once each month at a time and in a place to be designated by the board. Special meetings may be held as often as the needs of the district require, on notice to each member of the board. Three (3) members of the board shall constitute a quorum at any meeting. Any vacancy on the board shall be filled by the remaining members or member of the board, the appointee to act until the next biennial election when the vacancy shall be filled by election. If the board shall fail, neglect or refuse to fill any vacancy within thirty (30) days after the same occurs, the court having jurisdiction shall fill such vacancy. In the event the board has created director zones and is unable to appoint a board member from the zone vacated, the board may appoint a person-at-large who is an elector of the water and/or sewer district to serve as director of the zone where the vacancy occurred.

History.

1947, ch. 152, § 10, p. 364; am. 2016, ch. 278, § 2, p. 766.

STATUTORY NOTES

Amendments.

The 2016 amendment, by ch. 278, added the last sentence in the section.

§ 42-3211. Elections — Terms of office.

On the third Tuesday in May, in the first odd-numbered year after the organization of any district, and on the third Tuesday in May every second year thereafter an election shall be held, which shall be known as the biennial election of the district. Such election shall be held and conducted consistent with the provisions of chapter 14, title 34, Idaho Code.
In districts created under section 42-3202B, Idaho Code, biennial elections shall be held on the third Tuesday in May.
At the first biennial election in any district hereafter organized, and each sixth year thereafter, there shall be elected by the qualified electors of the district, one (1) member of the board to serve for a term of six (6) years; at the second biennial election and each sixth year thereafter, there shall be elected two (2) members of the board to serve for terms of six (6) years, and at the third biennial election, and each sixth year thereafter, there shall be elected two (2) members of the board to serve for terms of six (6) years.

In any election for director, if after the deadline for filing a declaration of intent as a write-in candidate, it appears that the number of qualified candidates who have been nominated is equal to the number of directors to be elected, it shall not be necessary for the candidates to stand for election, and the board of directors shall declare such candidates elected as directors, and the secretary of the district shall immediately make and deliver to such persons certificates of election signed by him and bearing the seal of the district.

History.

1947, ch. 152, § 11, p. 364; am. 1957, ch. 29, § 3, p. 40; am. 1980, ch. 257, § 1, p. 670; am. 1995, ch. 118, § 66, p. 417; am. 2009, ch. 341, § 100, p. 993; am. 2010, ch. 185, § 15, p. 382; am. 2011, ch. 11, § 24, p. 24.

STATUTORY NOTES

Amendments.

The 2009 amendment, by ch. 341, in subsection (1) twice substituted “third Tuesday in May” for “first Tuesday in February” and deleted “Except as provided in subsection (2), of this section” from the beginning; in subsection (2), substituted “third Tuesday in May” for “first Tuesday in August”; and in the second paragraph in subsection (3), substituted “county clerk shall conduct the election” for “board shall provide for holding such election” in the second sentence, deleted the former third sentence, which read; “The secretary of the district shall give notice of election by publication, and shall arrange such other details in connection therewith as the board may direct” and, in the present third sentence, substituted “declared as provided in chapter 14, title 34, Idaho Code” for “declared by the board.”

The 2010 amendment, by ch. 185, substituted “first odd-numbered year” for “second calendar year” in subsection (1).

Effective Dates.

The 2011 amendment, by ch. 11, added the last sentence in the introductory paragraph; and deleted the first former undesignated paragraph following subsection (3) which read: “Not later than 5:00 p.m. on the sixth Friday preceding the election, nominations may be filed with the secretary of the board and if a nominee does not withdraw his name before the first publication of the notice of election, his name shall be placed on the ballot. The county clerk shall conduct the election and shall appoint judges to conduct it. The returns of the election shall be certified to and shall be canvassed and declared as provided in chapter 14, title 34, Idaho Code. The candidate or candidates, according to the number of directors to be elected, receiving the most votes, shall be elected. Any new member of the board shall qualify in the same manner as members of the first board qualify.” Effective Dates.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Section 27 of S.L. 2011, ch. 11 declared an emergency retroactively to January 1, 2011. Approved February 23, 2011.

§ 42-3211a. Expiration of term.

Any person serving as a board member for a recreational water district, recreational sewer district or a recreational water and sewer district, whose term of office would, after the effective date of this act, expire in January shall continue to serve until the following July election, and all subsequently elected board members shall serve terms of office beginning and ending in July.

History.

1980, ch. 257, § 3, p. 670.

STATUTORY NOTES

Compiler’s Notes.

The phrase “the effective date of this act” near the middle of the section refers to the effective date of S.L. 1980, chapter 257, which was effective July 1, 1980.

§ 42-3211b. Decision to establish board director zones.

Subsequent to the creation of a water and/or sewer district and the election of the first board of directors, the water and/or sewer district board of directors may elect, by resolution, to divide the district into five (5) director zones, as nearly equal in area and parcels to be served as practicable, to be known as zones one, two, three, four and five. If the board of directors elects to create director zones, then it shall also, prior to the next district election, adopt a director election transition schedule for each zone, in accordance with the terms of office of the existing directors, which provides that at the end of the last then-currently serving director term, there will not be more than one (1) director per director zone.

In the event the board of directors establishes director zones, each water and/or sewer district director shall be elected on a districtwide basis.
Director zones may be revised or modified by the board of directors as conditions governing their establishment change.

History.

I.C.,§ 42-3211b, as added by 2016, ch. 278, § 3, p. 766.

STATUTORY NOTES

Prior Laws.

Former§ 42-3211b, When election not required, which comprised I.C.,§ 42-3211b, as added by S.L. 1986, ch. 83, § 1, p. 242, was repealed by S.L. 1995, ch. 118, § 112, effective July 1, 1995.

§ 42-3212. General powers of board.

For and on behalf of the district the board shall have the following powers:

To have perpetual existence;
To have and use a corporate seal;
To sue and be sued, and be a party to suits, actions and proceedings;
Except as otherwise provided in this chapter, to enter into contracts and agreements, cooperative and otherwise, affecting the affairs of the district, including contracts with the United States of America and any of its agencies or instrumentalities, and contracts with corporations, public or private, municipalities, or governmental subdivisions, and to cooperate with any one (1) or more of them in building, erecting or constructing works, canals, pipelines, sewage treatment plants, and other facilities within or without the district. Except in cases in which a district will receive aid from a governmental agency, procurement of goods or services shall be in accordance with the provisions of chapter 28, title 67, Idaho Code;
To borrow money and incur indebtedness and evidence the same by certificate, notes or debentures, and to issue bonds, in accordance with the provisions of this chapter;
To acquire, dispose of and encumber real and personal property, water, water rights, water and sewage systems and plants, and any interest therein, including leases and easements within or without said district;
To refund any bonded indebtedness of the district without an election; provided, however, that the obligations of the district shall not be increased by any refund of bonded indebtedness. Otherwise, the terms and conditions of refunding bonds shall be substantially the same as those of an original issue of bonds;
To have the management, control and supervision of all the business and affairs of the district, and the construction, installation, operation and maintenance of district improvements therein or therefor;
To hire and retain agents, employees, engineers and attorneys;
To have and exercise the power of eminent domain in the manner provided by law for the condemnation of private property for public use to take any property necessary to the exercise of the powers herein granted, both within and without the district;
To construct and maintain works and establish and maintain facilities across or along any public street or highway, and in, upon, or over any vacant public lands, which public lands are now, or may become, the property of the state of Idaho, and to construct works and establish and maintain facilities across any stream of water or watercourse, and to maintain access to facilities and works by the removal of snow from roads and lands; provided, however, that the district shall promptly restore any such street or highway to its former state of usefulness as nearly as may be, and shall not use the same in such manner as to completely or unnecessarily impair the usefulness thereof;
To fix and from time to time to increase or decrease water and sewer rates, tolls or charges for services or facilities furnished by the district, and to pledge such revenue for the payment of any indebtedness of the district. The board shall fix rates, tolls and charges and the time or times for the payment thereof. All such rates, tolls and charges not paid within thirty (30) days after the date fixed for the payment thereof shall become delinquent; the board shall certify all such delinquent rates, tolls and charges to the tax collector of the county by the district, not later than the first day of August and shall be, by said tax collector, placed upon the tax roll and collected in the same manner and subject to the same penalties as other district taxes; provided, however, that special assessments certified to the tax collector which are placed on property qualifying for a hardship exemption may be returned to the taxing district from which they originated if the special assessments are not paid within three (3) years. The date of priority of such lien shall be the date upon which such charge becomes delinquent. The board shall shut off or discontinue service for delinquencies in the payment of such rates, tolls or charges, or in the payment of taxes levied pursuant to this chapter, and prescribe and enforce rules and regulations for the connection with and the disconnection from properties of the facilities of the district. For health and sanitary purposes the board shall have the power to compel the owners of inhabited property within a sewer district to connect their property with the sewer system of such district, and upon a failure so to connect within sixty (60) days after written notice by the board so to do the board may cause such connection to be made and a lien to be filed against the property for the expense incurred in making such connection, provided, however, that no owner shall be compelled to connect his property with such system unless a service line is brought, by the district, to a point within two hundred (200) feet of his dwelling place;
To adopt and amend bylaws not in conflict with the constitution and laws of the state for carrying on the business, objects and affairs of the board and of the district;
To have and exercise all rights and powers necessary or incidental to or implied from the specific powers granted herein. Such specific powers shall not be considered as a limitation upon any power necessary or appropriate to carry out the purposes and intent of this chapter.

History.

1947, ch. 152, § 12, p. 364; am. 1961, ch. 135, § 1, p. 195; am. 1980, ch. 13, § 1, p. 26; am. 1991, ch. 41, § 1, p. 80; am. 2003, ch. 272, § 1, p. 726; am. 2005, ch. 213, § 11, p. 637.

STATUTORY NOTES

Cross References.

Willful and knowing avoidance of competitive bidding and procurement statutes,§ 59-1026.

CASE NOTES

Classification.

Where evidence showed that sewer district treated mobile home park owner in unreasonable and discriminatory manner by placing him in “unsewered” classification resulting in higher rate charges, district court was correct in reclassifying owner into preferred rate category and refunding previously collected excessive sewer charges. Dalton v. South Fork of Coeur d’Alene River Sewer Dist., 101 Idaho 833, 623 P.2d 141 (1980).

Fees.

This section is a legislative determination that sewer district boards shall assess the fees associated with services rendered to residents in their respective jurisdictions. This grant of authority to sewer district boards implicitly withdraws the same power from any geographically coextensive municipality such as a city or county, and there cannot exist two municipalities exercising the same or essentially similar powers within the same territory at the same time. City of Boise v. Bench Sewer Dist., 116 Idaho 25, 773 P.2d 642 (1989).

A city ordinance charging a connection fee to residents of a sewer district for hookups to the city sewer system was in excess of the city’s municipal jurisdiction and was in conflict with the statutory scheme governing sewer districts. City of Boise v. Bench Sewer Dist., 116 Idaho 25, 773 P.2d 642 (1989).

The city’s ordinance’s capitalization fee created an equitable buy-in structure, with revenues delegated for repairs, replacement and maintenance of system components proportionally used by those within the water district’s system, and the capitalization fee was reasonable and rationally related to the purpose of the city’s regulatory function of insuring clean and safe water for those users of the district’s system. The ordinance was adopted pursuant to a valid exercise of police power authority granted to the district by§ 42-4201 and this section. Potts Constr. Co. v. N. Kootenai Water Dist., 141 Idaho 678, 116 P.3d 8 (2005).

Cited

Southside Water & Sewer Dist. v. Murphy, 97 Idaho 881, 555 P.2d 1148 (1976); Payette Lakes Water & Sewer Dist. v. Hays, 103 Idaho 717, 653 P.2d 438 (1982).

§ 42-3213. Taxes.

In addition to the other means providing revenue for such districts as herein provided, the board shall have power and authority to levy and collect ad valorem taxes on and against all taxable property within the district.

History.

1947, ch. 152, § 13, p. 364.

§ 42-3214. Levy and collection of taxes.

To levy and collect taxes as herein provided, the board shall, in each year, determine the amount of money necessary to be raised by taxation, taking into consideration other sources of revenue of the district, and shall fix a rate of levy which, when levied upon every dollar of assessed valuation of taxable property within the district, and with other revenues will raise the amount required by the district annually, to supply funds for paying expenses of organization and the costs of construction, operating and maintaining the works and equipment of the district, and promptly to pay in full, when due, all interest on the principal of bonds and other obligations of the district, and in the event of accruing defaults or deficiencies, an additional levy may be made as provided in section 42-3215[, Idaho Code]. The board shall, on or before the first day of September of each year, certify to the board of county commissioners of each county within the district, or having a portion of its territory within the district, the rate so fixed with directions that at the time and in the manner required by law for levying taxes for county purposes, such board of county commissioners shall levy such tax upon the assessed valuation of all taxable property within the district, in addition to such other taxes as may be levied by such board of county commissioners at the rate so fixed and determined.

History.

1947, ch. 152, § 14, p. 364.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion at the end of the first sentence was added by the compiler to conform to the statutory citation style.

§ 42-3215. Levies to cover defaults and deficiencies.

The board in certifying annual levies as herein provided, shall take into account the maturing indebtedness for the ensuing year as provided in its contracts, maturing bonds and interest on bonds, and deficiencies and defaults of prior years, and shall make ample provision for the payment thereof. In case the moneys produced from such levies, together with other revenues of the district are not sufficient punctually to pay the annual instalments on its contracts or bonds, and interest thereon, and to pay defaults and deficiencies, then the board shall make such additional levies of taxes as may be necessary for such purposes, and notwithstanding any limitations, such taxes shall be made and continue to be levied until the indebtedness of the district shall be fully paid.

History.

1947, ch. 152, § 15, p. 364; am. 1980, ch. 136, § 3, p. 297; am. 1996, ch. 322, § 37, p. 1029.

§ 42-3216. Officers to levy and collect taxes.

It shall be the duty of the body having authority to levy taxes within each county, to levy the taxes provided in this act and it shall be the duty of all officials charged with the duty of collecting taxes to collect such taxes at the time and in the form and manner and with like interest and penalties as other taxes are collected and when collected to pay the same to the district ordering its levy and collection, and the payment of such collections shall be made monthly to the treasurer of the district and paid into the depository thereof to the credit of the district.

History.

1947, ch. 152, § 16, p. 364.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” near the beginning of the section refer to S.L. 1947, chapter 152, which is compiled as§§ 42-3201, 42-3202, 42-3203 to 42-3211, 42-3212 to 42-3218, 42-3219, and 42-3220 to 42-3227. The reference probably should be to “this chapter,” being chapter 32, title 42, Idaho Code.

§ 42-3217. Sinking fund.

Whenever any indebtedness has been incurred by a district, it shall be lawful for the board to levy taxes and collect revenue for the purpose of creating a sinking fund in such amount sufficient to meet the payments of principal and interest on such indebtedness as the same matures, and to constitute a sinking fund for the payment of the principal amount of the indebtedness within thirty (30) years from the time of contracting the indebtedness evidenced thereby and in accordance with the provisions made for the payment of the principal and interest of such indebtedness and also to constitute a sinking fund for payment of the principal thereof, and theretofore provided by resolution pursuant to section 42-3222, Idaho Code, and as required by the constitution and laws of the state of Idaho.

History.

1947, ch. 152, § 17, p. 364; am. 1980, ch. 136, § 4, p. 297; am. 1985, ch. 38, § 1, p. 80; am. 1996, ch. 322, § 38, p. 1029.

§ 42-3218. Inclusion of property petitioned — Hearing — Order — Annexation of property petitioned — Hearing — Order — Annexation of property by election — Election procedure.

The boundaries of any district organized under the provisions of this chapter may be changed in the manner herein prescribed, but the change of boundaries of the district shall not impair or affect its organization or its rights in or to property, or any of its rights or privileges whatsoever; nor shall it affect or impair or discharge any contract, obligation, lien or charge for or upon which it might be liable or chargeable had any such change of boundaries not been made.

The owners of real property may file with the board a petition, in writing, praying that such real property be included in the district. The petition shall describe the property owned by the petitioners, and such petition shall be deemed to give assent of the petitioners to the inclusion in said district of the property described in the petition, and shall be accompanied by a reasonable filing fee in an amount to be determined by the board. Such petition must be acknowledged in the same manner that conveyances of land are required to be acknowledged. The secretary of the board shall cause notice of filing of such petition to be given and published in the county in which the property is situated, which notice shall state the filing of such petition, names of petitioners, descriptions of lands mentioned and the prayer of such petitioners; giving notice to all persons interested to appear at the office of the board at the time named in said notice and show cause in writing, if any they have, why the petition should not be granted. The board shall at the time and place mentioned or at such time or times to which the hearing may be adjourned, proceed to hear the petition and all objections thereto, presented, in writing, by any person showing cause why said petition should not be granted. The failure of any person to show cause in writing shall be deemed as an assent on his part to the inclusion of such lands in the district as prayed in the petition. If the petition is granted, the board shall make an order to that effect and, upon approval of said order, the property shall be included in the district.
The territory adjoining or in close proximity to and in the same county with any district created under the provisions of this chapter may be annexed to the district by either of the following procedures: (1) A petition for annexation of real property described in such petition, which has been signed by the owners of not less than sixty percent (60%) of the area in land within the territory to be annexed, and which contains the separate property descriptions of such petitioners, and which is acknowledged in the same manner that conveyances of land are required to be acknowledged, accompanied by a reasonable filing fee in an amount to be determined by the board, may be filed with the board. Upon filing with the board of such a petition, the secretary of the board shall cause notice of filing of such petition to be given and published in the county in which the property is situated, which notice shall state the filing of such petition, names of petitioners, descriptions of lands mentioned and the prayer of such petitioners; giving notice to all persons interested, including the staff and employees of said district and anyone designated by said district, to appear at the office of the board at the time named in said notice and show cause in writing, if any they have, why the petition should not be granted. The board shall at the time and place mentioned or at such time or times to which the hearing may be adjourned, proceed to hear the petition and all objections thereto, presented, in writing, by any person showing cause why said petition shall not be granted. The failure of any person to show cause in writing shall be deemed as an assent to the annexation of such lands into the district as prayed in the petition. The board shall have full discretion to determine if the petition shall be granted. If the petition is granted, the board shall make an order to that effect. (2) Upon filing with the board of a petition signed by registered voters owning real property residing in the territory to be annexed, who constitute at least twenty percent (20%) of the taxpayers in such territory, praying for an election to determine if annexation shall be made of property designated in such petition, together with payment of a reasonable filing fee in an amount to be determined by the board, the board shall cause notice of filing of such petition to be given and published in the county in which the property is situated, which notice shall state the filing of such petition, names of petitioners, descriptions of lands to be annexed and the prayer of such petition; giving notice to all persons interested, including the staff and employees of said district and anyone designated by said district to appear at the office of the board at the time named in said notice and show cause in writing, if any they have, why the petition shall not be granted. The board shall at the time and place mentioned or at such time or times to which the hearing may be adjourned, proceed to hear the petition and all objections thereto, presented, in writing, by any person showing cause why said petition shall not be granted. The board shall have full discretion to determine if the petition shall be granted, and if such petition is granted, the board shall direct that an election be held, subject to the provisions of section 34-106, Idaho Code. The election shall be conducted in the same manner as general elections in this state, except that the board shall establish as many voting places within such territory proposed to be annexed as are by the board deemed necessary and shall define the boundaries of such voting places. The board shall appoint three (3) judges of election for each voting place, one (1) of whom shall be designated by the board to be the clerk of such election precinct. Each elector shall be registered as required by the general election laws and shall have resided within the area to be annexed for thirty (30) days. The secretary of the board of directors shall publish notice of the time and place of such election, in accordance with the provisions of section 34-1406, Idaho Code. The notice shall particularly describe the property to be annexed, the name of the district to which the territory is proposed to be annexed, and the terms and conditions prescribed by the board under which the property may be annexed. The notice shall designate the places in the territory where the election will be held, and shall require the voters to cast ballots which shall contain the words:
In all proceedings for inclusion or annexation hereunder, the board shall have the power to prescribe terms and conditions under which said property may be included in the district, including the condition that such property may only be annexed or included within the district if the property is also established as a water or sewer subdistrict of the district, pursuant to sections 42-3218A through 42-3218D, Idaho Code, and may be required to pay the district its pro rata share of construction costs theretofore incurred by the district pursuant to any bond issue theretofore made or otherwise; provided, however, that such terms and conditions shall be announced by the board at or before the hearing to be held pursuant to subparagraphs (a) and (b) above. Within ten (10) days of the announcement of the terms and conditions under which the property may be included the majority of the petitioners filing petitions under the provisions of subparagraphs (a) or (b) may withdraw their petitions, and no further proceedings shall thereafter be had by the board upon such petitions. (d) All public streets, roads, highways or alleys upon or within which is situated any part of the operative system or equipment of the district and all public streets, roads, highways and alleys which abut against or touch property annexed or to be annexed to the district, to the extent they abut against or touch such property and are not included in a different district, shall be deemed to be included in the district as a part of the annexation and shall be included in the legal description and map which the district must file in the offices of the county assessor, county recorder and the state tax commission as required by section 63-215, Idaho Code; provided, however, that upon application by the district to the state tax commission, if the commission finds after consultation with the county assessor and the county recorder that exemption from the requirements of this subparagraph (d) will not unduly burden state and local tax administration, the commission by order may exempt the district from the requirements of this subparagraph (d), but the district shall be required to comply with section 63-215, Idaho Code.

For annexation to .... District.

Against annexation to .... District.

The judges of the election shall make their return thereof to the board of directors of the district, which shall canvass the returns and render a statement of the results of the election on the records of the board. If the majority of the votes cast favor annexation, the board shall enter an order annexing the property described in the notice of election and the territory shall thereupon become annexed to the district and shall thenceforth be a part of the district.

History.

1947, ch. 152, § 18, p. 364; am. 1957, ch. 29, § 4, p. 40; am. 1969, ch. 274, § 1, p. 816; am. 1973, ch. 110, § 1, p. 196; am. 1975, ch. 28, § 1, p. 43; am. 1988, ch. 215, § 2, p. 405; am. 1995, ch. 118, § 67, p. 417; am. 1996, ch. 322, § 39, p. 1029; am. 2006, ch. 167, § 1, p. 515.

STATUTORY NOTES

Amendments.

The 2006 amendment, by ch. 167, substituted “and, upon approval of said order, the” for “and file the same with the clerk of the district court together with a copy of the petition and proof of publication certified by the secretary of the board. The clerk of the district court shall present the same to the court and upon order of the court the” near the end of subsection (a); in subsection (b), deleted “and file the same with the clerk of the district court together with a copy of the petition and proof of publication certified by the secretary of the board. The clerk of the district court shall present the same to the court and upon order of the court the property shall be included in the district” preceding “(2)”; and deleted “upon the filing of a copy thereof with the clerk of the district court, and upon order of the court,” preceding “the territory” in the fourth paragraph in subsection (b).

Effective Dates.

Section 2 of S.L. 1969, ch. 274 declared an emergency. Approved March 27, 1969.

I.C.,§ 42-3219A, as added by 1967, ch. 242, § 1, p. 705.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion in the first sentence in the first paragraph was added by the compiler to conform to the statutory citation style.

The bracketed word “designated” near the middle of the first paragraph was inserted by the compiler to correct the enacting legislation.

Effective Dates.

Section 2 of S.L. 1967, ch. 242 declared an emergency. Approved March 29, 1967.

§ 42-3219B. Exclusion and removal of lands following rejection twice by electorate of certain proposals for creation of indebtedness — Alternative procedure.

The board of directors of the district may, upon rejection by the district electorate of substantially the same proposal in two (2) separate elections (whether held prior to or after enactment of this section) for the creation of indebtedness for the purpose of acquisition, construction, installation or completion of any works or other improvement or facilities or the making of any contract to carry out the purposes of the district, petition the district court of the judicial district in which the majority of the property subject of the petition is located for exclusion and removal of lands from such water and sewer district. Such petition shall include a general description of the boundaries of the area to be excluded from the district with such certainty as to enable a property owner to determine whether or not his property is within the area to be excluded and shall be verified. The board of directors of the district, as petitioners, shall cause notice of filing of such petition to be published in a newspaper of general circulation in the county in which said property, or the major portion thereof is located, once a week for three (3) consecutive weeks. Such notice shall state the date of filing of such petition, shall include a description of the boundaries of the area to be excluded from the district with such certainty as to enable a property owner to determine whether or not his property is within the area to be excluded, and shall notify all persons interested to appear at the designated court at the time stated in said notice, showing cause in writing, if any they have, why said petition should not be granted. At any time before the expiration of the time of publication, any person may file his objection to said petition. At the time and place designated in the notice, or at the time or times at which the hearing of said petition may be adjourned, the court shall proceed to hear the petition and all objections thereto presented in writing by any person showing cause as aforesaid.

The court shall grant such petition upon finding that said proposals for the creation of indebtedness were twice rejected by the electors of the whole district, and upon the finding that said area so designated by the petition for exclusion and removal forms a contiguous area and either has no need for water or sewage disposal services or reasonably constitutes a separate area for purposes of water and sewage disposal services; or is of such location and character that water or sewage disposal services cannot be furnished to it by such water and sewer district at reasonable cost and that the withdrawal of such area will be conducive to the general welfare of the balance of the district.

The granting of such petition by the court and such exclusion of said property from the district shall not relieve such property from paying any bond indebtedness of the district existing at the time of said exclusion order against any such property so excluded, nor shall the granting of such petition and exclusion of such property relieve such property of any levy for the support of said district for the year in which it is removed. The procedure for the exclusion and removal of lands from a water and sewer district as provided in this section shall be an alternative to the procedures provided in sections 42-3219 and 42-3219A, Idaho Code.

History.

I.C.,§ 42-3219B, as added by 1971, ch. 60, § 1, p. 35.

STATUTORY NOTES

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 2 of S.L. 1971, ch. 60 declared an emergency. Approved March 4, 1971.

§ 42-3220. Liability of property included or excluded.

All real property included within, or excluded from, a district shall thereafter be subject to the levy of taxes for the payment of any indebtedness of the district outstanding at the time of inclusion or exclusion.

History.

1947, ch. 152, § 20, p. 364.

§ 42-3221. Issuance of negotiable coupon bonds — Form and terms.

To carry out the purposes of this act, and to pay the necessary and ordinary expenses of the district, the board is hereby authorized to issue negotiable coupon bonds of the district. Bonds shall bear interest, payable semi-annually, and shall be due and payable serially, either annually or semi-annually, commencing not later than three (3) years and extending not more than thirty (30) years from date. The form and terms of said bonds, including provisions for their payment and redemption, shall be determined by the board. If the board so determines, such bonds may be redeemable prior to maturity upon payment of a premium, not exceeding three per centum (3%) of the principal thereof. Said bonds shall be executed in the name of and on behalf of the district and signed by the chairman of the board with the seal of the district affixed thereto and attested by the secretary of the board. Said bonds shall be in such denominations as the board shall determine and the bonds and coupons thereto attached shall be payable to bearer. Interest coupons shall bear the original or facsimile signature of the chairman of the board.

History.

1947, ch. 152, § 21, p. 364; am. 1955, ch. 63, § 3, p. 122; 1965, ch. 140, § 1, p. 274; am. 1970, ch. 133, § 7, p. 309.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” in the first sentence refer to S.L. 1947, chapter 152, which is compiled as§§ 42-3201, 42-3202, 42-3203 to 42-3211, 42-3212 to 42-3218, 42-3219, and 42-3220 to 42-3227. The reference probably should be to “this chapter,” being chapter 32, title 42, Idaho Code.

Effective Dates.

Section 4 of S.L. 1955, ch. 63 declared an emergency. Approved February 25, 1955.

Section 2 of S.L. 1965, ch. 140 declared an emergency. Approved March 13, 1965.

§ 42-3222. Indebtedness of district — Submission of proposition to electorate.

Whenever any board shall, by resolution, determine that the interest of said district and the public interest or necessity demand the acquisition, construction, installation or completion of any works or other improvements or facilities, or the making of any contract with the United States or other persons or corporations, public or private, municipalities, or governmental subdivisions, to carry out the objects or purposes of said district, requiring the creation of an indebtedness that will exceed the income and revenue provided for the year, said board shall order the submission of the proposition of issuing such obligations or bonds, or creating other indebtedness to the qualified electors of the district at an election held, subject to the provisions of section 34-106, Idaho Code, for that purpose. The declaration of public interest or necessity herein required and the provision for the holding of such election may be included within one and the same resolution, which resolution, in addition to such declaration of public interest or necessity, shall recite the objects and purposes for which the indebtedness is proposed to be incurred, the estimated cost of the works or improvements, as the case may be, the amount of principal of the indebtedness to be incurred therefor, and the maximum rate of interest to be paid on such indebtedness. Such resolution shall also fix the date upon which such election shall be held and the manner of holding the same and the method of voting for or against the incurring of the proposed indebtedness. Such resolution shall also fix the compensation to be paid the officers of the election and shall designate the polling place or places and shall appoint, for each polling place from the electors of the district, the officers of such election consisting of three (3) judges, one (1) of whom shall act as clerk.

History.

1947, ch. 152, § 22, p. 364; am. 1957, ch. 29, § 5, p. 40; am. 1971, ch. 25, § 6, p. 61; am. 1992, ch. 151, § 1, p. 457; am. 1995, ch. 118, § 68, p. 417.

STATUTORY NOTES

Effective Dates.

Section 6 of S.L. 1957, ch. 29 declared an emergency. Approved February 11, 1957.

Section 9 of S.L. 1971, ch. 6, declared an emergency. Approved February 16, 1971.

CASE NOTES

Election Requirement.

This section required water and sewer districts to submit to voters only proposed obligations that the district would incur; local improvement bonds that would be paid back by special assessment were not subject to election requirement. The water and sewer district’s ordinance to form a local improvement district did not violate the statute and its validity could not be challenged. Mann v. Granite Reeder Water & Sewer Dist., 143 Idaho 248, 141 P.3d 1117 (2006).

§ 42-3223. Notice of election.

The board shall prescribe the form of the notice of election, and direct the publication of the same in accordance with the provisions of sections 34-1405 and 34-1406, Idaho Code.

History.

1947, ch. 152, § 23, p. 364; am. 1995, ch. 118, § 69, p. 417.

STATUTORY NOTES

Cross References.

Notice by mail,§ 60-109A.

§ 42-3224. Conduct of election — Canvass of returns.

The election board or boards shall conduct the election in the manner prescribed by law for the holding of general elections, including chapter 14, title 34, Idaho Code, and shall make their returns to the secretary of the district, provided that precincts shall be as provided in section 42-3207, Idaho Code. At any regular or special meeting of the board held within ten (10) days following the date of such election, the returns thereof shall be canvassed and the results thereof declared.

History.

1947, ch. 152, § 24, p. 364; am. 1967, ch. 186, § 2, p. 613; am. 1995, ch. 118, § 70, p. 417.

STATUTORY NOTES

Effective Dates.

Section 3 of S.L. 1967, ch. 186 declared an emergency. Approved March 22, 1967.

§ 42-3225. Effect of election — Subsequent elections.

In the event that it shall appear from said returns that two-thirds (2/3) of said qualified electors who are taxpayers of the district who shall have voted on any proposition submitted hereunder at such election voted in favor of such proposition, the district shall thereupon be authorized to incur such indebtedness or obligations, enter into such contract or issue and sell such bonds of the district, as the case may be, all for the purpose or purposes and object or objects provided for in the proposition submitted hereunder and in the resolution therefor, and in the amount so provided and at a rate of interest not exceeding the rate of interest recited in such resolution. Submission of the proposition of incurring such obligation or bonded or other indebtedness at such an election shall not prevent or prohibit submission of the same or other propositions at subsequent election or elections called for such purpose.

History.

1947, ch. 152, § 25, p. 364.

§ 42-3226. Correction of faulty notices.

In any and every case where a notice is provided for in this act, if the court finds for any reason that due notice was not given, the court shall not thereby lose jurisdiction, and the proceeding in question shall not thereby be void or be abated, but the court shall in that case order due notice to be given, and shall continue the hearing until such time as notice shall be properly given, and thereupon shall proceed as though notice has [had] been properly given in the first instance.

History.

1947, ch. 152, § 26, p. 364.

STATUTORY NOTES

Cross References.

Notice by mail,§ 60-109A.

Compiler’s Notes.

The bracketed word “had” near the end of the section was inserted by the compiler to correct the enacting legislation.

§ 42-3227. Separability.

If it should be judicially determined that any part of this act is invalid or unenforcible [unenforceable], such determination shall not affect the remaining parts, it being the intention to make this act and all its parts severable.

History.

1947, ch. 152, § 27, p. 364.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion in this section was added by the compiler to correct the enacting legislation.

The words “this act” twice in this section refer to S.L. 1947, chapter 152, which is compiled as§§ 42-3201, 42-3202, 42-3203 to 42-3211, 42-3212 to 42-3218, 42-3219, and 42-3220 to 42-3227. The reference probably should be to “this chapter,” being chapter 32, title 42, Idaho Code.

CASE NOTES

In General.

The fact that§ 42-3207, prior to the 1957 amendment, required taxpayer qualification of organizational electors and was unconstitutional was held in view of this section not to void the entire water and sewer district act inasmuch as it was clearly apparent the legislature intended that the act be severable. Clemens v. Pinehurst Water Dist., 81 Idaho 213, 339 P.2d 665 (1959).

§ 42-3228. Budget and hearing.

A board shall adopt a budget and shall cause a public hearing to be held upon such budget, prior to certifying a tax levy to the board of county commissioners of each county within the district, or having a portion of its territory within the district.

History.

I.C.,§ 42-3228, as added by 1973, ch. 84, § 1, p. 134.

§ 42-3229. Notice of hearing.

Notice of the budget hearing meeting shall be posted at least ten (10) full days prior to the date of said meeting in at least one (1) conspicuous place in each water and sewer district to be determined by the board; a copy of such notice shall also be published in a daily or weekly newspaper published within such water and sewer district, in one (1) issue thereof, during such ten (10) day period. The place, hour and day of such hearing shall be specified in said notice, as well as the place where such budget may be examined prior to such hearing. A full and complete copy of such proposed budget shall be published with and as a part of the publication of such notice of hearing.

History.

I.C.,§ 42-3229, as added by 1973, ch. 84, § 2, p. 134.

§ 42-3230. Public inspection of budget — Time and place.

Such budget shall be available for public inspection from and after the date of the posting of notices of hearing as in this act provided, at such place and during such business hours as the board may direct.

History.

I.C.,§ 42-3230, as added by 1973, ch. 84, § 3, p. 134.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” refer to S.L. 1973, chapter 84, which is compiled as§§ 42-3228 to 42-3231.

§ 42-3231. Quorum of board at hearing.

A quorum of the board shall attend such hearing and explain the proposed budget and hear any and all objections thereto.

History.

I.C.,§ 42-3231, as added by 1973, ch. 84, § 4, p. 134.

§ 42-3232. Validation of acts taken pursuant to this chapter.

All acts and proceedings heretofore taken pursuant to chapter 32, title 42, Idaho Code, for the organization of the district, the elections incidental thereto, the authorization, issuance, and sale of bonds of any such district, are hereby confirmed, validated and declared legally effective, including all acts and proceedings of any person, public officer, board or agency heretofore done or taken upon the question of the authorization, issuance, sale or exchange of such bonds authorized to be issued under such statutes, notwithstanding any lack of power, authority or otherwise, and notwithstanding any defects and irregularities in the creation of such public body, including all election procedures incidental thereto, and in such public securities, acts and proceedings, and in such authorization, execution, sale, issuance and payment.
The provisions of this section shall not operate to confirm, validate or legalize any action or proceedings [proceeding], the legality of which is being contested or inquired into [in] any legal proceeding now pending and undetermined and shall not operate to confirm, validate or legalize any action or proceedings [proceeding] which has heretofore been determined in any legal proceeding to be illegal, void or ineffective.
Any action or proceeding contesting the validity of any action or proceeding referred to in subsection (1) of this section shall be brought within thirty (30) days from the effective date of this act.
This act shall operate to supply such legislative authority as may be necessary to validate any public securities heretofore issued and any such acts and proceedings heretofore taken which the legislature could have supplied or provided for in the law under which such public securities were issued and such acts or proceedings were taken.

History.

I.C.,§ 42-3232, as added by 1979, ch. 272, § 3, p. 706.

STATUTORY NOTES

Compiler’s Notes.

The bracketed words “proceeding” and “in” in subsection (2) were inserted by the compiler to correct the enacting legislation.

The phrase “the effective date of this act” at the end of subsection (3) refers to the effective date of S.L. 1979, chapter 272, which was effective March 30, 1979.

Effective Dates.

Section 4 of S.L. 1979, ch. 272 declared an emergency. Approved March 30, 1979.

§ 42-3233. Merger authorized.

Two (2) or more water and/or sewer districts may vote to merge upon such terms as the districts may agree. In order to bring the matter to a vote, each board of directors, by majority vote, must independently vote to call an election for a vote to merge.

History.

I.C.,§ 42-3233, as added by 1982, ch. 88, § 1, p. 163.

STATUTORY NOTES

Cross References.

Annexation by district,§ 42-3218.

§ 42-3234. Majority vote required.

If all boards of directors of districts proposing to merge call for the election, each district shall independently hold an election, subject to the provisions of section 34-106, Idaho Code, and if more than a majority of those voting in each election favor the merger, the merger shall occur.

History.

I.C.,§ 42-3234, as added by 1982, ch. 88, § 1, p. 163; am. 1995, ch. 118, § 71, p. 417.

§ 42-3235. Voting procedure.

Qualifications for and methods of voting, conduct of the election and canvass of the returns shall be the same as provided for the election of a director.

History.

I.C.,§ 42-3235, as added by 1982, ch. 88, § 1, p. 163.

STATUTORY NOTES

Cross References.

Election of directors,§ 42-3211.

§ 42-3236. Ballot.

Each ballot shall have attached to it a summary of the terms of the merger, and the ballot issue shall read:

Shall ..................... and ..................... sewer and/or water districts merge into one sewer and/or water district to be known as ..................... on the summary of terms outlined.

YES NO

(PLACE AN “X” IN THE BOX REFLECTING YOUR CHOICE.)

History.

I.C.,§ 42-3236, as added by 1982, ch. 88, § 1, p. 163.

STATUTORY NOTES

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

§ 42-3237. Court order declaring merger.

In the event all districts voting on the issue pass the same, each board shall certify the results of the election to the district court in which most of the territory of the merged district will be. Upon satisfying itself that the election proceedings were proper in each district, the court shall enter an order creating the merged district under the terms presented to the voters. The court shall also select five (5) directors for the newly merged district from among the directors of the constituent districts recommended for such positions and shall set their terms of office.

History.

I.C.,§ 42-3237, as added by 1982, ch. 88, § 1, p. 163.

§ 42-3238. Private community sewer system — Properties exempt from other taxation.

Notwithstanding any other provision of law, no water district, sewer district or water and sewer district shall levy or collect any tax, any fee or any other charge of any kind related in any way to the collection or treatment of sewage by such district against any property located in such district which property is served by a private community sewer system. Said properties shall be exempt from any such tax, fee or charge. A “private community sewer system” means a system which collects and processes sewage for ten (10) or more residences, commercial or industrial facilities. The exemption provided in this section shall not apply to residences, commercial or industrial facilities served by an individual septic system. Nothing contained herein shall prohibit a charge for the delivery or furnishing of water by such district.

History.

I.C.,§ 42-3238, as added by 1991, ch. 263, § 1, p. 652.

§ 42-3239. Dissolution of a district upon transfer of assets to municipality.

A water, sewer, or combined water and sewer district may transfer to a municipality the assets of the district and dissolve upon a determination that each of the following conditions exists:
1. The municipality is capable of providing all the essential functions of the district;
2. The municipality has agreed to assume and perform the essential functions of the district;
3. The municipality either has or is acquiring sufficient assets, infrastructure, and other resources to perform the essential operations of the district;
4. Provisions have been made for the retirement, payment or assumption of any debt, bonds, or other liabilities and obligations of the district;
5. Provisions have been made for the liquidation and disbursement of district assets and infrastructure not intended to be transferred to the municipality; and
6. Notice of the proposed transfer has been published once a week for two (2) consecutive weeks prior to the hearing in a newspaper of general circulation in the district, including information on the petition for an election on the proposed transfer; and
7. An election has been held, if required pursuant to subsection (3) of this section, and the transfer has been approved by a majority of the qualified electors of the district voting on the issue.
Prior to passage of a resolution making the required determination, the district board shall hold a hearing to receive public testimony on the proposed transfer. The public hearing shall be preceded by a notice published once a week for two (2) consecutive weeks preceding the hearing, in a newspaper of general circulation in the district. The notice shall state the date, time and location of the hearing and that the purpose of the hearing is to receive public testimony on the proposed transfer and the method for a petition of qualified electors of the district to be submitted requesting an election to approve the proposed transfer.
After the hearing, the district board may submit the proposed transfer to the qualified electors of the district, or shall take the matter under advisement for a period of thirty (30) days after the hearing. An election shall be held if, prior to the expiration of the thirty (30) day period, a petition signed by not less than ten percent (10%) of the qualified electors of the district is submitted requesting an election on the proposed transfer. If at the end of the thirty (30) day period no petition has been submitted with the required number of signatures, the district board may proceed to adopt the resolution finding the above conditions exist and approving the transfer. An election held pursuant to the provisions of this subsection shall be conducted according to the provisions of section 34-106, Idaho Code, and the proposed transfer shall be approved by a majority of the qualified electors of the district voting on the issue in order for the district board to proceed to adopt a resolution approving the transfer.

History.

(4) In the event the district board and the municipality adopt resolutions finding the above conditions exist and approving the transfer, the district board shall file with the district court in which the district and municipality are located, a certified copy of the district resolution; certified results of the election approving the transfer, if applicable; a certified copy of the resolution of the municipality; and all other necessary documentation requested by the district court. Upon satisfying itself that the required conditions exist, the district court shall enter an order approving the transfer and assumption and establishing the date on which the district shall be dissolved; provided however, upon good cause shown, the court may extend the date upon which the district shall be dissolved. Such order shall be recorded with the county recorder and filed with the county assessor in the counties within which the district is located and filed with the state tax commission within thirty (30) days following the effective date of such dissolution. If an agreement exists between the district and municipality setting the requirements for postdissolution operations, the municipality shall operate the sewer and/or water system(s) in accordance with the agreement. History.

History.

1943, ch. 90, § 4, p. 180.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Compiler’s Notes.

The words “this act” at the end of the section refer to S.L. 1943, chapter 90, which is compiled as§§ 42-3301 to 42-3306.

For more on the Bear River commission, see http://bearrivercommission.org .

§ 42-3305. Request for reciprocal legislation and proper congressional resolution.

The governor of Idaho shall advise the governors of the states of Utah and Wyoming and the President of the United States of this enactment and request that reciprocal legislation be enacted by said states and that a proper resolution be adopted by the congress of the United States giving permission to the states of Idaho, Utah and Wyoming to enter into a compact or agreement respecting the control and use of the waters of Bear River and its tributaries.

History.

1943, ch. 90, § 5, p. 180.

STATUTORY NOTES

Compiler’s Notes.

For more on the Bear River commission, see http://bearrivercommission.org .

§ 42-3306. Tenure of office — Remuneration and expenses — Reduction of number.

The tenure of office of said commissioners shall be at the pleasure of the governor, and their remuneration and expenses shall be fixed by him; provided, however, that if the states of Utah and Wyoming shall appoint but one (1) commissioner to perform such services for said respective states, then and in that event, the governor of the state of Idaho may, in his discretion, reduce the number of commissioners of the state of Idaho from three (3) to one (1), who shall exercise all the rights and duties imposed by this act.

History.

1943, ch. 90, § 6, p. 180.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” at the end of the section refer to S.L. 1943, chapter 90, which is compiled as§§ 42-3301 to 42-3306.

For more on the Bear River commission, see http://bearrivercommission.org .

Effective Dates.

Section 7 of S.L. 1943, ch. 90 declared an emergency. Approved Feb. 27, 1943.

§ 42-3307. Compact with United States and Nevada authorized relative to water rights of Salmon Falls Creek.

Authority shall be and is hereby granted unto the governor of the state of Idaho to cause a compact to be entered into by the state of Idaho, with the state of Nevada and the United States, concerning the acquiring of water rights and the distribution of water within the respective states of Idaho and Nevada from Salmon Falls Creek, the North Fork of which heads in Idaho and flows through Nevada, and the South Fork of which heads in Nevada and joins with the North Fork in Nevada, and which thence flows into Idaho where it empties into the reservoir, situated in Townships Fourteen (14) and Fifteen (15) South, Ranges Fourteen (14) and Fifteen (15) E.B.M., Twin Falls County, State of Idaho, of the Salmon River Canal Company, Ltd., a corporation organized and existing under and by virtue of the laws of the state of Idaho.

History.

1943, ch. 44, § 1, p. 89.

§ 42-3308. Appointment of commissioner — Term — Remuneration — Duties.

For the purpose of carrying this act into effect, a commissioner for the state of Idaho shall be appointed by the governor, whose term of office shall be at the pleasure of the governor, and whose remuneration shall be fixed by the governor, and whose duties shall embrace, gathering and compiling data, attending meetings of the commission of which said commissioner shall be a member, carrying on negotiations for an agreement or compact between the state of Idaho, the state of Nevada, and the United States concerning the acquiring of water rights and the distribution of water within the states of Idaho and Nevada, and to generally perform such duties as shall be required by the governor of the state of Idaho in carrying out the purpose and intent of this act.

History.

1943, ch. 44, § 2, p. 89.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” near the middle of the section refer to S.L. 1943, chapter 44, which is compiled as§§ 42-3307 to 42-3312.

§ 42-3313. Commission to serve on joint commission relating to waters of Snake River.

The governor of the state of Idaho is hereby authorized to appoint a commission of ten (10) members, of which the director of the department of water resources shall be one (1), to represent the state of Idaho on a joint commission to be composed of commissioners representing the states of Wyoming and Idaho and a commissioner that may be appointed by the President of the United States, to be constituted by said states for the purpose of negotiating and entering into a compact or compacts, agreement or agreements, between the states, with the consent of congress, respecting the lawful diversion, distribution, and further utilization and disposition of the waters of the Snake River and all streams tributary thereto, with due regard to vested rights, mutual benefits and equitable apportionment, and fixing and determining a method of regulation, administration and control of the waters of said river; provided, however, that any compact or agreement so entered into on behalf of said states shall not be binding or obligatory upon either of said states or citizens thereof until and unless the same shall have been ratified and approved by the legislatures of both states and by the congress of the United States.

History.

1949, ch. 11, § 1, p. 11.

STATUTORY NOTES

Cross References.

Ratification of Snake River compact, see§ 42-3401.

Compiler’s Notes.

On June 3, 1948, Congress granted its consent to the states of Idaho and Wyoming to negotiate and enter into a compact for the division of the waters of the Snake River and its tributaries. 62 Stat., ch. 383, p. 294.

§ 42-3314. Legal, engineering and other assistance.

As soon as the commissioners of the state of Idaho shall have been appointed and shall have entered upon the performance of their duties, as herein provided, they shall be furnished such legal, engineering and other assistance as the governor and attorney general and director of the department of water resources and the board of examiners of the state of Idaho may deem advisable and necessary.

History.

1949, ch. 11, § 2, p. 11.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

State board of examiners,§ 67-2001 et seq.

§ 42-3318. Tenure of office — Remuneration and expenses — Reduction of number.

The tenure of office of said commissioners shall be at the pleasure of the governor, and their remuneration and expenses shall be fixed by him; provided, however, that if the state of Wyoming shall appoint but one (1) commissioner to perform such services for said state, then and in that event, the governor of the state of Idaho may, in his discretion, reduce the number of commissioners of the state of Idaho from ten (10) to one (1), who shall exercise all the rights and duties imposed in this act.

History.

1949, ch. 11, § 6, p. 11.

STATUTORY NOTES

Effective Dates.

Section 7 of S.L. 1949, ch. 11 declared an emergency. Approved January 28, 1949.

§ 42-3319. Commission to serve on joint commission relating to waters of Columbia River.

The governor of the state of Idaho is hereby authorized to appoint a commission of five (5) members, of which the director of the department of water resources shall be one (1), to represent the state of Idaho on a joint commission to be composed of commissioners representing the states of Washington, Oregon, Wyoming, Montana, Utah, Nevada and Idaho, and a commissioner that may be appointed by the president of the United States, to be constituted by said states for the purpose of negotiating and entering into a compact or compacts, agreement or agreements, among the states, or so many of them, not less than five (5), as shall agree thereto, with the consent of congress, respecting the lawful diversion, distribution, and further utilization and disposition of the waters of the Columbia River and all streams tributary thereto, including the Snake River, with due regard to vested rights, mutual benefits and equitable apportionment, and fixing and determining a method of regulation, administration and control of said river, and its tributaries; provided, however, that any compact or agreement so entered into on behalf of said states shall not be binding or obligatory upon any of said states or citizens thereof until and unless the same shall have been ratified and approved by the legislatures of at least five (5) of the states, including the states of Washington, Oregon, Montana and Idaho and by the congress of the United States.

History.

1951, ch. 61, § 1, p. 89.

STATUTORY NOTES

Compiler’s Notes.

§ 42-3320. Legal, engineering and other assistance.

As soon as the commissioners of the state of Idaho shall have been appointed and shall have entered upon the performance of their duties, as herein provided, they shall be furnished such legal, engineering and other assistance as the governor and attorney general and director of the department of water resources and the board of examiners of the state of Idaho might deem advisable and necessary.

History.

1951, ch. 61, § 2, p. 89.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

State board of examiners,§ 67-2001 et seq.

Compiler’s Notes.

§ 42-3321. Authority and duties of commission.

The said commissioners for the state of Idaho shall have full authority to make full investigations of the Columbia River and its tributaries, including the Snake River, and the drainage thereof, as may be necessary in order to determine the facts as to physical conditions obtaining upon said river, and its tributaries, and of the present and future needs of the state of Idaho and its citizens, to the proper use and benefits of the waters of said river, and its tributaries, and to perform such other duties as may be necessary to sufficiently determine such facts and to secure the necessary information in order that they may properly perform their duties as commissioners of the state of Idaho upon said joint commission.

History.

1951, ch. 61, § 3, p. 89.

§ 42-3322. Director of department of water resources and attorney general to render assistance.

It shall be the duty of the director of the department of water resources of the state of Idaho, and the attorney general of said state, or whoever they may appoint, to aid and assist the commissioners to be appointed for the state of Idaho, whenever necessary in order to facilitate their work in carrying out the intent and purposes of this act.

History.

1951, ch. 61, § 4, p. 89.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Compiler’s Notes.

The words “this act” at the end of the section refer to S.L. 1951, chapter 61, which is compiled as§§ 42-3319 to 42-3324.

§ 42-3323. Request for reciprocal legislation and congressional enabling legislation.

The governor of Idaho shall advise the governors of the states of Washington, Oregon, Montana, Utah, Wyoming and Nevada, and the president of the United States of this enactment and request that reciprocal legislation be enacted by said states and that a proper resolution or statute be adopted by the congress of the United States granting permission to the states of Washington, Oregon, Montana, Utah, Wyoming, Nevada and Idaho to enter into a compact or agreement respecting the control of the waters of the Columbia River and its tributaries.

History.

1951, ch. 61, § 5, p. 89.

§ 42-3324. Tenure of office — Remuneration and expenses.

The tenure of office of said commissioners shall be at the pleasure of the governor, and their remuneration and expenses shall be fixed by him.

History.

1951, ch. 61, § 6, p. 89.

Chapter 34 RATIFICATION OF INTERSTATE COMPACTS

Sec.

§ 42-3401. Snake River Compact ratified. — Ratification and approval is hereby given to the Snake River Compact as signed at the city of Cheyenne in the state of Wyoming on the 10th day of October, 1949, by the commissioners of the state of Idaho, acting pursuant to authority granted by sections 42-3313

42-3318[, Idaho Code], and the commissioners representing the state of Wyoming and approved by the representative of the United States, which compact is in full as follows:

SNAKE RIVER COMPACT

The states of Idaho and Wyoming, parties signatory to this compact, have resolved to conclude a compact as authorized by the Act of June 3, 1948 (62 Stat. 294), and after negotiations participated in by the following named state commissioners:

For Idaho

Mark R. Kulp, Boise

N. V. Sharp, Filer

Charles H. Welteroth, Jerome

Roy Marquess, Paul

Ival V. Goslin, Aberdeen

R. Willis Walker, Rexburg

Alex O. Coleman, St. Anthony

Leonard E. Graham, Rigby

Charles E. Anderson, Idaho Falls

A K. Van Orden, Blackfoot

For Wyoming

L. C. Bishop, Cheyenne

E. B. Hitchcock, Rock Springs

J. G. Imeson, Jackson

David P. Miller, Rock Springs

Carl Robinson, Afton

Ciril D. Cranney, Afton

Clifford P. Hansen, Jackson

Clifford S. Wilson, Driggs, Idaho

Lloyd Van Deburg, Jackson

and by R. J. Newell, representative of the United States of America, have agreed upon the following articles, to wit:

ARTICLE I

The major purposes of this compact are to provide for the most efficient use of the waters of the Snake River for multiple purposes; to provide for equitable division of such waters; to remove causes of present and future controversies; to promote interstate comity; to recognize that the most efficient utilization of such waters is required for the development of the drainage area of the Snake River and its tributaries in Wyoming and Idaho; and to promote joint action by the states and the United States in the development and use of such waters and the control of floods. B. Either state using, claiming or in any manner asserting any right to the use of the waters of the Snake River under the authority of either state shall be subject to the terms of this compact.

ARTICLE II

As used in this compact:

The term “Snake River” as distinguished from terms such as “Snake River and its tributaries” shall mean the Snake River from its headwaters to the Wyoming-Idaho boundary and all tributaries flowing into it within the boundaries of Wyoming, and the Salt River and all its tributaries.
The terms “Idaho” and “Wyoming” shall mean, respectively, the state of Idaho and the state of Wyoming, and, except as otherwise expressly provided, either of those terms or the term “state” or “states” used in relation to any right or obligation created or recognized by this compact shall include any person or entity of any nature whatsoever, including the United States.
The term “domestic use” shall mean the use of water by an individual, or by a family unit or household for drinking, cooking, laundering, sanitation and other personal comforts and necessities; and for the irrigation of a family garden or orchard not exceeding one-half acre in area.
The term “stock water use” shall mean the use of water for livestock and poultry.
The term “established Wyoming rights” shall mean Snake River water rights that have been validly established of record in Wyoming prior to July 1, 1949, for use in Wyoming.

ARTICLE III

The waters of the Snake River, exclusive of established Wyoming rights and other uses coming within the provisions of C of this article III, are hereby allocated to each state for storage or direct diversion as follows:
The amount of water subject to allocation as provided in A of this article III shall be determined on an annual water-year basis measured from October 1 of any year through September 30 of the succeeding year. The quantity of water to which the percentage factors in A of this article III shall be applied through a given date in any water year shall be, in acre-feet, equal to the algebraic sum of:
There are hereby excluded from the allocation made by this compact:

To Idaho ......................... 96 per cent

To Wyoming ..................... 4 per cent

subject to the following stipulations and conditions as to the four per cent allocated to Wyoming:

One-half may be used in Wyoming by direct diversion or by storage and subsequent diversion without provision being made for replacement storage space.
The other one-half may be diverted for direct use or stored for later diversion and use on the condition that there shall have been provided for reimbursement of Idaho users replacement storage space to the extent of one-third of the maximum annual diversion in acre-feet but not in excess, however, of one-third of half the total hereby allocated to Wyoming. Until this total replacement storage space has been made available, provision for meeting its proportionate part of this total shall be a prerequisite to the right to use water in Wyoming for any irrigation project authorized after June 30, 1949, for construction by any Federal agency.
The quantity of water, in acre-feet, stored in that water year and in storage on the given date for later diversion and use in Wyoming, under rights having a priority later than June 30, 1949.
One-third of the quantity of water, in acre-feet, excluding any storage water held over from prior years, diverted, under rights having a priority later than June 30, 1949, in that water year to the given date:

1. The quantity of water, in acre-feet, that has passed the Wyoming state line in the Snake River to the given date, determined on the basis of gaging stations to be established at such points as are agreed on under the provisions of B of article VI.

2. The change during that water year to the given date in quantity of water, in acre-feet, in any existing or future reservoirs in Wyoming which water is for use in Idaho.

from the Snake River for use that year on lands in Wyoming, and
from tributaries of the Salt River for use that year on lands in Idaho.
1. existing and future domestic and stock-water uses of water; provided, that the capacity of any reservoir for stock-water shall not exceed 20 acre-feet;
2. established Wyoming rights; and
3. all water rights for use in Idaho on any tributary of the Salt River heading in Idaho which were validly established under the laws of Idaho prior to July 1, 1949;

and all such uses and rights are hereby recognized.

ARTICLE IV

No water of the Snake River shall be diverted in Wyoming for use outside the drainage area of the Snake River except with the approval of Idaho; and no water of any tributary of the Salt River heading in Idaho shall be diverted in Idaho for use outside the drainage area of said tributary except with the approval of Wyoming.

ARTICLE V

Subject to the provisions of this compact, waters of the Snake River may be impounded and used for the generation of electrical power, but such impounding and use shall be subservient to the use of such waters for domestic, stock and irrigation purposes, and shall not interfere with or prevent their use for such preferred purposes. Water impounded or diverted in Wyoming exclusively for the generation of electrical power shall not be charged to the allocation set forth in article III of this compact.

ARTICLE VI

It shall be the duty of the two states to administer this compact through the official in each state who is now or may hereafter be charged with the administration of the public water supplies, and to collect and correlate through such officials the data necessary for the proper administration of the provisions of this compact. Such officials may, by unanimous action, adopt rules and regulations consistent with the provisions of this compact.
The states shall in conjunction with other responsible agencies cause to be established, maintained and operated such suitable water gaging stations as they find necessary to administer this compact. The United States Geological Survey, or whatever Federal agency may succeed to the functions and duties of that agency, so far as this compact is concerned, shall collaborate with officials of the states charged with the administration of this compact in the execution of the duty of such officials in the collection, correlation and publication of information necessary for its proper administration. C. In the case of failure of the administrative officials of the two states to agree on any matter necessary to the administration of this compact, the director of the United States Geological Survey, or whatever official succeeds to his duties, shall be asked to appoint a Federal representative to participate as to the matters in disagreement, and points of disagreement shall be decided by majority vote.

ARTICLE VII

Either state shall have the right to file applications for and receive permits to construct or participate in the construction and use of any dam, storage reservoir or diversion works in the other state for the purpose of conserving and regulating its allocated water and to perfect rights thereto. Either state exercising this right shall comply with the laws of the other state except as to any general requirement for legislative approval that may be applicable to the granting of rights by one state for the diversion or storage of water for use outside of that state.
Each claim or right hereafter initiated for storage or diversion of water in one state for use in the other state shall be filed in the office of the proper official of the state in which the water is to be stored or diverted, and a duplicate copy of the application, including a map showing the character and location of the proposed facilities and the lands to be irrigated, shall be filed in the office of the proper official of the state in which the water is to be used. If a portion or all the lands proposed to be reclaimed are located in a state other than the one in which the water is to be stored or diverted, then, before approval, said application shall be checked against the records of the office of the state in which the water is to be used, and a notation shall be placed thereon by the officer in charge of such records as to whether or not he approves the application. All indorsements shall be placed on both the original and duplicate copies of all such applications and maps filed to the end that the records in both states may be complete and identical.

ARTICLE VIII

Neither state shall deny the right of the United States, and subject to the conditions hereinafter contained, neither state shall deny the right of the other state to acquire rights to the use of water, or to construct or participate in the construction and use of diversion works and storage reservoirs with appurtenant works, canals and conduits in one state for the purpose of diverting, conveying, storing or regulating water in one state for use in the other state, when such use is within the allocation to such state made by this compact.
Either state shall have the right to acquire such property rights as are necessary to the use of water in conformity with this compact in the other state by donation, purchase or through the exercise of the power of eminent domain. Either state, upon the written request of the governor of the other state, for the benefit of whose water users property is to be acquired in the state to which such written request is made, shall proceed expeditiously to acquire the desired property either by purchase at a price satisfactory to the requesting state, or, if such purchase cannot be made, then through the exercise of its power of eminent domain and shall convey such property to the requesting state or such entity as may be designated by the requesting state; provided, that all costs of acquisition and expenses of every kind and nature whatsoever incurred in obtaining the requested property shall be paid by the requesting state at the time and in the manner prescribed by the state requested to acquire the property.
Should any facility be constructed in either state by and for the benefit of the other state, as above provided, the construction, repair, replacement, maintenance and operation of such facility shall be subject to the laws of the state in which the facility is located, except that, in the case of a reservoir constructed in either state for the benefit of the other state, the proper officials of the state in which the facility is located shall permit the storage and release of any water to which the other state is entitled under this compact.
Either state having property rights in the other state acquired as provided in B of this article VIII shall pay to the political subdivision of the state in which such property rights are located, each and every year during which such rights are held, a sum of money equivalent to the average annual amount of taxes assessed against those rights during the ten years preceding the acquisition of such rights in reimbursement for the loss of taxes to said political subdivision of the state, except that this provision shall not be applicable to interests in property rights the legal title to which is in the United States. Payments so made to a political subdivision shall be in lieu of any and all taxes by that subdivision on the property rights for which the payments are made.

ARTICLE IX

The provisions of this compact shall not apply to or interfere with the right or power of either state to regulate within its boundaries the appropriation, use and control of waters allocated to such state by this compact.

ARTICLE X

The failure of either state to use the waters, or any part thereof, the use of which is allocated to it under the terms of this compact, shall not constitute a relinquishment of the right to such use to the other state, nor shall it constitute a forfeiture or abandonment of the right to such use.

ARTICLE XI

In case any reservoir is constructed in one state where the water is to be used principally in the other state, sufficient water not to exceed five cubic feet per second shall be released at all times, if necessary for stockwater use and conservation of fish and wildlife.

ARTICLE XII

The provisions of this compact shall remain in full force and effect unless amended or terminated by action of the legislatures of both states and consented to and approved by the Congress of the United States in the same manner as this compact is required to be ratified and approved to become effective; provided, that in the event of such amendment or termination all rights theretofore established hereunder or recognized hereby shall continue to be recognized as valid by both states notwithstanding such amendment or termination.

ARTICLE XIII

Nothing in this compact shall be construed to limit or prevent either state from instituting or maintaining any action or proceeding, legal or equitable, for the protection of any right under this compact or the enforcement of any of its provisions.

ARTICLE XIV

Nothing in this compact shall be deemed:
Notwithstanding the provisions of A of this article, any beneficial uses hereafter made by the United States, or those acting by or under its authority, within either state, of the waters allocated by this compact shall be within the allocations hereinabove made for use in that state and shall be taken into account in determining the extent of use within that state.

To affect adversely any rights to the use of the waters of the Snake River, including its tributaries entering downstream from the Wyoming-Idaho state line, owned by or for Indians, Indian tribes and their reservations. The water required to satisfy these rights shall be charged against the allocation made to the state in which the Indians and their lands are located.
To impair or affect any rights or powers of the United States, its agencies or instrumentalities, in and to the use of the waters of the Snake River nor its capacity to acquire rights in and to the use of said waters.
To apply to any waters within the Yellowstone National Park or Grand Teton National Park.
To subject any property of the United States, its agencies or instrumentalities to taxation by either state or subdivisions thereof, nor to create an obligation on the part of the United States, its agents or instrumentalities, by reason of the acquisition, construction or operation of any property or works of whatsoever kind, to make any payments to any state or political subdivisions thereof, state agency, municipality or entity whatsoever in reimbursement for the loss of taxes.
To subject any works of the United States used in connection with the control or use of waters which are the subject of this compact to the laws of any state to an extent other than the extent to which these laws would apply without regard to this compact.

ARTICLE XV

This compact shall become operative when approved by legislative enactment by each of the states, and when consented to by the Congress of the United States.

ARTICLE XVI

Wyoming hereby relinquishes the right to the allocation of stored water in Grassy Lake Reservoir, as set forth in Wyoming’s reservoir permit No. 4631 Res. and evidenced by certificate No. R-1, page 318, and all claims predicated thereon.

In witness whereof the commissioners have signed this compact in quadruplicate, one of which shall be filed in the archives of the department of state of the United States of America and shall be deemed the authoritative original, and of which a duly certified copy shall be forwarded to the governor of each of the states.

Done at the city of Cheyenne, in the state of Wyoming, this 10th day of October, in the Year of Our Lord, One Thousand Nine Hundred and Forty-nine.

COMMISSIONERS FOR IDAHO COMMISSIONERS FOR WYOMING

/s/ Mark R. Kulp /s/ L. C. Bishop

Mark R. Kulp L. C. Bishop

/s/ N. V. Sharp /s/ E. B. Hitchcock

N. V. Sharp E. B. Hitchcock

/s/ Charles H. Welteroth /s/ J. G. Imeson

Charles H. Welteroth J. G. Imeson /s/ Roy Marquess /s/ David P. Miller

Roy Marquess David P. Miller

/s/ Ival V. Goslin /s/ Carl Robinson

Ival V. Goslin Carl Robinson

/s/ R. Willis Walker /s/ Ciril D. Cranney

R. Willis Walker Ciril D. Cranney

/s/ Alex O. Coleman /s/ Clifford P. Hansen

Alex O. Coleman Clifford P. Hansen

/s/ Leonard E. Graham /s/ Clifford S. Wilson

Leonard E. Graham Clifford S. Wilson

/s/ Chas. E. Anderson /s/ Lloyd Van Deburg

Charles E. Anderson Lloyd Van Deburg

/s/ A. K. Van Orden

K. Van Orden

I have participated in the negotiation of this compact and intend to report favorably thereon to the Congress of the United States.

/s/ R. J. Newell

R. J. Newell

Representative of

The United States of America

History.

1950 (E. S.), ch. 2, § 1, p. 4.

STATUTORY NOTES

Compiler’s Notes.

Section 2 of S.L. 1950 (E. S.), ch. 2, read: “The compact set forth in section 1 of this act shall not become operative unless and until it has been ratified and approved by appropriate legislative enactment by the state of Wyoming and has been consented to by the Congress of the United States. The governor of Idaho shall give notice of the ratification and approval of this compact by the Idaho legislature to the governor of Wyoming and to the President of the United States.”

Wyoming ratified the Snake River Compact by an act approved February 20, 1950 (Sess. Laws Wyoming, Spec. Sess. 1950, ch. 2). Congress consented to the compact by an act approved March 21, 1950, ch. 73, § 1, 64 Stat. 29.

The bracketed insertion in the first paragraph was added by the compiler to conform to the statutory citation style.

Effective Dates.

Section 3 of said act declared an emergency. Approved February 11, 1950.

§ 42-3402. Bear River Compact ratified.

Ratification and approval is hereby given to the Bear River Compact as signed at the city of Salt Lake City, in the state of Utah on the twenty-second day of December, 1978, by Clifford J. Skinner, J. Daniel Roberts and Don W. Gilbert, commissioners of the state of Idaho, acting pursuant to authority granted by article XIV of the ratified Bear River Compact appearing at section 42-3402, Idaho Code, and the commissioners representing the state of Utah, the state of Wyoming and approved by Wallace N. Jibson, Representative of the United States, which compact is in full as follows:

AMENDED BEAR RIVER COMPACT

The state of Idaho, the state of Utah, and the state of Wyoming, acting through their respective commissioners after negotiations participated in by a representative of the United States of America appointed by the President, have agreed to an amended Bear River Compact as follows:

ARTICLE I

The major purposes of this compact are to remove the causes of present and future controversy over the distribution and use of the waters of the Bear River; to provide for efficient use of water for multiple purposes; to permit additional development of the water resources of Bear River; to promote interstate comity; and to accomplish an equitable apportionment of the waters of the Bear River among the compacting states.
The physical and all other conditions peculiar to the Bear River constitute the basis for this compact. No general principle or precedent with respect to any other interstate stream is intended to be established.

“Bear River” means the Bear River and its tributaries from its source in the Uinta Mountains to its mouth in Great Salt Lake;
“Bear Lake” means Bear Lake and Mud Lake.[;]
“Upper Division” means the portion of Bear River from its source in the Uinta Mountains to and including Pixley Dam, a diversion dam in the Southeast Quarter of Section 25, Township 23 North, Range 120 West, Sixth Principal Meridian, Wyoming;
“Central Division” means the portion of the Bear River from Pixley Dam to and including Stewart Dam, a diversion dam in Section 34, Township 13 South, Range 44 East, Boise Base and Meridian, Idaho;
“Lower Division” means the portion of the Bear River between Stewart Dam and Great Salt Lake, including Bear Lake and its tributary drainage;
“Upper Utah Section Diversions” means the sum of all diversions in second-feet from the Bear River and the tributaries of the Bear River joining the Bear River upstream from the point where the Bear River crosses the Utah-Wyoming State line above Evanston, Wyoming; excluding the diversions by the Hilliard East Fork Canal, Lannon Canal, Lone Mountain Ditch, and Hilliard West Side Canal;
“Upper Wyoming Section Diversions” means the sum of all diversions in second-feet from the Bear River main stem from the point where the Bear River crosses the Utah-Wyoming State line above Evanston, Wyoming, to the point where the Bear River crosses the Wyoming-Utah State line east of Woodruff, Utah, and including the diversions by the Hilliard East Fork Canal, Lannon Canal, Lone Mountain Ditch, and Hilliard West Side Canal;
“Lower Utah Section Diversions” means the sum of all diversions in second-feet from the Bear River main stem from the point where the Bear River crosses the Wyoming-Utah State line east of Woodruff, Utah, to the point where the Bear River crosses the Utah-Wyoming State line northeast of Randolph, Utah;
“Lower Wyoming Section Diversions” means the sum of all diversions in second-feet from the Bear River main stem from the point where the Bear River crosses the Utah-Wyoming State line northeast of Randolph to and including the diversion at Pixley Dam;
“Commission” means the Bear River Commission, organized pursuant to Article III of this compact;
“Water user” means a person, corporation, or other entity having a right to divert water from the Bear River for beneficial use;
“Second-foot” means a flow of one cubic foot of water per second of time passing a given point;
“Acre-foot” means the quantity of water required to cover one acre to a depth of one foot, equivalent to 43,560 cubic feet;
“Biennium” means the 2-year period commencing on October 1 of the first odd numbered year after the effective date of this compact and each 2-year period thereafter;
“Water year” means the period beginning October 1 and ending September 30 of the following year;
“Direct flow” means all water flowing in a natural watercourse except water released from storage or imported from a source other than the Bear River watershed;
“Border Gaging Station” means the stream flow gaging station in Idaho on the Bear River above Thomas Fork near the Wyoming-Idaho boundary line in the Northeast Quarter of the Northeast Quarter of Section 15, Township 14 South, Range 46 East, Boise Base and Meridian, Idaho;
“Smiths Fork” means a Bear River tributary which rises in Lincoln County, Wyoming and flows in a general southwesterly direction to its confluence with Bear River near Cokeville, Wyoming;
“Grade Creek” means a Smiths Fork tributary which rises in Lincoln County, Wyoming and flows in a westerly direction and in its natural channel is tributary to Smiths Fork in Section 17, Township 25 North, Range 118 West, Sixth Principal Meridian, Wyoming;
“Pine Creek” means a Smiths Fork tributary which rises in Lincoln County, Wyoming, emerging from its mountain canyon in Section 34, Township 25 North, Range 118 West, Sixth Principal Meridian, Wyoming, and in its natural channel is tributary to Smiths Fork in Section 36, Township 25 North, Range 119 West, Sixth Principal Meridian, Wyoming;
“Bruner Creek” and “Pine Creek Springs” means Smiths Fork tributaries which rise in Lincoln County, Wyoming, in Sections 31 and 32, Township 25 North, Range 118 West, Sixth Principal Meridian, and in their natural channels are tributary to Smiths Fork in Section 36, Township 25 North, Range 119 West, Sixth Principal Meridian, Wyoming;
“Spring Creek” means a Smiths Fork tributary which rises in Lincoln County, Wyoming, in Sections 1 and 2, Township 24 North, Range 119 West, Sixth Principal Meridian, Wyoming, and flows in a general westerly direction to its confluence with Smiths Fork in Section 4, Township 24 North, Range 119 West, Sixth Principal Meridian, Wyoming;
“Sublette Creek” means the Bear River tributary which rises in Lincoln County, Wyoming and flows in a general westerly direction to its confluence with Bear River in Section 20, Township 24 North, Range 119 West, Sixth Principal Meridian, Wyoming;
“Hobble Creek” means the Smiths Fork tributary which rises in Lincoln County, Wyoming and flows in a general southwesterly direction to its confluence with Smiths Fork in Section 35, Township 28 North, Range 118 West, Sixth Principal Meridian, Wyoming;
“Hilliard East Fork Canal” means that irrigation canal which diverts water from the right bank of the East Fork of Bear River in Summit County, Utah, at a point West 1,310 feet and North 330 feet from the Southeast corner of Section 16, Township 2 North, Range 10 East, Salt Lake Base and Meridian, Utah, and runs in a northerly direction crossing the Utah-Wyoming State line into the Southwest Quarter of Section 21, Township 12 North, Range 119 West, Sixth Principal Meridian, Wyoming;
“Lannon Canal” means that irrigation canal which diverts water from the right bank of the Bear River in Summit County, Utah, East 1,480 feet from the West Quarter corner of Section 19, Township 3 North, Range 10 East, Salt Lake Base and Meridian, Utah, and runs in a northerly direction crossing the Utah-Wyoming State line into the South Half of Section 20, Township 12 North, Range 119 West, Sixth Principal Meridian, Wyoming;
“Lone Mountain Ditch” means that irrigation canal which diverts water from the right bank of the Bear River in Summit County, Utah, North 1,535 feet and East 1,120 feet from the West Quarter corner of Section 19, Township 3 North, Range 10 East, Salt Lake Base and Meridian, Utah, and runs in a northerly direction crossing the Utah-Wyoming State line into the South Half of Section 20, Township 12 North, Range 119 West, Sixth Principal Meridian, Wyoming;
“Hilliard West Side Canal” means that irrigation canal which diverts water from the right bank of the Bear River in Summit County, Utah, at a point North 2,190 feet and East 1,450 feet from the South Quarter corner of Section 13, Township 3 North, Range 9 East, Salt Lake Base and Meridian, Utah, and runs in a northerly direction crossing the Utah-Wyoming State line into the South Half of Section 20, Township 12 North, Range 119 West, Sixth Principal Meridian, Wyoming;
“Francis Lee Canal” means that irrigation canal which diverts water from the left bank of the Bear River in Uinta County, Wyoming, in the Northeast Quarter of Section 30, Township 18 North, Range 120 West, Sixth Principal Meridian, Wyoming, and runs in a westerly direction across the Wyoming-Utah State line into Section 16, Township 9 North, Range 8 East, Salt Lake Base and Meridian, Utah;
“Chapman Canal” means that irrigation canal which diverts water from the left bank of the Bear River in Uinta County, Wyoming, in the Northeast Quarter of Section 36, Township 16 North, Range 121 West, Sixth Principal Meridian, Wyoming, and runs in a northerly direction crossing over the low divide into the Saleratus drainage basin near the Southeast corner of Section 36, Township 17 North, Range 121 West, Sixth Principal Meridian, Wyoming and then in a general westerly direction crossing the Wyoming-Utah State line;
“Neponset Reservoir” means that reservoir located principally in Sections 34 and 35, Township 8 North, Range 7 East, Salt Lake Base and Meridian, Utah, having a capacity of 6,900 acre-feet.

ARTICLE III

There is hereby created an interstate administrative agency to be known as the “Bear River Commission” which is hereby constituted a legal entity and in such name shall exercise the powers hereinafter specified. The commission shall be composed of nine commissioners, three commissioners representing each signatory state, and if appointed by the President, one additional commissioner representing the United States of America who shall serve as chairman, without vote. Each commissioner, except the chairman, shall have one vote. The state commissioners shall be selected in accordance with state law. Six commissioners who shall include two commissioners from each state shall constitute a quorum. The vote of at least two thirds of the commissioners when a quorum is present shall be necessary for the action of the commission.
The compensation and expenses of each commissioner and each adviser shall be paid by the government which he represents. All expenses incurred by the commission in the administration of this compact, except those paid by the United States of America, shall be paid by the signatory states on an equal basis.
The commission shall have power to:
The commission shall:

Adopt by-laws, rules, and regulations not inconsistent with this compact;
Acquire, hold, convey or otherwise dispose of property;
Employ such persons and contract for such services as may be necessary to carry out its duties under this compact;
Sue and be sued as a legal entity in any court of record of a signatory state, and in any court of the United States having jurisdiction of such action;
Cooperate with state and federal agencies in matters relating to water pollution of interstate significance;
Perform all functions required of it by this compact and do all things necessary, proper or convenient in the performance of its duties hereunder, independently or in cooperation with others, including state and federal agencies.

1. Enforce this compact and its orders made hereunder by suit or other appropriate action;

2. Compile a report covering the work of the commission and expenditures during the current biennium, and an estimate of expenditures for the following biennium and transmit it to the President of the United States and to the governors of the signatory states on or before July 1 following each biennium.

ARTICLE IV

Rights to direct flow water shall be administered in each signatory state under state law, with the following limitations:

When there is a water emergency, as hereinafter defined for each division, water shall be distributed therein as provided below.
The commission shall have authority upon its own motion (1) to declare a water emergency in any or all river divisions based upon its determination that there are diversions which violate this compact and which encroach upon water rights in a lower state, (2) to make appropriate orders to prevent such encroachments, and (3) to enforce such orders by action before state administrative officials or by court proceedings.
When the flow of water in an interstate tributary across a state boundary line is insufficient to satisfy water rights on such tributary in a lower state, any water user may file a petition with the commission alleging that by reason of diversions in an upstream state he is being deprived of water to which he is justly entitled and that by reason thereof a water emergency exists, and requesting distribution of water under the direction of the commission. If the commission finds that a water emergency exists and that interstate control of water of such tributary is necessary, it shall put into effect water delivery schedules based on priority of rights and prepared without regard to the state boundary line. The state officials in charge of water distribution on interstate tributaries may appoint and fix the compensation and expenses of a joint water commissioner for each tributary. The proportion of the compensation and expenses to be paid by each state shall be determined by the ratio between the number of acres therein which are irrigated by diversions from such tributary, and the total number of acres irrigated from such tributary.
In preparing interstate water delivery schedules the commission, upon notice and after public hearings, shall make findings of fact as to the nature, priority and extent of water rights, rates of flow, duty of water, irrigated acreages, types of crops, time of use, and related matters; provided that such schedules shall recognize and incorporate therein priority of water rights as adjudicated in each of the signatory states. Such findings of fact shall, in any court or before any tribunal, constitute prima facie evidence of the facts found.
Water emergencies provided for herein shall terminate on September 30 of each year unless terminated sooner or extended by the commission.

Upper Division

a. When the divertible flow as defined below for the Upper Division is less than 1,250 second-feet, a water emergency shall be deemed to exist therein and such divertible flow is allocated for diversion in the river sections of the Division as follows:
1. Upper Utah Section Diversions in second-feet,
2. Upper Wyoming Section Diversions in second-feet,
3. Lower Utah Section Diversions in second-feet,
4. Lower Wyoming Section Diversions in second-feet,
5. The flow in second-feet passing Pixley Dam.
  1. a. When either the divertible flow as hereinafter defined for the Central Division is less than 870 second-feet, or the flow of the Bear River at Border Gaging Station is less than 350 second-feet, whichever shall first occur, a water emergency shall be deemed to exist in the Central Division and the total of all diversions in Wyoming from Grade Creek, Pine Creek, Bruner Creek and Pine Creek Springs, Spring Creek, Sublette Creek, Smiths Fork, and all the tributaries of Smiths Fork above the mouth of Hobble Creek including Hobble Creek, and from the main stem of the Bear River between Pixley Dam and the point where the river crosses the Wyoming-Idaho state line near border shall be limited for the benefit of the state of Idaho, to not exceeding forty-three (43) per cent of the divertible flow. The remaining fifty-seven (57) per cent of the divertible flow shall be available for use in Idaho in the Central Division, but if any portion of such allocation is not used therein it shall be available for use in Idaho in the Lower Division.
    1. Diversions in second-feet in Wyoming consisting of the sum of all diversions from Grade Creek, Pine Creek, Bruner Creek and Pine Creek Springs, Spring Creek, Sublette Creek, and Smiths Fork and all the tributaries of Smiths Fork above the mouth of Hobble Creek including Hobble Creek, and the main stem of the Bear River between Pixley Dam and the point where the river crosses the Wyoming-Idaho state line near Border, Wyoming.
    2. Diversions in second-feet in Idaho from the Bear River main stem from the point where the river crosses the Wyoming-Idaho state line near Border to Stewart Dam including West Fork Canal which diverts at Stewart Dam. (3) Flow in second-feet of the Rainbow Inlet Canal and of the Bear River passing downstream from Stewart Dam.
    3. Idaho and Utah shall each have an additional right to deplete annually on an equal basis, 75,000 acre-feet of the remaining water after the rights provided by subparagraphs (1) and (2) above have been satisfied.
    4. Any remaining water in the Lower Division after the allocations provided for in subparagraphs (1), (2), and (3) above have been satisfied shall be divided; thirty (30) percent to Idaho and seventy (70) percent to Utah.

Upper Utah Section Diversions — 0.6 per cent, Upper Wyoming Section Diversions — 49.3 per cent,

Lower Utah Section Diversions — 40.5 per cent,

Lower Wyoming Section Diversions — 9.6 per cent.

Such divertible flow shall be the total of the following five items:

b. The Hilliard East Fork Canal, Lannon Canal, Lone Mountain Ditch, and Hilliard West Side Canal, which divert water in Utah to irrigate lands in Wyoming, shall be supplied from the divertible flow allocated to the Upper Wyoming Section Diversions.

c. The Chapman, Bear River, and Francis Lee Canals, which divert water from the main stem of Bear River in Wyoming to irrigate lands in both Wyoming and Utah, shall be supplied from the divertible flow allocated to the Upper Wyoming Section Diversions.

d. The Beckwith Quinn West Side Canal, which diverts water from the main stem of Bear River in Utah to irrigate lands in both Utah and Wyoming, shall be supplied from the divertible flow allocated to the Lower Utah Section Diversions.

e. If for any reason the aggregate of all diversions in a river section of the Upper Division does not equal the allocation of water thereto, the unused portion of such allocations shall be available for use in the other river sections in the Upper Division in the following order:

(1) In the other river section of the same state in which the unused allocation occurs; and (2) In the river sections of the other state. No permanent right of use shall be established by the distribution of water pursuant to this paragraph e.

f. Water allocated to the several sections shall be distributed in each section in accordance with state law.

2. Central Division

The divertible flow for the Central Division shall be the total of the following three items:

b. The Cook Canal, which diverts water from the main stem of the Bear River in Wyoming to irrigate lands in both Wyoming and Idaho, shall be considered a Wyoming diversion and shall be supplied from the divertible flow allocated to Wyoming.

c. Water allocated to each state shall be distributed in accordance with state law.

3. Lower Division

When the flow of water across the Idaho-Utah boundary line is insufficient to satisfy water rights in Utah, covering water applied to beneficial use prior to January 1, 1976, any water user in Utah may file a petition with the commission alleging that by reason of diversions in Idaho he is being deprived of water to which he is justly entitled, and that by reason thereof, a water emergency exists, and requesting distribution of water under the direction of the commission. If the commission finds a water emergency exists, it shall put into effect water delivery schedules based on priority of rights and prepared by the commission without regard to the boundary line for all or any part of the division, and during such emergency, water shall be delivered in accordance with such schedules by the state official charged with the administration of public waters.

ARTICLE V

A. Water rights in the Lower Division acquired under the laws of Idaho and Utah covering water applied to beneficial use prior to January 1, 1976, are hereby recognized and shall be administered in accordance with state law based on priority of rights as provided in article IV, paragraph A3. Rights to water first applied to beneficial use on or after January 1, 1976, shall be satisfied from the respective allocations made to Idaho and Utah in this paragraph and the water allocated to each state shall be administered in accordance with state law. Subject to the foregoing provisions, the remaining water in the Lower Division, including ground water tributary to the Bear River, is hereby apportioned for use in Idaho and Utah as follows:

(1) Idaho shall have the first right to the use of such remaining water resulting in an annual depletion of not more than 125,000 acre-feet.

(2) Utah shall have the second right to the use of such remaining water resulting in an annual depletion of not more than 275,000 acre-feet.

B. Water allocated under the above subparagraphs shall be charged against the state in which it is used regardless of the location of the point of diversion.

C. Water depletions permitted under provisions of subparagraphs (1), (2), (3), and (4) above, shall be calculated and administered by a commission-approved procedure.

ARTICLE VI

Existing storage rights in reservoirs constructed above Stewart Dam prior to February 4, 1955 are as follows:
In addition to the rights defined in paragraph A of this article, further storage entitlements above Stewart Dam are hereby granted. Wyoming and Utah are granted an additional right to store in any year 70,000 acre-feet of Bear River water for use in Utah and Wyoming to be divided equally; and Idaho is granted an additional right to store 4,500 acre-feet of Bear River water in Wyoming or Idaho for use in Idaho. Water rights granted under this paragraph and water appropriated, including ground water tributary to Bear River, which is applied to beneficial use on or after January 1, 1976, shall not result in an annual increase in depletion of the flow of the Bear River and its tributaries above Stewart Dam of more than 28,000 acre-feet in excess of the depletion as of January 1, 1976. Thirteen thousand (13,000) acre-feet of the additional depletion above Stewart Dam is allocated to each of Utah and Wyoming, and two thousand (2,000) acre-feet is allocated to Idaho. The additional storage rights provided for in this paragraph shall be subordinate to, and shall not be exercised when the effect thereof will be to impair or interfere with (1) existing direct flow rights for consumptive use in any river division and (2) existing storage rights above Stewart Dam, but shall not be subordinate to any right to store water in Bear Lake or elsewhere below Stewart Dam; provided, however, there shall be no diversion of water to storage above Stewart Dam under this paragraph B when the water surface elevation of Bear Lake is below 5,911.00 feet, Utah Power & Light Company datum (the equivalent of elevation 5,913.75 feet based on the sea level datum of 1929 through the Pacific Northwest Supplementary Adjustment of 1947). Water depletions permitted under this paragraph B shall be calculated and administered by a commission-approved procedure.
In addition to the rights defined in article VI, paragraphs A and B, Idaho, Utah and Wyoming are granted the right to store and use water above Stewart Dam that otherwise would be bypassed or released from Bear Lake at times when all other direct flow and storage rights are satisfied. The availability of such water and the operation of reservoir space to store water above Bear Lake under this paragraph shall be determined by a commission-approved procedure. The storage provided for in this paragraph shall be subordinate to all other storage and direct flow rights in the Bear River. Storage rights under this paragraph shall be exercised with equal priority on the following basis: six (6) percent thereof to Idaho; forty-seven (47) percent thereof to Utah; and forty-seven (47) percent thereof to Wyoming.
The waters of Bear Lake below elevation 5,912.91 feet, Utah Power & Light Company Bear Lake datum (the equivalent of elevation 5,915.66 feet based on the sea level datum of 1929 through the Pacific Northwest Supplementary Adjustment of 1947) shall constitute a reserve for irrigation. The water of such reserve shall not be released solely for the generation of power, except in emergency, but after release for irrigation it may be used in generating power if not inconsistent with its use for irrigation. Any water in Bear Lake in excess of that constituting the irrigation reserve may be used solely for the generation of power or for other beneficial uses. As new reservoir capacity above the Stewart Dam is constructed to provide additional storage pursuant to paragraph A of this article, the commission shall make a finding in writing as to the quantity of additional storage and shall thereupon make an order increasing the irrigation reserve in accordance with the following table:
Subject to existing rights, each state shall have the use of water, including ground water, for ordinary domestic, and stock watering purposes, as determined by state law and shall have the right to impound water for such purposes in reservoirs having storage capacities not in excess, in any case, of 20 acre-feet, without deduction from the allocation made by paragraphs A, B, and C of this article.
The storage rights in Bear Lake are hereby recognized and confirmed subject only to the restrictions hereinbefore recited.

Idaho ............................... 324 acre-feet

Utah ............................... 11,850 acre-feet

Wyoming ............................... 2,150 acre-feet

Additional rights are hereby granted to store in any water year above Stewart Dam, 35,500 acre-feet of Bear River water and no more under this paragraph for use in Utah and Wyoming; and to store in any water year in Idaho or Wyoming on Thomas Fork 1,000 acre-feet of water for use in Idaho. Such additional storage rights shall be subordinate to, and shall not be exercised when the effect thereof will be to impair or interfere with (1) existing direct flow rights for consumptive use in any river division and (2) existing storage rights above Stewart Dam, but shall not be subordinate to any right to store water in Bear Lake or elsewhere below Stewart Dam. One half of the 35,500 acre-feet of additional storage right above Stewart Dam so granted to Utah and Wyoming is hereby allocated to Utah, and the remaining one half thereof is allocated to Wyoming.

Lake Surface elevation

Additional storage Utah Power & Light Company

acre-feet Bear Lake datum

5,000 5,913.24

10,000 5,913.56

15,000 5,913.87

20,000 5,914.15

25,000 5,914.41

30,000 5,914.61

35,500 5,914.69 36,500 5,914.70

ARTICLE VII

It is the policy of the signatory states to encourage additional projects for the development of the water resources of the Bear River to obtain the maximum beneficial use of water with a minimum of waste, and in furtherance of such policy, authority is granted within the limitations provided by this compact, to investigate, plan, construct, and operate such projects without regard to state boundaries, provided that water rights for each such project shall, except as provided in article VI, paragraphs A and B thereof, be subject to rights theretofore initiated and in good standing.

ARTICLE VIII

No state shall deny the right of the United States of America, and subject to the conditions hereinafter contained, no state shall deny the right of another signatory state, any person or entity of another signatory state, to acquire rights to the use of water or to construct or to participate in the construction and use of diversion works and storage reservoirs with appurtenant works, canals, and conduits in one state for use of water in another state, either directly or by exchange. Water rights acquired for out-of-state use shall be appropriated in the state where the point of diversion is located in the manner provided by law for appropriation of water for use within such state.
Any signatory state, any person or any entity of any signatory state, shall have the right to acquire in any other signatory state such property rights as are necessary to the use of water in conformity with this compact by donation, purchase, or, as hereinafter provided through the exercise of the power of eminent domain in accordance with the law of the state in which such property is located. Any signatory state, upon the written request of the governor of any other signatory state for the benefit of whose water users property is to be acquired in the state to which such written request is made, shall proceed expeditiously to acquire the desired property either by purchase at a price acceptable to the requesting governor, or if such purchase cannot be made, then through the exercise of its power of eminent domain and shall convey such property to the requesting state or to the person, or entity designated by its governor provided, that all costs of acquisition and expenses of every kind and nature whatsoever incurred in obtaining such property shall be paid by the requesting state or the person or entity designated by its governor.
Should any facility be constructed in a signatory state by and for the benefit of another signatory state or persons or entities therein, as above provided, the construction, repair, replacement, maintenance and operation of such facility shall be subject to the laws of the state in which the facility is located.
In the event lands or other taxable facilities are acquired by a signatory state in another signatory state for the use and benefit of the former, the users of the water made available by such facilities, as a condition precedent to the use thereof, shall pay to the political subdivisions of the state in which such facilities are located, each and every year during which such rights are enjoyed for such purposes, a sum of money equivalent to the average of the amount of taxes annually levied and assessed against the land and improvements thereon during the ten years preceding the acquisition of such land. Said payments shall be in full reimbursement for the loss of taxes in such political subdivision of the state. E. Rights to the use of water acquired under this article shall in all respects be subject to this compact.

ARTICLE IX

Stored water, or water from another watershed may be turned into the channel of the Bear River in one state and a like quantity, with allowance for loss by evaporation, transpiration, and seepage, may be taken out of the Bear River in another state either above or below the point where the water is turned into the channel, but in making such exchange the replacement water shall not be inferior in quality for the purpose used or diminished in quantity. Exchanges shall not be permitted if the effect thereof is to impair vested rights or to cause damage for which no compensation is paid. Water from another watershed or source which enters the Bear River by actions within a state may be claimed exclusively by that state and use thereof by that state shall not be subject to the depletion limitations of articles IV, V and VI. Proof of any claimed increase in flow shall be the burden of the state making such claim, and it shall be approved only by the unanimous vote of the commission.

ARTICLE X

The following rights to the use of Bear River water carried in interstate canals are recognized and confirmed.
All interstate rights shall be administered by the state in which the point of diversion is located and during times of water emergency, such rights shall be filled from the allocations specified in article IV hereof for the section in which the point of diversion is located, with the exception that the diversion of water into the Hilliard East Fork Canal, Lannon Canal, Lone Mountain Ditch, and Hilliard West Side Canal shall be under the administration of Wyoming. During times of water emergency these canals and the Lone Mountain Ditch shall be supplied from the allocation specified in article IV for the Upper Wyoming Section Diversions. ARTICLE XI Applications for appropriation, for change of point of diversion, place and nature of use, and for exchange of Bear River water shall be considered and acted upon in accordance with the law of the state in which the point of diversion is located, but no such application shall be approved if the effect thereof will be to deprive any water user in another state of water to which he is entitled, nor shall any such application be approved if the effect thereof will be an increase in the depletion of the flow of the Bear River and its tributaries beyond the limits authorized in each state in articles IV, V and VI of this compact. The official of each state in charge of water administration shall, at intervals and in the format established by the commission, report on the status of use of the respective allocations.

Primary

Date of right Lands irrigated

Name of Canal priority second-feet Acres State

Hilliard East Fork 1914 28.00 2,644 Wyoming

Chapman 8-13-86 16.46 1,155 Wyoming

8-13-86 98.46 6,892 Utah

4-12-12 .57 40 Wyoming

5-3-12 4.07 285 Utah

5-21-12 10.17 712 Utah

2-6-13 .79 55 Wyoming

8-28-05 134.00

Francis Lee 1879 2.20 154 Wyoming

1879 7.41 519 Utah

Under the right as herein confirmed not to exceed 134 second-feet may be carried across the Wyoming-Utah state line in the Chapman Canal at any time for filling the Neponset Reservoir, for irrigation of land in Utah and for other purposes. The storage right in Neponset Reservoir is for 6,900 acre-feet which is a component part of the irrigation right for the Utah lands listed above.

All other rights to the use of water carried in interstate canals and ditches, as adjudicated in the state in which the point of diversion is located, are recognized and confirmed.

ARTICLE XII

Nothing in this compact shall be construed to prevent the United States, a signatory state or political subdivision thereof, person, corporation, or association, from instituting or maintaining any action or proceeding, legal or equitable, for the protection of any right under state or federal law or under this compact.

ARTICLE XIII

Nothing contained in this compact shall be deemed

to affect the obligations of the United States of America to the Indian tribes;
to impair, extend or otherwise affect any right or power of the United States, its agencies or instrumentalities involved herein; nor the capacity of the United States to hold or acquire additional rights to the use of the water of the Bear River;
to subject any property or rights of the United States to the laws of the states which were not subject thereto prior to the date of this compact;
to submit any property of the United States to taxation by the states or any subdivision thereof, nor to obligate the United States to pay any state or subdivision thereof for loss of taxes.

ARTICLE XIV

At intervals not exceeding twenty years, the commission shall review the provisions hereof, and after notice and public hearing, may propose amendments to any such provision, provided, however, that the provisions contained herein shall remain in full force and effect until such proposed amendments have been ratified by the legislatures of the signatory states and consented to by congress.

ARTICLE XV

This compact may be terminated at any time by the unanimous agreement of the signatory states. In the event of such termination all rights established under it shall continue unimpaired. ARTICLE XVI

Should a court of competent jurisdiction hold any part of this compact to be contrary to the constitution of any signatory state or to the Constitution of the United States, all other severable provisions of this compact shall continue in full force and effect.

ARTICLE XVII

This compact shall be in effect when it shall have been ratified by the legislature of each signatory state and consented to by the congress of the United States of America. Notice of ratification by the legislatures of the signatory states shall be given by the governor of each signatory state to the governor of each of the other signatory states and to the President of the United States of America, and the President is hereby requested to give notice to the governor of each of the signatory states of approval by the congress of the United States of America.

IN WITNESS WHEREOF, The commissioners and their advisors have executed this compact in five originals, one of which shall be deposited with the General Services Administration of the United States of America, one of which shall be forwarded to the governor of each of the signatory states, and one of which shall be made a part of the permanent records of the Bear River Commission.

Done at Salt Lake City, Utah, this 22nd day of December 1978.

For the State of Idaho:

/s/ Don W. Gilbert

/s/ Clifford J. Skinner

/s/ J. Daniel Roberts

For the state of Utah:

/s/ David F. Lawrence

/s/ S. Paul Holmgren

/s/ Simeon Weston

For the state of Wyoming:

/s/ John A. Teichert

/s/ George L. Christopulos

/s/ J. W. Myers

Approved: Attest:

/s/ Wallace N. Jibson /s/ Daniel F. Lawrence

Representative of the United Secretary of the Bear River

States of America Compact Commission

History.

1955, ch. 218, § 1, p. 450; am. 1979, ch. 322, § 1, p. 862.

STATUTORY NOTES

Cross References.

Commission administering compact,§ 42-3501 et seq.

Compiler’s Notes.

The bracketed semi-colon at the end of clause 2 of Article II was inserted by the compiler to correct the enacting legislation.

Section 2 of S.L. 1955, ch. 218 read: “The compact set forth in section 1 of this act shall not become operative unless and until it has been ratified and approved by appropriate legislative enactment by the states of Utah and Wyoming and has been consented to by the congress of the United States. The governor of Idaho shall give notice of ratification and approval of this compact by the Idaho Legislature to the governor of Utah, to the governor of Wyoming and to the President of the United States.”

Congress consented to the compact by an act approved March 17, 1958. Public Law 85-348, 72 Stat. 38.

Section 2 of S.L. 1979, ch. 322 read: “The compact set forth in section 1 of this act shall not become operative unless and until it has been ratified and approved by appropriate legislative enactment by the states of Utah and Wyoming and has been consented to by the Congress of the United States. The governor of Idaho shall give notice of ratification and approval of this compact by the Idaho legislature to the governor of Utah, to the governor of Wyoming and to the president of the United States.”

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 3 of S.L. 1955, ch. 218 declared an emergency. Approved March 15, 1955.

Section 3 of S.L. 1979, ch. 322 declared an emergency. Approved April 5, 1979.

OPINIONS OF ATTORNEY GENERAL

Revenue Bonds.

The Idaho Water Resource Board has authority to issue revenue bonds, either separately or jointly with the other compacting states, to fund Idaho’s share of a joint water project on the Bear River within Idaho, Utah, or Wyoming. However, the Idaho Legislature must authorize construction of the project before the Idaho Water Resource Board may issue the revenue bonds.OAG 89-1.

Transfer of Water.

Because the compact, rather than state law, will control, an interbasin transfer of Bear River water from a joint project in Idaho to Utah or Wyoming will not create a legal precedent affecting other river basins in the state.OAG 89-1.

The compact restricts the use of Bear River water to within the boundaries of the compacting states.OAG 89-1.

Idaho’s share of Bear River water under the Bear River Compact cannot be allocated for use in another state.OAG 89-1.

If a joint water project on the Bear River is developed in Idaho, water allocated for beneficial use in Utah and Wyoming will be charged against Utah’s or Wyoming’s share of water under the Amended Bear River Compact.OAG 89-1.

§ 42-3403. Columbia Interstate Compact ratified. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, comprising S.L. 1963, ch. 310, § 1, p. 818, was repealed by S.L. 1975, ch. 20, § 1.

§ 42-3404. Anadromous fish — Compact with Washington and Oregon — Regulatory powers of fish and game representatives of states.

Should congress by virtue of the authority vested in it under article 1, section 10, of the Constitution of the United States, providing for compacts and agreements between states, ratify the following as a definite compact and agreement between the states of Washington, Oregon and Idaho, then, and in that event, there shall exist between the states of Washington, Oregon and Idaho a compact and agreement, the purport of which shall be substantially as follows:

The compact states acknowledge that they have a common interest in the conservation and management of anadromous fish stocks in the Columbia River drainage and they mutually agree to assume joint responsibility in developing sports and commercial fishery programs and regulations which will maintain and preserve the resource for the interest and benefit of all users.

Membership from the compact states shall be the Idaho department of fish and game, the fish commission of the state of Oregon, Oregon wildlife commission, Washington department of fisheries and the Washington department of game or the successor agency to any of the above. The compact members may appoint advisors to serve as needed.

All rules and regulations now existing or which may be necessary for the conservation and management of anadromous fish in the waters of the main stem of the Columbia River from its mouth to the mouth of the Snake River and the waters of the main stem of the Snake River from its mouth to the mouth of the Salmon River, shall be made, changed, altered and amended in whole or in part by a majority vote. In voting on rules and regulations, each state shall be entitled to one (1) vote. Idaho will vote only on those regulations which might have a substantial impact on fish destined for Idaho waters.

The individual states shall be responsible for the management of anadromous fish stocks in pertinent tributary streams and shall be guided in such management by the intent and purpose of this compact.

History.

1967, ch. 37, § 1, p. 59; am. 1969, ch. 6, § 1, p. 9; am. 1975, ch. 233, § 1, p. 637.

STATUTORY NOTES

Compiler’s Notes.

Section 2 of S.L. 1975, ch. 233 read: “The compact and agreement now existing between the states of Washington and Oregon for the purpose of regulating, protecting or preserving fish in the waters of the Columbia River, or its tributaries, over which the states of Washington and Oregon have concurrent jurisdiction, or which would be affected by said concurrent jurisdiction shall be of no force and effect upon ratification by the congress of the compact and agreement provided for in section 1 of this 1975 act.”

Chapter 35 COMMISSIONS TO ADMINISTER COMPACTS

Sec.

§ 42-3501. Bear River Compact commissioners — Appointment.

The governor of the state of Idaho is hereby authorized and directed to appoint three (3) commissioners to represent the state of Idaho on a joint commission to be composed of three (3) commissioners from each of the states of Idaho, Utah, and Wyoming and one (1) commissioner that may be appointed to represent the United States of America, the said joint commission to be constituted for the purpose of administration of the Bear River Compact.

History.

1955, ch. 219, § 1, p. 468.

STATUTORY NOTES

1963, ch. 310, § 6, p. 818.

STATUTORY NOTES

Prior Laws.

Former§ 42-3509 was repealed. See Prior Laws,§ 42-3505.

Compiler’s Notes.

§ 42-3510. State officers to render assistance to Columbia Compact Commission.

All officers of this state are hereby authorized and directed to do all things, falling within their respective provinces and jurisdiction, necessary to or incidental to the carrying out of said compact in every particular. All officers, bureaus, departments and persons of and in the government or administration of this state are hereby authorized and directed, at convenient times and upon the request of the said commission, to furnish said commission with information and data possessed by them or any of them, and to aid said commission by any means lying within their legal powers respectively.

History.

1963, ch. 310, § 7, p. 818.

STATUTORY NOTES

Prior Laws.

Former§ 42-3510 was repealed. See Prior Laws,§ 42-3505.

§ 42-3511. Powers granted Columbia Compact Commission supplemental to those contained in compact.

Any powers herein granted to the commission shall be regarded as in aid of and supplemental to and in no case a limitation upon any of the powers vested in said commission by other laws of this state or by the laws of other signatory states or by congress or by the terms of said compact, which shall be liberally construed.

History.

1963, ch. 310, § 8, p. 818.

STATUTORY NOTES

Prior Laws.

Former§ 42-3511 was repealed. See Prior Laws,§ 42-3505.

Chapter 36 WATERSHED PROTECTION AND FLOOD PREVENTION

Sec.

§ 42-3601. Purpose to prevent erosion, floodwater and sediment damages.

Erosion, floodwater, and sediment damages in the watersheds of the rivers and streams of the state of Idaho, causing loss of life and damage to property, constitute a menace to the welfare of the citizens of Idaho; and it is the sense of the legislature of the state of Idaho that the state of Idaho should cooperate with the United States of America, with any political subdivision or public agency in the state of Idaho and with any private person, association, corporation or group of persons, or any agent or agency of any of the foregoing now or hereafter having authority to so cooperate for the purpose of preventing such damages and of furthering the conservation, development, utilization, and disposal of water in Idaho and thereby of preserving and protecting the land and water resources of the state of Idaho.

History.

1957, ch. 120, § 1, p. 199.

§ 42-3602. Acceptance of provisions of federal act — Cooperation with federal authorities.

To effectuate the purposes of the act, as expressed in section 42-3601[, Idaho Code,] hereof, the state of Idaho hereby accepts the provisions of the “Watershed Protection and Flood Prevention Act” (Aug. 4, 1954; 68 Stat. 666), and present and future amendments thereto, and shall, through the director of the department of lands of the state of Idaho, advise, consult and cooperate with any authorized federal officer or agency or any other authorized body or person whomsoever, or any combination thereof, in planning any number of “works of improvement” in Idaho under the said “Watershed Protection and Flood Prevention Act.”

History.

1957, ch. 120, § 2, p. 199; am. 1974, ch. 17, § 23, p. 308.

STATUTORY NOTES

Cross References.

Board of land commissioners, Idaho Const., Art. IX, § 7 and§ 58-101 et seq.

Department of lands,§ 58-101 et seq.

Federal References.

The Watershed Protection and Flood Prevention Act of 1954 is compiled in 16 U.S.C.S. §§ 1001 to 1010.

Compiler’s Notes.

The words “the act” near the beginning of the section refer to S.L. 1957, chapter 120, compiled as§§ 42-3601 to 42-3604.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

The reference enclosed in parentheses so appeared in the law as enacted.

§ 42-3603. Agreements authorized for works of improvement.

The state of Idaho, by and through the director of the department of lands with the approval of the board of land commissioners, is authorized to enter into reasonable agreements with any authorized federal officer or agency or any other authorized body or person whomsoever, or any combination thereof, in constructing and maintaining or in any other manner whatsoever completing and effectuating any number of “works of improvement” under the said “Watershed Protection and Flood Prevention Act.” Provided, however, that no such agreement shall obligate the state of Idaho to bear more than its reasonable share of the cost of such “works of improvement,” considering the benefits accruing to the state of Idaho in relation to benefits accruing to others.

History.

1957, ch. 120, § 3, p. 199; am. 1974, ch. 17, § 24, p. 308.

STATUTORY NOTES

Federal References.

The Watershed Protection and Flood Prevention Act is compiled in 16 U.S.C.S. §§ 1001 to 1010.

§ 42-3604. Utilization of administrative appropriations and personnel.

For the purpose of executing section 42-3602, Idaho Code, the director of the department of lands is authorized to utilize existing and regular administrative appropriations and personnel. For the purposes of executing the provisions of section 42-3603, Idaho Code, the director is authorized to expend such funds as may now or hereafter be available to him for said purposes and he may likewise expend such moneys, over which he may be given control, as may be granted to the state of Idaho by the United States of America or anyone else for said purposes.

History.

1957, ch. 120, § 4, p. 199; am. 1974, ch. 17, § 25, p. 308.

STATUTORY NOTES

Compiler’s Notes.

Section 5 of S.L. 1957, ch. 120 provided: “The provisions of this act are hereby declared to be separable and if any portion of this act is judicially declared to be unconstitutional, such shall not affect the remaining portions of this act.”

Effective Dates.

Section 75 of S.L. 1974, ch. 17 provided that this act take effect on and after July 1, 1974.

Chapter 37 WATERSHED IMPROVEMENT DISTRICTS

Sec.

§ 42-3701. Short title.

§ 42-3704. Definition of watershed improvement districts.

Watershed improvement districts may be established in this state pursuant to this act, and when so established shall be governmental subdivisions of this state and public bodies corporate and politic.

Such watershed improvement districts may be organized within one or more counties of this state and the boundaries of such district may transcend county boundaries. In no instance shall a district involve more than 250,000 acres of private lands.

History.

1957, ch. 226, § 4, p. 508; am. 1972, ch. 195, § 1, p. 483; am. 1989, ch. 295, § 1, p. 723.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” in the first paragraph refer to S.L. 1957, chapter 226, which is compiled as§§ 42-3701 to 42-3717.

§ 42-3705. Creation of watershed improvement districts.

Any fifteen (15) owners of land lying within the limits of the territory proposed to be organized into a watershed improvement district may file a petition with the state soil and water conservation commission asking that a watershed improvement district be organized to function in the territory described in the petition. In the event that there are less than fifteen (15) persons owning land lying within the limits of the territory proposed to be organized into a district, then and in that case such petition will be deemed sufficient if it contains the signatures of two-thirds (2/3) of the owners of land and representing two-thirds (2/3) of the acreage of land lying within the limits of the said territory. Such petition shall set forth:

A description of the territory proposed to be organized as a watershed improvement district, which description shall be deemed sufficient if generally accurate.
That there is need, in the interest of the public health, safety, and general welfare for a watershed improvement district to function in the territory described in the petition.
The proposed name of said district.
A request that the state soil and water conservation commission duly define the boundaries for such district; that an election be held within the territory so defined on the question of the creation of a watershed improvement district in such territory.

After such petition has been filed with the state soil and water conservation commission it shall be the duty of the commission to define by metes and bounds or by legal subdivisions the boundaries of such proposed district, and to hold an election, subject to the provisions of section 34-106, Idaho Code, within the proposed district upon the proposition of the creation of the district, and to cause notice of such election to be given. The question shall be submitted by ballots upon which the words “For creation of a watershed improvement district of the lands below described and lying in the county(ies) of ...., .... and ....” and “Against creation of a watershed improvement district of the lands below described and lying in the county(ies) of ...., .... and ....” shall appear with a square before each proposition and a direction to insert an X mark in the square before one or the other of said propositions as the voter may favor or oppose creation of such district. The ballot shall set forth the boundaries of such proposed district as determined by the state soil and water conservation commission.

All qualified electors who own land within the proposed district shall be eligible to vote in the election.

The state soil and water conservation commission shall pay all expenses of, and supervise the conduct of, such election. The commission shall conduct the election as provided in chapter 14, title 34, Idaho Code. No informality in the conduct of such election or in any matter relating thereto shall invalidate said election or the result thereof if notice thereof shall have been given substantially as herein provided, and said election shall have been fairly conducted.

If the election shall result in a majority of votes being cast in favor of the creation of such proposed district the state soil and water conservation commission shall proceed with the organization of the district in the manner hereinafter provided, to wit: 1. The state soil and water conservation commission shall appoint one (1) director to act with the two (2) directors elected as hereinafter provided, which said directors shall be the governing body of the district.

2. The state soil and water conservation commission shall present to the secretary of state a certificate stating:

That a petition for the creation of said district was filed with the state soil and water conservation commission.
The name and residence of the directors appointed by said commission.
The name which is proposed for said district.
That an election on such petition was held, and that the majority of votes cast in said election favored the formation of the district.

The secretary of state shall receive, file and record said certificate of the state soil and water conservation commission, and when said certificate shall be filed and recorded the district shall constitute a governmental subdivision of this state and a public body corporate and politic. The secretary of state shall make and issue to the said directors a certificate of the due organization of the said district.

History.

1957, ch. 226, § 5, p. 508; am. 1995, ch. 118, § 72, p. 417; am. 2010, ch. 279, § 29, p. 719.

STATUTORY NOTES

Cross References.

Secretary of state,§ 67-901 et seq.

State soil and water conservation commission,§ 22-2718.

Amendments.

The 2010 amendment, by ch. 279, substituted “state soil and water conservation commission” for “state soil conservation commission” throughout the section.

Compiler’s Notes.

The letters enclosed in parentheses so appeared in the law as enacted.

§ 42-3706. Election of district directors.

After the date of issuance of the secretary of state of a certificate of organization of a watershed improvement district nominating petitions may be filed with the state soil and water conservation commission to nominate candidates for directors of such district. The state soil and water conservation commission shall give notice of an election to be held, subject to the provisions of section 34-106, Idaho Code, for the election of two (2) directors for the district. The names of all nominees on behalf of whom such nominating petitions have been filed in the manner provided in section 34-1404, Idaho Code, shall appear arranged in the alphabetical order of the surnames upon ballots with a square before each name, and direction to insert an X mark in the square before any two (2) names to designate the voter’s preference. All qualified electors who own land or reside within the proposed district shall be eligible to vote in said election. The two (2) candidates who shall receive the largest number respectively of the votes cast in such election shall be elected for such district. The state soil and water conservation commission shall pay all the expenses of such election, supervise the conduct thereof, and publish the results thereof in accordance with the provisions of chapter 14, title 34, Idaho Code. All elections in existing districts following the first election shall be conducted by the district directors of the district involved who shall give notice of such elections and who shall bear the cost thereof.

In any election for director, if after the deadline for filing a declaration of intent as a write-in candidate, it appears that the number of qualified candidates who have been nominated for director positions is equal to the number of directors to be elected, it shall not be necessary for the candidates to stand for election, and the board of directors shall declare such candidates elected as directors, and the secretary of the district shall immediately make and deliver to such persons certificates of election.

History.

1957, ch. 226, § 6, p. 508; am. 1995, ch. 118, § 73, p. 417; am. 2010, ch. 279, § 30, p. 719.

STATUTORY NOTES

Cross References.

Secretary of state,§ 67-901 et seq.

State soil and water conservation commission,§ 22-2718.

Amendments.

The 2010 amendment, by ch. 279, substituted “soil and water conservation commission” for “soil conservation commission” three times in the first paragraph.

§ 42-3707. Appointment, qualifications and tenure of directors.

The governing body of the district shall consist of three (3) directors elected or appointed as provided hereinabove. The director appointed by the commission shall be an owner of land within the district and shall be a person who by training and experience is qualified to perform the specialized service which will be required in the performance of his duties hereunder. The term of office of each director shall be four (4) years, except that the director first appointed by the state soil and water conservation commission shall be designated to serve for a term of two (2) years from the date of his appointment. A director shall hold office until his successor has been elected or appointed, and has qualified. Vacancies shall be filled for an unexpired term by a majority of the directors duly qualified and acting at the time the vacancy shall arise. A majority of the directors shall constitute a quorum and the concurrence of a majority in any matter within their duties shall be required for its determination. A director shall receive no compensation for his service, but shall be entitled to expenses, including traveling expenses necessarily incurred in the discharge of his duties.

The directors may employ a secretary, technical experts, and such other employees, permanent and temporary, as they may require, and shall determine their qualifications, duties, and compensation. The directors may employ their own counsel and legal staff. The directors may delegate to their chairman, to one (1) or more directors, or to agents or employees such powers and duties as they may deem proper and necessary. The directors shall furnish to the state soil and water conservation commission, upon request, copies of such documents or other information concerning the directors’ activities as said commission may require in the performance of its duties under this chapter. The directors shall provide for the keeping of a record of all proceedings, resolutions, regulations and orders issued or adopted; shall provide for an annual audit of its accounts, and shall provide for the execution of surety bonds by any employee or officer who shall be entrusted with funds or property of the district.

History.

1957, ch. 226, § 7, p. 508; am. 2010, ch. 279, § 31, p. 719.

STATUTORY NOTES

Cross References.

State soil and water conservation commission,§ 22-2718.

Amendments.

The 2010 amendment, by ch. 279, substituted “soil and water conservation commission” for “soil conservation commission” in both paragraphs; and in the fourth sentence in the second paragraph, substituted “this chapter” for “this act.”

§ 42-3708. Powers of directors.

The directors of a watershed improvement district shall have power:

To levy and cause to be collected assessments on real property within the district in an amount not to exceed six hundredths of one per cent (.06%) of the market value for assessment purposes on all taxable property within the district, for the purpose of general administration and operation and maintenance of the district and in addition thereto to separately levy and cause to be collected assessments on real property within the district in an amount not to exceed twenty hundredths of one per cent (.20%) of the market value for assessment purposes on all taxable property within the district for construction of structural works of improvement. Before a levy can be made for any purpose, an election, subject to the provisions of section 34-106, Idaho Code, as herein provided must be held, and the provisions as outlined under sections 42-3712, 42-3713 and 42-3714, Idaho Code, must be complied with, and assessments can only be levied against lands to be directly benefited.
To conduct surveys, investigations and research relating to floodwater, sediment damage and the conservation, utilization, and disposal of water in the district, and the structural works of improvement needed.
To obtain options upon and acquire by purchase, exchange, lease, gift, grant, bequest, devise, or otherwise, any property, real or personal, and improve any properties acquired; to receive income from such properties and to expend such income in carrying out the purposes and provisions of this chapter; to sell, lease, or otherwise dispose of any of its property or interest therein in furtherance of the purposes and provisions of this chapter.
To develop comprehensive plans for the prevention of floodwater and sediment damage and the conservation, development, utilization, and disposal of water within the district, which plans shall specify the acts, procedures, performances and avoidances which are necessary for effectuation of such plans.
To construct, operate and maintain structural works of improvement for the prevention of floodwater and sediment damages, and the conservation, development, utilization, and disposal of water as provided for in the act of the congress of the United States known as the Watershed Protection and Flood Prevention Act (U.S.C., tit. 16, sections 1001-1008) and acts amendatory thereto.
To have the right of eminent domain with the power to cause to be condemned and appropriated for the use of the district in the construction, operation, maintenance and upkeep of its structures, waterways, dikes, dams, basins, or any other use necessary in the carrying out of the provisions of this chapter upon the payment of just compensation therefor.
To borrow money and to issue negotiable coupon bonds, which bonds shall bear interest, and which bonds shall be due and payable not later than thirty (30) years from the date of issuance, or at such earlier date as may be determined by the directors. The form and terms of said bonds, including their payment and redemption prior to maturity, shall be determined by the directors. Such bonds as may be issued shall be payable solely out of and from the assessments levied upon and a lien upon the lands within the district as provided in this chapter. Such bonds may be issued by the directors only upon the holding of an election within the district as provided by law and upon such election resulting in two-thirds (2/3) of the property owners, and representing at least fifty-one per cent (51%) of the land to be benefited, casting their ballots in favor thereof.
To enter into contracts or agreements with the United States or any of its officers, agents, or subdivisions, or the state of Idaho or any of its officers, agents or political subdivisions, and to cooperate with such governments, persons or agencies in effectuating, promoting and accomplishing the purposes of this chapter.
To bear its allocated share of the cost of any project resulting from any contract or agreement entered into as provided in subsection 8. of this section.
To take over, administer and maintain pursuant to any agreement or contract entered into in accordance with the provisions of subsection 8. of this section any watershed improvement project within its boundaries undertaken in cooperation with the United States or any of its agencies, or with the state of Idaho or any of its agencies, or any combinations thereof.
To accept donations, gifts and contributions in money, services, or materials, or otherwise, from the United States or any of its agencies, or the state of Idaho or any of its agencies or any combinations thereof, and to expend such moneys, services, or materials in carrying on its operations.
To sue and be sued in the name of the district; to have a seal, which seal shall be judicially noticed; to have perpetual succession unless terminated as hereinafter provided; to make and execute contracts and other instruments necessary or convenient to the exercise of its powers, and to promulgate, amend and repeal rules not consistent with the provisions of this chapter.
To exercise all other powers necessary, convenient or incidental to carrying out the purposes and provisions of this chapter.

History.

1957, ch. 226, § 8, p. 508; am. 1970, ch. 133, § 8, p. 309; am. 1980, ch. 136, § 5, p. 297; am. 1995, ch. 82, § 19, p. 218; am. 1995, ch. 118, § 74, p. 417; am. 1996, ch. 322, § 40, p. 1029.

STATUTORY NOTES

Amendments.

This section was amended by two 1995 acts which appear to be compatible and have been compiled together.

The 1995 amendment, by ch. 82, § 19, in subdivision 1., substituted “six hundredths percent (.06%) of the market value for assessment purposes on all taxable property within the district” for “three (3) mills for each dollar of assessed valuation” and substituted “two tenths percent (.2%) of the market value for assessment purposes on all taxable property within the district” for “ten (10) mills for each dollar of assessed valuation”; in subdivision 7. substituted “two-thirds” for “a two-third”; in subdivisions 9. and 10. substituted “subsection 8 of this section” for “subparagraph 8 hereof”; and in subdivision 12. deleted “and regulations” following “rules”.

Compiler’s Notes.

The 1995 amendment, by ch. 118, § 74, in subdivision 1. substituted “six hundredths of one per cent (.06%) of market value for assessment purposes” for “three (3) mills for each dollar of assessed valuation”, substituted “twenty hundredths of one per cent (.20%) of market value for assessment purposes” for “ten (10) mills for each dollar of assessed valuation”, and substituted “an election, subject to the provisions of section 34-106, Idaho Code,” for “referendum”; in subdivisions 3., 6., 7., 8., 12., and 13. substituted “chapter” for each occurrence of “act”; in the fourth sentence of subdivision 7. deleted “referendum” preceding “election within the district” and substituted “election” for “referendum” preceding “resulting in”; and in subdivisions 9. and 10. substituted “subparagraph 8. of this section” for each occurrence of “subparagraph 8 hereof”. Compiler’s Notes.

The reference enclosed in parentheses in subsection 5. so appeared in the law as enacted.

§ 42-3709. Submission of proposed project to director of the department of water resources.

Before any contract shall be let or work begun upon any improvement or project within the district the cost of which cannot be exclusively financed by funds on hand, grants in aid, or gifts to the district, or before any contract may be entered into by the district with any other government agency or body which will obligate the district to contribute financially beyond the extent of the funds of the district then on hand, it shall be the duty of the directors to file with the director of the department of water resources a statement of the proposed improvement or project describing in detail such improvement or project, its scope, geographical location, estimated cost, economic feasibility, the tracts of land considered benefited by such improvement or project, and the proposed method of financing the costs of such improvement or project. The statement shall be accompanied by a general print of the area within the district showing thereon the area which will be affected by such improvement or project, and the plans and specifications for the said improvement or project.

History.

1957, ch. 226, § 9, p. 508.

STATUTORY NOTES

Compiler’s Notes.

§ 42-3710. Hearing on proposed projects.

Not sooner than sixty (60) days after the submission of the plans for any project to the director of the department of water resources as set forth in section 42-3709[, Idaho Code], and before any contract shall be let or work begun upon any improvement or project within the district the cost of which cannot be exclusively financed by funds on hand, grants in aid, or gifts to the district, or before any contract may be entered into by the district with any governmental agency or body which will obligate the district to contribute financially beyond the extent of funds of the district then on hand, it shall be the duty of the directors to set a time and place within the district for a public hearing upon said proposal, and the directors shall cause a notice thereof to be published in a newspaper of general circulation within the district not less than three (3) times, at least ten (10) days before the date set for the hearing, and in addition thereto shall post a copy of said notice in at least one (1) public place within the district.

At the time and place fixed for such hearing any owner of land situated within the district, or any other interested person, may appear and be heard as to his objections to the said proposal.

Following the said public hearing the directors shall, by resolution, either affirm the proposal with or without modification or amendments, or disapprove the proposal stating therein their findings as to the economic feasibility of the proposed improvement or project, the probable cost of said improvement or project, the benefits to be derived therefrom, and whether or not the benefits accruing to lands within the district would exceed the cost of such improvement or project, whether the benefits will be conferred upon all lands within the district or upon only certain lands in the district, in which latter case the lands to be benefited shall be described as to boundaries, ownership, and approximate acreage, and the proposed method of financing such improvement or project.

History.

1957, ch. 226, § 10, p. 508.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion near the beginning of the first paragraph was added by the compiler to conform to the statutory citation style.

§ 42-3711. Appointment of appraisers and appraisal of benefited property.

If the directors, by resolution, determine that the proposed improvement or project should be constructed and that the costs of said improvement or project should be paid by special assessment against the lands benefited by said improvement or project, the directors shall appoint three (3) disinterested residents of the state to act as appraisers. Said appraisers shall inspect the plans and specifications of the said improvement or project and examine all lands likely to be benefited by such project. The appraisers shall make and file with the directors a detailed report showing all tracts of land within the district found to be benefited, together with the acreage thereof, and the name of the record owner, the amount each tract will be benefited, and the amount of assessment to be levied against each such tract.

History.

1957, ch. 226, § 11, p. 508.

§ 42-3712. Hearing on report of appraisers.

Upon receiving the report of the appraisers the directors shall fix a time and place within the district for hearing any complaint that may be made regarding the benefits appraised to any tract of land or the assessment proposed to be levied against any tract of land. A notice of such hearing shall be given as provided in section 42-3710[, Idaho Code].

At the time and place fixed for such hearing the directors shall consider the report of the appraisers and consider and hear any objections filed or voiced thereto.

The directors, by resolution, shall then reject the report of the appraisers or accept the same and ratify it with or without modification or amendments.

History.

1957, ch. 226, § 12, p. 508.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion at the end of the first paragraph was added by the compiler to conform to the statutory citation style.

§ 42-3713. Appeal from approval of project or determination of benefits or assessments.

Any owner of land or person having an interest therein upon which an assessment is proposed to be levied may, within ninety (90) days, take an appeal from the resolution of the directors accepting or ratifying the report of the appraisers, or from the resolution of the directors determining that the proposed improvement or project should be constructed by filing a petition with the district court of the county within which the property is located. Such petition shall set forth objections to the resolution of the directors determining that such project or improvement should be constructed, or to the resolution affirming the report of the appraisers. The said court may require the party to frame the issues, and shall set a time for a hearing. Upon demand of any petitioner the court shall impanel a jury to determine such issues of fact as may be framed. The report of the appraisers as confirmed by the directors shall be prima facie evidence of the facts therein determined, and the petitioner shall have the burden of proof as to such issues. After hearing the cause, either with or without a jury, the court shall make and enter findings, judgment and order confirming the resolution of the directors, with or without amendments or modifications, or may declare the same void in whole.

History.

1957, ch. 226, § 13, p. 508.

§ 42-3714. Assessments entered as tax liens in instalments.

Upon the entering of the resolution and no appeal therefrom being filed within the time allowed for such appeal the directors shall transmit to the county auditor a list of all tracts of land so benefited, together with the amount of the assessment upon each tract, and the name of the owner or owners of each said tract. The county auditor shall immediately enter the same upon the tax rolls of the county against the designated lands, together with the amounts of said assessments. Said assessments shall be subject to the same interest and penalties in case of delinquency as in the case of general taxes, and shall be collected in the same manner as in the case of general taxes, and the lands sold for the collection of said assessment shall be subject to the same right of redemption as lands sold for the collection of general taxes; provided, that the said assessments shall not become due and payable except at such time or times and in such amounts as may be designated by the directors, which designation shall be made to the county auditor by the directors by serving written notice upon the county auditor designating the time and the amount of the assessment, and the amount so designated shall be added by the auditor to the general taxes of the owner or owners of said lands and collected therewith, and providing further, that no one yearly call for assessment by said directors shall be in an amount to exceed ten per cent (10%) of the actual amount necessary to defray the costs of the construction of the said improvement or project. The assessments so levied shall constitute liens against the designated tracts of land.

History.

1957, ch. 226, § 14, p. 508.

§ 42-3715. Lands of state and its subdivision.

In case of lands belonging to the state, county, school district, or other public corporations are benefited by any improvement or project instituted under the provisions of this act, all benefits shall be assessed against said lands and the same shall be paid by the proper authorities at the same time as the assessments are called and paid in the case of private persons.

History.

1957, ch. 226, § 15, p. 508.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” near the middle of the section refer to S.L. 1957, chapter 226, which is compiled as§§ 42-3701 to 42-3717.

§ 42-3716. Additional assessments for maintenance.

Additional assessments for the proper maintenance and/or operation of any improvement or project constructed within the district pursuant to this act may be levied against lands benefited by the improvement or project at the ratio or proportion established in the original assessment. Such aditional [additional] assessments shall be made subject to the same hearing, determinations, confirmance and right of appeal set forth in sections 42-3712, 42-3713 and 42-3714[, Idaho Code].

History.

1957, ch. 226, § 16, p. 508.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” in the first sentence refer to S.L. 1957, chapter 226, which is compiled as§§ 42-3701 to 42-3717.

The bracketed word “additional” was inserted by the compiler to correct the enacting legislation.

The bracketed insertion at the end of this section was added by the compiler to conform to the statutory citation style.

§ 42-3717. Discontinuance — Dissolution of districts.

At any time after three (3) years after the organization of a district under the provisions of this chapter any twenty-five (25) qualified electors or owners of land lying within the boundaries of such district or, if less than twenty-five (25) owners of land or qualified electors reside within the boundaries of such district it would be deemed sufficient if two-thirds (2/3) of the resident group, may file a petition with the state soil and water conservation commission requesting that the operations of the district be terminated and the existence of the district discontinued. After such petition has been received by the state soil and water conservation commission it shall give notice of the holding of an election, subject to the provisions of section 34-106, Idaho Code, which the said commission shall supervise and govern the conduct in accordance with the provisions of chapter 14, title 34, Idaho Code. The question to be submitted by ballots upon which the words “For terminating the existence of the (name of the watershed improvement district to be here inserted)” and “Against terminating the existence of the (name of the watershed improvement district to be inserted here)” shall appear with a square before each proposition, and a direction to insert an X mark in the square before one or the other of said propositions as the voter may favor or oppose discontinuance of such district. All qualified electors who own land or reside within the proposed district shall be eligible to vote in said election. No informality in the conduct of such election or in any matters relating thereto shall invalidate said election or the result thereof if notice thereof shall have been given as herein provided, and said election shall have been fairly conducted.

The state soil and water conservation commission shall certify the result of such election to the directors of the district. If the state soil and water conservation commission shall certify that a majority of the votes cast in said election favor the discontinuance of the existence of the district, the directors of the district shall forthwith proceed to terminate the affairs of the district. Any moneys remaining in the treasury of said district following the winding up of the affairs of the district shall be paid by the directors into the state treasury. The directors shall file an application duly verified with the secretary of state for the discontinuance of such district which shall recite that the affairs of the district have been wound up, and shall set forth a full accounting of the winding up of the affairs of said district. The secretary of state shall issue to the directors a certificate of dissolution, and shall record said certificate in his office.

The state soil and water conservation commission shall not entertain petitions for the discontinuance of any district nor conduct elections upon such petitions more often than once in three (3) years.

History.

(2) Provided however, any district that fails or has ceased to function for two (2) or more years may be dissolved by the board or boards of county commissioners of the county or counties in which it is located. The county commissioners may initiate such action upon their own volition, or the action may be initiated by petition. History.

1957, ch. 226, § 17, p. 508; am. 1995, ch. 118, § 75, p. 417; am. 2010, ch. 279, § 32, p. 719; am. 2016, ch. 295, § 1, p. 826.

STATUTORY NOTES

Cross References.

State soil and water conservation commission,§ 22-2718.

Amendments.

The 2010 amendment, by ch. 279, substituted “state soil and water conservation commission” for “state soil conservation commission”; and near the end of the first sentence in the first paragraph, substituted “requesting” for “praying.”

The 2016 amendment, by ch. 295, inserted “— Dissolution” in the section heading; added the subsection (1) designation; and added subsection (2).

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Section 18 of S.L. 1957, ch. 226 read: “If any portion of this act shall be declared unconstitutional, it shall not invalidate the other provisions thereof.”

Effective Dates.

Section 19 of S.L. 1957, ch. 226 declared an emergency. Approved March 15, 1957.

Section 2 of S.L. 2016, ch. 295 declared an emergency. Approved March 30, 2016.

Chapter 38 ALTERATION OF CHANNELS OF STREAMS

Sec.

§ 42-3801. Legislative intent — Stream channels — Alteration.

The legislature of the state of Idaho hereby declares that the public health, safety and welfare requires that the stream channels of the state and their environments be protected against alteration for the protection of fish and wildlife habitat, aquatic life, recreation, aesthetic beauty, and water quality. No alteration of any stream channel shall hereafter be made unless approval therefor has been given as provided in this act.

History.

1971, ch. 337, § 1, p. 1304.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” refer to S.L. 1971, chapter 337, which is compiled as§§ 42-3801 to 42-3810. The reference probably should be to “this chapter,” being chapter 38, title 42, Idaho Code.

CASE NOTES

In General.

Section 42-3801 et seq., sometimes known as the Stream Protection Act, regulates alterations of all streams and channels of this state, including navigable streams and channels, and puts the primary responsibility for administration of the act in the department of water resources. Ritter v. Standal, 98 Idaho 446, 566 P.2d 769 (1977).

Prior Alterations.

A rock-filled jetty installed in the summer of 1960 to serve as a breakwater in a lake was not in violation of§§ 42-3801 to 42-3810 since the statute was enacted in 1971. Randall v. Ganz, 96 Idaho 785, 537 P.2d 65 (1975).

Cited

West v. Smith, 95 Idaho 550, 511 P.2d 1326 (1973); Ritter v. Standal, 99 Idaho 614, 586 P.2d 1058 (1978).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-3802. Definitions.

Whenever used in this act, the term:

“Person” means any individual, partnership, company, corporation, municipality, county, state or federal agency, or other entity proposing to alter a stream channel.
“Alter” means to obstruct, diminish, destroy, alter, modify, relocate, or change the natural existing shape or direction of water flow of any stream channel within or below the mean high watermark thereof.
“Board” means the Idaho water resource board.
“Stream channel” means a natural watercourse of perceptible extent, with definite bed and banks, which confines and conducts continuously flowing water. Ditches, canals, laterals and drains that are constructed and used for irrigation or drainage purposes are not stream channels.
“Department” means the Idaho department of water resources.
“Director” means the director of the Idaho department of water resources.
“Plans” means maps, sketches, engineering drawings, word descriptions and specifications sufficient to describe the extent, nature and location of the proposed stream channel alteration and the proposed method of accomplishing same.
“Mean high watermark” means a water level corresponding to the natural or ordinary high watermark and is the line which the water impresses on the soil by covering it for sufficient periods of time to deprive the soil of its terrestrial vegetation and destroy its value for commonly accepted agricultural purposes.

History.

1971, ch. 337, § 2, p. 1304; am. 1974, ch. 20, § 33, p. 533; am. 1994, ch. 292, § 1, p. 912; am. 2004, ch. 191, § 2, p. 601.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” in the introductory paragraph refer to S.L. 1971, chapter 337, which is compiled as§§ 42-3801 to 42-3810. The reference probably should be to “this chapter,” being chapter 38, title 42, Idaho Code.

Effective Dates.

Section 4 of S.L. 2004, ch. 191 declared an emergency. Approved March 23, 2004.

CASE NOTES

Cited

Smith v. King Creek Grazing Ass’n, 105 Idaho 644, 671 P.2d 1107 (Ct. App. 1983).

§ 42-3803. Alteration of channels — Permit required — Plans.

No person shall engage in any project or activity which will alter a stream channel without first applying to and receiving a permit therefor from the director. Such application shall be submitted not less than sixty (60) days prior to the intended date of commencement of construction of such stream channel alteration and shall be upon forms to be furnished by the director or in such other form as deemed appropriate by memorandum of agreement with other state and federal agencies and shall be accompanied by plans of the proposed stream channel alteration and the statutory filing fee.
The board shall provide that each permit granted shall show whether it constitutes a permit from the department of lands as authorized by the department of lands, or whether an additional permit from the department of lands shall be required.
The board may adopt, revise and rescind such rules and regulations and issue such general orders as may be necessary to effectuate the purposes and policy of this chapter within the limitations and standards set forth in this chapter. Rules, regulations and orders adopted or issued pursuant to this section may include, but are not limited to, minimum standards to govern projects or activities for which a permit or permits have been received under this chapter and regulations governing procedures for processing applications and issuing permits under this chapter. Minimum standards and procedural regulations shall not be adopted pursuant to this section until after they have been offered for review and comment to other state agencies having an interest in activities regulated under this chapter. Any standards, rules, regulations and orders adopted or issued pursuant to this section shall be promulgated in accordance with the provisions of chapter 52, title 67, Idaho Code, to the extent that the provisions of chapter 52, title 67, Idaho Code, are not inconsistent herewith.
The board may, by regulation, dispense with procedural requirements for permit application and approval contained in this chapter for projects and activities which, in all respects, at least meet minimum standards adopted pursuant to this section.

History.

1971, ch. 337, § 3, p. 1304; am. 1972, ch. 137, § 1, p. 303; am. 1974, ch. 20, § 34, p. 533; am. 1976, ch. 150, § 1, p. 539; am. 1994, ch. 292, § 2, p. 912.

CASE NOTES

Constitutional and Statutory Authority.

Subsection (b) recognizes the constitutional and statutory authority of the state land board and the state department of lands over the beds of navigable waters. Ritter v. Standal, 98 Idaho 446, 566 P.2d 769 (1977).

Effect of Act.

If this act had been in effect when construction of fish ponds in an estuary began, it would not have placed exclusive control over the alteration of navigable streams within the department of water resources or its predecessors, and the sole approval of the department would not have constituted consent of the sovereign to fill in the estuary bed. Ritter v. Standal, 98 Idaho 446, 566 P.2d 769 (1977).

Cited

Ritter v. Standal, 99 Idaho 614, 586 P.2d 1058 (1978); Higginson v. Westergard, 100 Idaho 687, 604 P.2d 51 (1979).

§ 42-3804. Application — Review by director.

Upon the receipt of any application with accompanying plans, it shall be the duty of the director to examine same and to furnish copies of the application and plans to, and consult with, other state agencies having an interest in the stream channel to determine the likely effect of the proposed stream channel alteration upon the fish and wildlife habitat, aquatic life, recreation, aesthetic beauty, and water quality values of the stream. The director shall furnish a copy of each application and all accompanying materials to the department of lands. Within twenty (20) days of the receipt of copies of such application and plans from the director, such other state agencies shall notify the director whether the proposed stream channel alteration will have an unreasonably detrimental effect upon these stream values and shall include with such notification recommendations of alternate plans, if any, determined by such agency to be reasonable to accomplish the purpose of the proposed stream channel alteration without adversely affecting such stream values.

History.

1971, ch. 337, § 4, p. 1304; am. 1974, ch. 20, § 35, p. 533; am. 1976, ch. 150, § 2, p. 539.

CASE NOTES

Compliance with Permit.

Where it appeared to the trial court that defendant could have interpreted the phrase “area to be altered”, in the application to alter a stream channel, as meaning the eastern bank of the river and that this area was required to have as much water diverted around it as possible rather than having the entire width of the channel diverted, and where the record indicated that at least one of the agents of the department of water resources also interpreted the work area to mean the same area that defendant believed was affected by the terms of the streambed alteration permit, the trial court apparently construed the permit as did defendant, thus there was no error in the conclusion of law that defendant’s work was in compliance with the conditions of the permit. Higginson v. Westergard, 100 Idaho 687, 604 P.2d 51 (1979).

§ 42-3805. Decision of director — Hearing — Review by district court.

Based upon his own investigation and the recommendations and alternate plans of other state agencies, the director shall prepare and forward to the applicant his decision approving the application in whole or in part or upon conditions, or rejecting the application. With regard to applications which could, if issued, affect endowment lands, the director shall deny such applications upon the objection of the state department of lands, or modify the same as recommended by the department. Within fifteen (15) days of the date of mailing of the decision, the applicant shall notify the director if it refuses to modify its plans in accordance with such decision or that it requests a hearing before the board thereon. If requested, such hearing shall be held in accordance with the provisions of chapter 52, title 67, Idaho Code, and rules adopted by the board. The board shall have power to administer oaths and to require the attendance of such witnesses and the production of such books, records and papers as it may desire at the hearing, and for that purpose, the board may apply to the court for subpoena for any witnesses or a subpoena duces tecum to compel the production of any books, records or papers which shall be served and returned in the same manner as a subpoena in a civil case. In case of any disobedience or neglect to obey a subpoena or subpoena duces tecum, it shall be the duty of the district court in any county of this state in which disobedience, neglect or refusal occurs, or any judge thereof, on application by the board, to compel obedience by proceedings for contempt. Upon the conclusion of the hearing and completion of any investigation conducted by the director the board shall enter its findings in writing approving the decision of the director on the application and plans in whole or in part, or upon conditions, or rejecting the decision of the director on said application and plans for such proposed stream channel alteration.

A copy of the board’s findings on the director’s decision shall be mailed to the applicant and to each person or organization who appeared at the hearing and gave testimony in support of or in opposition to the proposed stream channel alteration. Any applicant or other person appearing at a hearing shall have the right to have the proceedings of the board and the decision of the director reviewed by the district court in the county where the stream channel alteration is proposed. With the exception that the matter may be reviewed by the district court in the county where the stream channel alteration is proposed, judicial review shall be had pursuant to chapter 52, title 67, Idaho Code.

History.

1971, ch. 337, § 5, p. 1304; am. 1974, ch. 20, § 36, p. 533; 1976, ch. 150, § 3, p. 539; am. 1980, ch. 238, § 21, p. 526; am. 1993, ch. 216, § 39, p. 587. STATUTORY NOTES

Compiler’s Notes.

§ 42-3806. Existing rights unaffected — Where permit not required.

This act shall not operate or be so construed as to impair, diminish, control or divest any existing or vested water rights acquired under the laws of the state of Idaho or the United States, nor to interfere with the diversion of water from streams under existing or vested water right or water right permit for irrigation, domestic, commercial or other uses as recognized and provided for by Idaho water laws.

No permit shall be required by the state or any agency or political subdivision thereof, from a water user or his agent to clean, maintain, construct in, or repair any stream channel, diversion structure, canal, ditch, drain or lateral. No permit shall be required by the state or any agency or political subdivision thereof, from a water user or his agent to remove any obstruction from any stream channel, if such obstruction interferes with, or is likely to interfere with, the delivery of, or use of, water under any existing or vested water right, or water right permit.

Nothing in this section shall be construed to affect the provisions of chapter 10, title 46, Idaho Code, or to exempt a water user or his agent from compliance with any applicable local flood plain ordinance adopted pursuant to section 46-1022, Idaho Code.

History.

1971, ch. 337, § 6, p. 1304; am. 2004, ch. 191, § 3, p. 601; am. 2011, ch. 261, § 1, p. 707.

STATUTORY NOTES

Amendments.

The 2011 amendment, by ch. 261, in the second paragraph, twice inserted “by the state or any agency or political subdivision thereof” and added the last paragraph.

Compiler’s Notes.

The words “this act” at the beginning of the section refer to S.L. 1971, chapter 337, which is compiled as§§ 42-3801 to 42-3810. The reference probably should be to “this chapter,” being chapter 38, title 42, Idaho Code.

Effective Dates.

Section 4 of S.L. 2004, ch. 191 declared an emergency. Approved March 23, 2004.

§ 42-3807. Reservoirs — Port districts — Exempt.

This act shall not apply to any existing, proposed, or future reservoir projects. This act shall not apply to that portion of any continuous waterway system which will float commercial tug and barge vehicles to ports handling transoceanic traffic, and which is within or adjacent to any port district now existing or hereafter formed under the provisions of title 70, Idaho Code.

History.

1971, ch. 337, § 7, p. 1304.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” in the first and second sentences refer to S.L. 1971, chapter 337, which is compiled as§§ 42-3801 to 42-3810. The reference probably should be to “this chapter,” being chapter 38, title 42, Idaho Code.

§ 42-3808. Emergencies — Waiver by director.

When emergency situations exist requiring immediate action to protect life or property including growing crops, the director may waive the provisions of this act upon request; providing, however, that the extent of stream channel alteration shall be limited only to that amount of work deemed necessary by the director to safeguard life or property including growing crops during the period of emergency.

History.

1971, ch. 337, § 8, p. 1304.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” near the middle of the section refer to S.L. 1971, chapter 337, which is compiled as§§ 42-3801 to 42-3810. The reference probably should be to “this chapter,” being chapter 38, title 42, Idaho Code.

§ 42-3809. Penalty for violation — Enforcement procedure — Injunctive relief.

Any person who violates any of the provisions of this chapter, any regulation, rule, order or standard of the board promulgated pursuant to section 42-3803, Idaho Code, or of any order or condition of approval of the director issued pursuant thereto, where a copy of the order has been served upon said person in person or by certified mail and said person fails to comply therewith within the time therein provided, or within ten (10) days of such service if not otherwise provided, shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than one hundred fifty dollars ($150) nor more than five hundred dollars ($500); provided further, that each day such violation of an order or condition of approval has taken place shall constitute a separate offense punishable by a fine of not less than one hundred fifty dollars ($150) for each day until such activity is abated or voluntarily ceased. Any stream channel alteration engaged in by any person without approval having been obtained therefor as prescribed in this act is hereby declared to be a public nuisance and shall be subject to proceedings for immediate abatement.
When the director of the department of water resources determines that any person is in substantial violation of any provision of this chapter or any rule, permit, certificate, condition of approval or order issued or promulgated pursuant to this chapter, the director may commence an administrative enforcement action by issuing a written notice of violation in accordance with the provisions of section 42-1701B, Idaho Code. Provided however, that no civil or administrative proceeding may be brought to recover for a violation of any provision of this chapter or a violation of any rule, permit or order issued or promulgated pursuant to this chapter, more than two (2) years after the director had knowledge or ought reasonably to have had knowledge of the violation. The director shall have authority and it shall be his duty to seek a temporary injunction from the appropriate district court to restrain a person from altering a stream channel until approval therefor has been obtained by the person as provided in this act.

History.

1971, ch. 337, § 9, p. 1304; am. 1972, ch. 137, § 2, p. 303; am. 1974, ch. 20, § 37, p. 533; 1978, ch. 327, § 1, p. 822; am. 1980, ch. 331, § 2, p. 854; am. 1994, ch. 292, § 3, p. 912; am. 1998, ch. 173, § 10, p. 595; am. 2012, ch. 121, § 1, p. 337.

STATUTORY NOTES

Cross References.

Department of water resources,§ 42-1701 et seq.

Amendments.

The 2012 amendment, by ch. 121, added the second sentence in subsection (2).

Compiler’s Notes.

The words “this act” near the end of subsections (1) and (2) refer to S.L. 1971, chapter 337, which is compiled as§§ 42-3801 to 42-3810. The reference probably should be to “this chapter,” being chapter 38, title 42, Idaho Code.

§ 42-3810. Restoration of stream channel — Mitigation of damages.

Any party convicted of unlawful stream channel alteration shall, in addition to the penalties provided for in section 42-3809[, Idaho Code,] of this act, be directed by the court to restore the stream channel to as near its original condition as possible or to effect such other measures as recommended by the director toward mitigation of damages.

History.

1971, ch. 337, § 10, p. 1304.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Section 11 of S.L. 1971, ch. 337 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 12 of S.L. 1971, ch. 337 provided that “this act shall be in full force and effect on and after July 1, 1971.”

§ 42-3811. Violation of act a misdemeanor.

Any person who violates any provision of this act or who violates any regulation, rule, order or standard of the board or director relating to the use of vacuum or suction dredges capable of moving two (2) or less cubic yards of material per hour shall be guilty of a misdemeanor.

History.

I.C.,§ 42-3811, as added by 1980, ch. 331, § 3, p. 854.

STATUTORY NOTES

Cross References.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

Compiler’s Notes.

The term “this act” in this section refers to S.L. 1980, chapter 331, which is codified as§§ 36-1301, 42-3809, 42-3811, and 42-3812. The reference probably should be to “this chapter,” being chapter 38, title 42, Idaho Code.

§ 42-3812. Enforcement of authority.

The director of the department of water resources is hereby vested with the power and authority to enforce the provisions of chapter 38, title 42, Idaho Code, and rules and regulations promulgated pursuant to it. The director may delegate to employees of the department of water resources authority to issue Idaho uniform citations, as provided for by the rules of the court for magistrates division of the district court and district court, to violators of the provisions of chapter 38, title 42, Idaho Code, and rules and regulations promulgated pursuant to it.

History.

I.C.,§ 42-3812, as added by 1980, ch. 331, § 4, p. 854; am. 1994, ch. 292, § 4, p. 912.

STATUTORY NOTES

Effective Dates.

Section 5 of S.L. 1980, ch. 331 declared an emergency. Approved April 2, 1980.

§ 42-3813. Enforcement procedure — Notice — Consent order

Civil action. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised I.C.,§ 42-3813, as added by 1994, ch. 292, § 5, p. 912, was repealed by S.L. 1998, ch. 173, § 11, effective July 1, 1998.

Chapter 39 INJECTION WELLS

Sec.

§ 42-3901. Ground water as public resource — Protection.

The legislature of the state of Idaho hereby declares the ground water of this state to be a public resource which must be protected against unreasonable contamination or deterioration of quality to preserve such waters for diversion to beneficial uses; that in order to protect such waters against contamination or deterioration in quality it is necessary that the construction and use of injection wells be controlled as provided in this chapter.

History.

1971, ch. 301, § 1, p. 1235; am. 1984, ch. 155, § 1, p. 370.

STATUTORY NOTES

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Common Law Aspects of Shale Oil and Gas Development, Christopher S. Kulander. 49 Idaho L. Rev. 367 (2013).

Hydraulic Fracturing: Trade Secrets and the Mandatory Disclosure of Fracturing Water Composition, Keith B. Hall. 49 Idaho L. Rev. 399 (2013).

Up in the Air: The Future of Environmental Management for Hydraulic Fracturing Will Be About Air, Not Water, Jim Wedeking. 49 Idaho L. Rev. 437 (2013).

§ 42-3902. Definitions.

Whenever used in this chapter:

“Aquifer” means any geologic formation that will yield water to a well in sufficient quantities to make production of water from the formation feasible for beneficial use, except when the water in such formation results solely from injection through a deep or shallow injection well.
“Class II injection well” means a deep injection well used to inject fluids:
1. Which are brought to the surface in connection with natural gas storage operations, or conventional oil or natural gas production and may be commingled with waste waters from gas plants, dehydration stations, or compressor stations which are an integral part of production operations, unless those waters are classified as a hazardous waste at the time of injection;
2. For enhanced recovery of oil or natural gas; or
3. For storage of hydrocarbons which are liquid at standard temperature and pressure.
“Deep injection well” means an injection well which is more than eighteen (18) feet in vertical depth below land surface.
“Director” means the director of the department of water resources.
“Drinking water source” means an aquifer which contains water having less than ten thousand (10,000) mg/l total dissolved solids and has not been exempted from this designation by the director of the department of water resources.
“Fluid” means any material or substance which flows or moves whether in a semisolid, liquid, sludge, gaseous or any other form or state.
“Formation” means a body of consolidated or unconsolidated rock characterized by a degree of lithologic homogeneity which is mappable at the earth’s surface or traceable in the subsurface.
“Hazardous waste” means any fluid or combination of fluids, excluding radioactive wastes, which because of quantity, concentration or characteristics (physical, chemical or biological) may:
1. Cause or significantly contribute to an increase in deaths or an increase in serious, irreversible or incapacitating reversible illness; or
2. Pose a substantial threat to human health or to the environment if improperly treated, stored, disposed of, or managed. Such wastes include, but are not limited to, materials which are toxic, corrosive, ignitable, or reactive, or materials which may have mutagenic, teratogenic, or carcinogenic properties, but do not include solid or dissolved material in domestic sewage or solid or dissolved material in irrigation return flows.
“Injection” means the subsurface emplacement of fluids through an injection well, but excludes the following:
1. The underground injection of natural gas for purposes of storage; and
2. The underground injection of fluids or propping agents, other than diesel fuels, pursuant to hydraulic fracturing operations related to oil, gas or geothermal production activities.
“Injection well” means any feature that is operated to allow injection which also meets at least one (1) of the following criteria:
1. A bored, drilled or driven shaft whose depth is greater than the largest surface dimension;
2. A dug hole whose depth is greater than the largest surface dimension;
3. An improved sinkhole; or
4. A subsurface fluid distribution system.
“Irrigation waste water” means excess surface water from agricultural fields generated during any agricultural operation, including runoff of irrigation tailwater, as well as natural drainage resulting from precipitation, snowmelt and floodwaters.
“Licensed driller” means any person holding a valid license to drill water wells in Idaho as provided and defined in section 42-238, Idaho Code.
“Operate” means to allow fluids to enter an injection well by action or by inaction of the operator.
“Operator” means any individual, group of individuals, partnership, company, corporation, municipality, county, state agency, taxing district or federal agency who operates or proposes to operate any injection well.
“Owner” means any individual, group of individuals, partnership, company, corporation, municipality, county, state agency, taxing district, or federal agency owning land on which any injection well exists or is proposed to be constructed.
“Radioactive material” means any material, solid, liquid or gas which emits radiation spontaneously.
“Radioactive waste” means any fluid which contains radioactive material in concentrations which exceed those established for discharges to water by 10 CFR 20.
“Sanitary waste” means any fluid generated through residential (domestic) activities, such as food preparation, cleaning and personal hygiene. The term does not include industrial, municipal, commercial or other nonresidential process fluids.
“Shallow injection well” means an injection well which is less than or equal to eighteen (18) feet in vertical depth below land surface.
“Surface runoff water” means runoff water from the natural ground surface and cropland. Runoff from urbanized areas, such as streets, parking lots, airports, and runoff from animal feedlots, agricultural processing facilities and similar facilities are not included within the scope of this term.

Provided however, that “injection well” does not mean or include any well used for oil, gas or geothermal production activities, other than one into which diesel fuels are injected pursuant to hydraulic fracturing operations.

History.

1971, ch. 301, § 2, p. 1235; am. 1984, ch. 155, § 2, p. 370; am. 2001, ch. 103, § 84, p. 253; am. 2007, ch. 83, § 9, p. 221; am. 2011, ch. 110, § 2, p. 287; am. 2012, ch. 111, § 5, p. 302; am. 2013, ch. 44, § 1, p. 91; am. 2014, ch. 107, § 1, p. 313.

STATUTORY NOTES

Amendments.

The 2007 amendment, by ch. 83, in subsection (15), deleted “in an unrestricted area” following “discharges to water,” and substituted “by 10 CFR 20” for “by the board of environmental quality under the provisions of chapter 30, title 39, Idaho Code.”

The 2011 amendment, by ch. 110, in subsection (1), substituted “a deep or shallow injection well” for “a waste disposal and injection well”; added present subsection (2) and redesignated the subsequent subsections accordingly; in present subsection (8), added “through an injection well”; rewrote present subsection (9) to the extent that a detailed comparison is impracticable; rewrote present subsection (10), which formerly read: “’Irrigation waste water’ means surplus water diverted from irrigation but not applied to crops or runoff of surplus water from the cropland as a result of irrigation”; in present subsection (18), inserted “residential” and added the last sentence; and deleted former subsection (19), which was the definition for “Waste disposal and injection well.” The 2012 amendment, by ch. 111, in subsection (8), added “but excludes the following” in the introductory paragraph and added paragraphs (a), (b), and (c); and added the proviso at the end of subsection (9).

The 2013 amendment, by ch. 44, added subsection (2) and redesignated former subsections (2) to (19) as present subsections (3) to (20).

The 2014 amendment, by ch. 107, substituted “used for oil” for “drilled for oil” in the paragraph following paragraph (10)(d) and alphabetized the defined terms in subsections (18) and (19).

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 7 of S.L. 2012, ch. 111 declared an emergency. Approved March 23, 2012.

CASE NOTES

Violation of Federal Law.

Government was not required to prove, as an element 42 U.S.C.S. § 300h-2(b)(2), that injection of the water would have an adverse impact on an underground source of drinking water; rather, it had only to prove that defendant willfully failed to comply with a requirement of Idaho’s underground injection control program. United States v. King, 660 F.3d 1071 (9th Cir. 2011), cert. denied, — U.S. —, 132 S. Ct. 2740, 183 L. Ed. 2d 615 (2012).

RESEARCH REFERENCES

Idaho Law Review.

§ 42-3902A. Prohibition of injection of hazardous wastes and of radioactive wastes.

Construction of an injection well to be used for injection of hazardous wastes or of radioactive wastes into or above a drinking water source is prohibited. Injection of hazardous wastes or of radioactive wastes through an existing injection well into or above a drinking water source is prohibited. Any such injection shall subject any person responsible for said activity to the sanctions and penalties of this chapter in addition to all other applicable sanctions and penalties provided by statute or the common law.

History.

I.C.,§ 42-3902A, as added by 1984, ch. 155, § 3, p. 370.

§ 42-3903. Deep injection wells — Construction — Modification — Use — Permit required.

No new deep injection well shall be constructed after the effective date of this act unless a permit therefor has been issued by the director of the department of water resources. No deep injection well existing on the effective date of this act shall be modified after the effective date of this act unless a permit therefor has been issued by the director. No deep injection well existing on the effective date of this act shall continue to be used and maintained after January 1, 1974, unless a permit therefor has been issued by the director.

History.

1971, ch. 301, § 3, p. 1235; am. 1974, ch. 20, § 38, p. 533; am. 2011, ch. 110, § 3, p. 287.

STATUTORY NOTES

Amendments.

The 2011 amendment, by ch. 110, in the section heading, substituted “Deep injection wells” for “Waste disposal and injection wells”; and throughout the section, substituted “deep injection well” for “waste disposal and injection well.”

Compiler’s Notes.

The phrase “the effective date of this act,” appearing four times in this section, refers to the effective date of S.L. 1971, chapter 301, which was effective May 18, 1971.

CASE NOTES

Violation of Federal Law.

§ 42-3903A. Shallow injection wells — Authorization for construction and use.

Construction and use of shallow injection wells shall be authorized by rules and regulations adopted by the water resource board. Shallow injection wells used for the disposal of nonhazardous and nonradioactive sanitary wastes generated in, on, or in conjunction with a single family noncommercial dwelling are exempt from the authorization requirements of this chapter, but shall be subject to the applicable requirements of the Idaho environmental protection and health act of 1972, sections 39-101, et seq., Idaho Code.

History.

I.C.,§ 42-3903A, as added by 1984, ch. 155, § 4, p. 370.

§ 42-3904. Application for permit — Owner — Operator responsible — Notice of construction form.

The owner or operator shall make application to the director of the department of water resources for a permit as provided in this chapter. When a facility is owned by one (1) person but operated by another, it shall be the operator’s duty to obtain a permit. Such application shall be upon forms furnished by the director which shall require information concerning the location and description of the injection well, the quantity, quality, and nature of the material being or proposed to be injected, the description of the underground formation and aquifer into which the material is proposed to be or is being injected, the availability of alternative sources of disposal, and such other information as will enable the director to determine the effect of injection upon the quality of the ground water, the effect upon the beneficial uses of said ground water, the effect upon the public health and the effect upon public benefits derived therefrom, if any. Such application shall be submitted complete with fees as provided in this chapter. Mine shafts used for the disposal of wastes resulting from the mining and concentration process shall be exempt from the permit requirements of this chapter until an inventory and assessment of the contamination potential posed by such operation is completed.
Owners of new shallow injection wells drilled after July 1, 1997, shall submit a notice of construction form to the department of water resources no later than thirty (30) days prior to commencement of construction for each new well. The notice of construction form shall be submitted with the fee as provided in this chapter on a form provided by the department of water resources.

History.

1971, ch. 301, § 4, p. 1235; am. 1974, ch. 20, § 39, p. 533; am. 1984, ch. 155, § 5, p. 370; am. 1997, ch. 208, § 1, p. 624; am. 2011, ch. 110, § 4, p. 287.

STATUTORY NOTES

Amendments.

The 2011 amendment, by ch. 110, deleted the former last sentence in subsection (2), which read: “New shallow injection wells used for disposal of storm water from building roof drains are exempt from the notice of construction filing requirements and fees of this chapter.”

§ 42-3905. Fees — Transmitted to state treasurer.

Fees provided for in this section shall accompany all applications and notice of construction forms. No such application or notice of construction form shall be accepted unless accompanied by a filing fee as provided in this section. A separate application shall be filed for each deep injection well and each shallow injection well for which a permit is required by the rules adopted by the water resource board. The filing fee for each deep injection well requiring a permit shall be two thousand five hundred dollars ($2,500) for a class II injection well and one hundred dollars ($100) for all other deep injection wells, payable to the department of water resources.
The notice of construction form for each new shallow injection well shall be accompanied by a fee of seventy-five dollars ($75.00) payable to the department of water resources.
All fees received under the provisions of this chapter are deemed to be nonrefundable and shall be transmitted to the state treasurer for deposit in the water administration fund [account] as established under the provisions of section 42-238a, Idaho Code, except that fees submitted with applications that do not require a permit shall be returned to the applicant. Fees collected may be used by the director of the department of water resources to carry out the provisions of this chapter.

History.

1971, ch. 301, § 5, p. 1235; am. 1972, ch. 180, § 1, p. 460; am. 1974, ch. 20, § 40, p. 533; am. 1984, ch. 155, § 6, p. 370; am. 1997, ch. 208, § 2, p. 624; am. 2011, ch. 110, § 5, p. 287; am. 2013, ch. 44, § 2, p. 91.

STATUTORY NOTES

Amendments.

The 2011 amendment, by ch. 110, substituted “deep injection well” for “waste disposal and injection well” in the second sentence in subsection (1).

The 2013 amendment, by ch. 44, rewrote the last sentence of subsection (1), which formerly read: “The filing fee for each injection well requiring a permit shall be one hundred dollars ($100) payable to the department of water resources.”

Compiler’s Notes.

The bracketed insertion in subsection (3) was added by the compiler to correct the name of the referenced account.

§ 42-3906. Review by director of department of health and welfare

Recommendation. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised 1971, ch. 301, § 6, p. 1235; am. 1974, ch. 20, § 41, p. 533, was repealed by S.L. 1984, ch. 155, § 7, effective April 2, 1984.

§ 42-3907. Department of water resources — Public notice and investigation.

Upon receipt of an application or other notice to construct, maintain, modify or abandon an injection well, the director shall give public notice as required by the rules and regulations promulgated under authority of this chapter.
The director shall examine each application and shall make an investigation to determine what effect the use of the proposed or existing injection well will have or is having upon the rights of others to use water for beneficial purposes. For purposes of such investigation, the director may conduct a fact finding or investigative hearing. He may apply to the district court of the county in which the well is located for subpoenas requiring the appearance of witnesses and production of books, records, and papers; or he may administer oaths, and take testimony at any place and time. Employees and agents of the department of water resources may make reasonable entry upon any lands in the state for purposes of making investigations and surveys, or for other purposes necessary to carry out the intent of this chapter.

History.

1971, ch. 301, § 7, p. 1235; am. 1974, ch. 20, § 42, p. 533; am. 1984, ch. 155, § 8, p. 370.

§ 42-3908. Permit approving construction and use — Conditions — Rejection of application.

If the director of the department of water resources determines the use of the proposed or existing injection well will not affect the rights of others to use water for beneficial purposes shall issue a permit approving the construction, modification or continued operation of such well. Such permit shall contain conditions, if any, determined to be necessary to protect the public interest in the ground water resource including, but not limited to, the method and manner of operation of the injection well, the period during which the injection well may be operated, a date when such permit shall expire, and periodic reports to the department of water resources of the quality and quantity of the fluids injected. No deep injection well or shallow injection well, as may be required by rules and regulations adopted under this chapter, shall be used unless a valid permit is in effect in accordance with this chapter.

The director shall require, as a condition of every class II injection well permit, that every person who engages in the construction, modification or operation of a well provides evidence of good and sufficient security in the form of a bond, letter of credit or other surety acceptable to the director that ensures that the applicant performs the duties required pursuant to this chapter and properly decommission any well covered by such permit. Good and sufficient security for each injection well shall be in the amount of ten thousand dollars ($10,000) plus one dollar ($1.00) per foot of depth. The security shall be conditioned upon the performance of the owner’s or operator’s duty to comply with the rules of the water resource board with respect to the construction, modification, operation, plugging and decommissioning of each well. The security shall remain in full force and effect until the plugging and decommissioning of the well is approved by the director or the security is released by the director. Well decommissioning shall include reclamation of the well site so that the site is left in a stable, noneroding condition with no impact to any ground water or surface water sources of the state. The director may require additional security of an owner or operator given sufficient reason, such as noncompliance, unusual conditions or other circumstances that suggest a particular well has potential risk or liability in excess of that normally expected.

If the director of the department of water resources determines the use of the proposed or existing injection well will interfere or is interfering with the right of the public to withdraw water for beneficial uses, and the director finds there are no overriding needs existing to justify the use of the injection well, the director may reject the application and forward notice of such rejection to the owner or operator by certified mail.

History.

1971, ch. 301, § 8, p. 1235; am. 1974, ch. 20, § 43, p. 533; am. 1984, ch. 155, § 9, p. 370; am. 2011, ch. 110, § 6, p. 287; am. 2013, ch. 43, § 1, p. 90.

STATUTORY NOTES

Amendments.

The 2011 amendment, by ch. 110, substituted “No deep injection well” for “No waste disposal and injection well” in the last sentence in the first paragraph.

The 2013 amendment, by ch. 43, added the second paragraph.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Idaho Administrative Law: A Primer for Students and Practitioners, Richard Henry Seamon. 51 Idaho L. Rev. 421 (2015).

§ 42-3909. Disapproval of application — Owner or operator entitled to hearing — Procedure — Judicial review.

Any owner or operator aggrieved by the disapproval of an application or by the conditions imposed in a permit shall upon request therefor in writing within thirty (30) days after receipt of notice of such disapproval or conditional approval, be afforded an opportunity for a hearing before the water resources board, such hearing to be conducted in accordance with chapter 52, title 67, Idaho Code, at a place convenient to the owner or operator. Such hearing shall be held for the purpose of determining whether the permit should be issued or whether the conditions imposed in a permit are reasonable, or whether a change in circumstances warrants a change in the conditions imposed in a valid permit. For purposes of such hearing the water resource board shall have power to administer oaths, examine witnesses, and issue in the name of the board subpoenas requiring testimony of witnesses and the production of evidence relevant to any matter in the hearing. A certified transcript of the proceedings and the evidence received at such hearing shall be maintained by the board. The board shall affirm, modify or reject the director’s decision, and make its decision in the form of an order to the director. Judicial review of a final determination by the board may be secured by the owner or operator by filing a petition for review as prescribed by chapter 52, title 67, Idaho Code, in the district court of the county wherein the injection well is situated. The petition for review shall be served upon the chairman of the water resource board and upon the attorney general as provided by the Idaho rules of civil procedure.

History.

1971, ch. 301, § 9, p. 1235; am. 1974, ch. 20, § 44, p. 533; am. 1984, ch. 155, § 10, p. 370.

§ 42-3910. Cancellation of permit — Notice — Hearing — Review.

When the director of the department of water resources has reason to believe the operation and use of an injection well, for which a permit has been issued in accordance with this chapter, is interfering with the right of the public to withdraw water for beneficial uses, or is causing unreasonable contamination or deterioration of the quality of the ground water below the adopted water quality standards of the board of environmental quality, he may cancel such permit. Prior to the cancellation of such permit there shall be a hearing before the water resource board for the purpose of determining whether or not the permit should be cancelled. At such hearing the director of the department of water resources shall be the complaining party. For purposes of such hearing, the board shall have power to administer oaths, examine witnesses and issue subpoenas requiring testimony of witnesses and production of evidence relevant to any matter in the hearing. The hearing shall be conducted in accordance with chapter 52, title 67, Idaho Code, and the board shall provide the owner or operator whose permit is proposed to be cancelled with reasonable notice and the opportunity to be heard in accordance with chapter 52, title 67, Idaho Code. A certified transcript of the proceedings and the evidence received at such hearing shall be maintained by the board. The board shall affirm, modify or reject the director’s decision, and make its decision in the form of an order to the director. Review of a final determination by the board may be secured by the owner or operator by filing a petition for review as prescribed by chapter 52, title 67, Idaho Code, in the district court of the county wherein the injection well is situated. The petition for review shall be served upon the chairman of the water resource board and upon the attorney general as provided by the Idaho rules of civil procedure.

History.

1971, ch. 301, § 10, p. 1235; am. 1974, ch. 20, § 45, p. 533; am. 1984, ch. 155, § 11, p. 370; am. 2001, ch. 103, § 85, p. 253].

§ 42-3911. Failure to obtain required permit or submit required information — Penalty.

Any owner or operator who causes to be constructed or consents either expressly or impliedly to the construction of a new deep injection well without having first obtained a permit therefor from the director of the department of water resources as provided in this chapter shall be guilty of a misdemeanor. Any owner or operator who causes an existing deep injection well to be modified or consents either expressly or impliedly to the modification of an existing deep injection well without having first obtained a permit therefor from the director of the department of water resources as provided in this chapter shall be guilty of a misdemeanor. From and after January 1, 1974, any owner or operator who continues to operate and maintain or consents either expressly or impliedly to the continued operation and maintenance of an existing deep injection well without having first obtained a permit therefor from the director of the department of water resources as provided in this chapter shall be guilty of a misdemeanor; provided, that no misdemeanor shall occur where an owner or operator applied for a permit before January 1, 1974, and the director of the department of water resources has not approved or rejected said application. Any owner or operator of a proposed or existing injection well who violates the rules and regulations of the water resource board shall be guilty of a misdemeanor. Each and every day that such activity is carried on in violation of this section shall constitute a separate and distinct offense.

History.

1971, ch. 301, § 11, p. 1235; am. 1974, ch. 20, § 46, p. 533; am. 1984, ch. 155, § 12, p. 370; am. 2011, ch. 110, § 7, p. 287.

STATUTORY NOTES

Amendments.

The 2011 amendment, by ch. 110, throughout the section, substituted “deep injection well” for “waste disposal and injection well.”

§ 42-3912. Drillers — Must be licensed — Approved permits — Certified copies.

It shall be unlawful for any person not a licensed driller to construct a new deep injection well or modify an existing deep injection well, except that a driller’s license is not required for the construction of a driven mine shaft or dug hole for the purposes of this chapter. All licensed drillers shall obtain a certified copy of the approved permit from the director of the department of water resources prior to construction of any new deep injection well or prior to the modification of any existing deep injection well. Failure by a licensed driller to comply with this section shall constitute cause for revocation of a well driller’s license in accordance with section 42-238, Idaho Code.

History.

1971, ch. 301, § 12, p. 1235; am. 1974, ch. 20, § 47, p. 533; am. 1984, ch. 155, § 13, p. 370; am. 2011, ch. 110, § 8, p. 287.

STATUTORY NOTES

Amendments.

The 2011 amendment, by ch. 110, throughout the section, substituted “deep injection well” for “waste disposal and injection well.”

§ 42-3913. Minimum standards — Rules and regulations — Adoption.

The water resource board shall adopt minimum standards for the construction or abandonment of deep injection wells. Such standards shall require each deep injection well to be so constructed as to protect the ground water of this state from waste and unreasonable contamination. Each licensed well driller or operator will be furnished with a copy of the adopted standards, and will be required to construct each deep injection well drilled after the effective date of said rules and regulations in compliance with the determined standards. Failure by a licensed driller to comply with such standards shall constitute cause for revocation of the well driller’s license in accordance with section 42-238, Idaho Code.

The water resource board shall also adopt minimum standards for the construction and abandonment of shallow injection wells. Any person who constructs or abandons a shallow injection well without complying with such standards shall be guilty of a misdemeanor.

History.

1971, ch. 301, § 13, p. 1235; am. 1974, ch. 20, § 48, p. 533; am. 1984, ch. 155, § 14, p. 370; am. 2011, ch. 110, § 9, p. 287.

STATUTORY NOTES

Cross References.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

Amendments.

The 2011 amendment, by ch. 110, throughout the first paragraph, substituted “deep injection well” for “waste disposal and injection well” or similar language.

§ 42-3914. Board to establish standards.

The provisions of this chapter shall not prevent the present or future use of any existing or proposed injection well which is used exclusively for disposal of irrigation waste water or of surface runoff water where such disposal does not adversely affect drinking water sources, and state or local government entities involved in highway and street construction and maintenance shall be exempt from fees and permit applications for shallow injection wells. The water resource board shall establish criteria and standards for the injection of fluids under the provisions of this chapter which shall not become valid and enforceable until adopted under provisions of the administrative procedures act, chapter 52, title 67, Idaho Code.

History.

1971, ch. 301, § 14, p. 1235; am. 1974, ch. 20, § 49, p. 577; am. 1984, ch. 155, § 15, p. 370.

Whenever the director finds that any person has constructed, operated, maintained, converted, plugged, abandoned or conducted any other activity in a manner that results in the unauthorized injection of a hazardous waste or of a radioactive waste through an injection well or whenever the director finds that any person proposes to do or to allow any such acts, then the director may issue a cease and desist order. The cease and desist order shall become effective and final upon issuance thereof. The director shall serve forthwith in accordance with the Idaho rules of civil procedure a certified copy of any such order on that person. That person shall have the right to a hearing in accordance with section 42-1701A, Idaho Code.

History.

I.C.,§ 42-3918, as added by 1984, ch. 155, § 19, p. 370.

§ 42-3919. Criminal penalty — Willful violation — Violation of cease and desist order.

Any person who willfully constructs, operates, maintains, converts, plugs, abandons, or conducts any other activity in a manner that results or may result in the injection of a hazardous waste or of a radioactive waste through an injection well in violation of section 42-3902A, Idaho Code, or any person who willfully violates any cease and desist order after the same has been served on that person is guilty of a misdemeanor and:

May be sentenced to jail for a period not to exceed six (6) months;
May be fined in an amount not to exceed five thousand dollars ($5,000) for each offense; and
Each day of violation shall constitute a separate offense.

History.

I.C.,§ 42-3919, as added by 1984, ch. 155, § 20, p. 370.

STATUTORY NOTES

Effective Dates.

Section 21 of S.L. 1984, ch. 155 declared an emergency. Approved April 2, 1984.

Chapter 40 GEOTHERMAL RESOURCES ACT

Sec.

§ 42-4001. Short title.

This act may be known and cited as the Idaho Geothermal Resources Act.

History.

1972, ch. 301, § 2, p. 749.

STATUTORY NOTES

Cross References.

Geothermal resources land leases,§ 47-1601 et seq.

Legislative Intent.

Section 1 of S.L. 1972, ch. 301 read: “It is hereby declared that the state of Idaho claims the right to regulate the development and use of all of the geothermal resources within this state and that geothermal resources are natural resources of limited quantity and of a unique value to all of the people of the state.

“The legislature of the state of Idaho further declares that the geothermal resources of this state may provide an outstanding opportunity for enhancement of our economy and quality of life with a minimum of environmental degradation through a utilization of this energy source. It is also recognized that the process of utilization and development of our geothermal resources on a large scale may be associated with risks to the maximum sustained yield from these resources, risks to our valuable groundwater resources, and risks to the environment in the immediate locality of and around the installations at which such utilization is done.

“The legislature further finds that there is presently substantial interest in the geothermal resources of this state, that regulation in the public interest is imperative, and that regulation must take effect at an early date.

“The legislature does therefore declare that it is the policy and purpose of this state to maximize the benefits to the entire state which may be derived from the utilization of our geothermal resources, while minimizing the detriments and costs of all kinds which could result from their utilization. This policy and purpose is embodied in this act which provides for the immediate regulation of geothermal resource exploration and development in the public interest.”

Compiler’s Notes.

The words “this act” refer to S.L. 1972, chapter 301, which is compiled as§§ 42-4001 to 42-4015.

Effective Dates.

Section 18 of S.L. 1972, ch. 301 declared an emergency. Approved March 27, 1972.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — A Primer on Groundwater Law, Joseph W. Dellapenna. 49 Idaho L. Rev. 265 (2013).

§ 42-4002. Definitions.

Whenever used in this act the term:

“Department” means the Idaho department of water resources.
“Director” means the director of the Idaho department of water resources.
“Geothermal resource” means the natural heat energy of the earth, the energy, in whatever form, which may be found in any position and at any depth below the surface of the earth present in, resulting from, or created by, or which may be extracted from such natural heat, and all minerals in solution or other products obtained from the material medium of any geothermal resource. Ground water having a temperature of two hundred twelve (212) degrees Fahrenheit or more in the bottom of a well shall be classified as a geothermal resource. Geothermal resources are found and hereby declared to be sui generis, being neither a mineral resource nor a water resource, but they are also found and hereby declared to be closely related to and possibly affecting and affected by water and mineral resources in many instances.
“Geothermal area” means the same general land area which, in its subsurface, is underlaid or reasonably appears to be underlaid by geothermal resources from or in a single reservoir, pool, or other source or interrelated sources, as such area or areas may be from time to time designated by the director.
“Material medium” means any substance, including, but not limited to, naturally heated fluids, brines, associated gases, and steam, in whatever form, found at any depth and in any position below the surface of the earth, which contains or transmits the natural heat energy of the earth, but excluding petroleum, oil, hydrocarbon gas, or other hydrocarbon substances.
“Permit” means a permit issued pursuant to this act for the construction and operation of any well or injection well.
“Person” means any individual, natural person, general or limited partnership, joint venture, association, cooperative organization, corporation whether domestic or foreign, agency or subdivision of this or any other state, or any municipal or quasi-municipal entity whether or not it is incorporated.
“Waste” means any physical waste including, but not limited to:
1. Underground waste resulting from the inefficient, excessive or improper use or dissipation of geothermal energy in or of any geothermal resource pool, reservoir, or other source; or the locating, spacing, construction, equipping, operating, or producing of any well in a manner which results, or tends to result, in reducing the quantity of geothermal energy to be recovered from any geothermal area in this state;
2. The inefficient above-ground transporting and storage of geothermal energy; and the locating, spacing, equipping, operating, or producing of any well or injection well in a manner causing, or tending to cause, unnecessary or excessive surface loss or destruction of geothermal energy;
3. The escape into the open air, from a well, of steam or hot water in excess of what is reasonably necessary in the efficient development or production of a well.
“Well” means any excavation or other alteration in the earth’s surface or crust by means of which the energy of any geothermal resource and/or its material medium is sought or obtained.
“Injection well” means any special well, converted producing well or reactivated or converted abandoned well employed for injecting material into a geothermal area to maintain pressures in a geothermal reservoir, pool, or other source, or to provide new material or to serve as a material medium therein, or for reinjecting any material medium or the residue thereof or any by-product of geothermal resource exploration or development into the earth. (k) “Board” means the Idaho water resource board.

History.

1972, ch. 301, § 3, p. 749; am. 1974, ch. 20, § 50, p. 533; am. 1974, ch. 297, § 1, p. 1753; am. 1987, ch. 347, § 14, p. 741.

STATUTORY NOTES

Cross References.

Water resource board,§ 42-1732.

Compiler’s Notes.

The words “this act” in the introductory paragraph and in subsection (f) refer to S.L. 1972, chapter 301, which is compiled as§§ 42-4001 to 42-4015.

§ 42-4003. Permits — Application — Fee — Exceptions.

Any person who, as owner or operator, proposes to construct a well or to alter a well or to construct or to alter an injection well shall first apply to the director for a geothermal resource well permit, except as provided in subsection (2) of this section.
The use of ground water classified as a geothermal resource or material medium for the development and operation of oil and gas wells permitted under section 47-316, Idaho Code, shall not be subject to the provisions of this chapter. However, the director of the department of water resources may initiate a contested case in accordance with the provisions of chapter 52, title 67, Idaho Code, and the rules of procedure promulgated by the department, if the department has reason to believe that an oil and gas well will cause, is causing or has caused, significant negative impacts to pressure, temperature, quality necessary for beneficial use or quantity of water available to water rights existing at the time of the development of the oil and gas well or to a geothermal resource that can be beneficially used. The evidence of causation must come from the department or be credible information from a water right holder or a geothermal resource permit holder existing at the time of the development of the oil and gas well. It shall be the burden of the entity operating the oil and gas well to establish that it will not cause, is not causing and has not caused significant negative impacts to pressure, temperature, quality necessary for beneficial use or quantity of water available to existing water rights existing at the time of the development of the oil and gas well or to geothermal resource that can be beneficially used. If the director determines that the well will cause, is causing or has caused significant negative impacts to pressure, temperature, quality necessary for beneficial use or quantity of water available to a water right existing at the time of the development of the oil and gas well or to a geothermal resource that can be beneficially used, the director may order the operator to take measures to mitigate those impacts.
Such application required pursuant to subsection (1) of this section shall set out the following information on a form or forms prescribed by the department:
1. The name of any person making the application; if such person is a partnership, joint-venture, association, or other unincorporated group of corporate or natural persons, the names and places of domicile of each of the constituent persons who have general partnership responsibility and authority for and in such unincorporated group of persons; if any person named on a permit application is a corporation, its place of domicile, the names and places of domicile of its principal executive officers, and the names and places of domicile of any person or persons owning a thirty percent (30%) or greater interest, whether legal, beneficial, or a combined legal and beneficial interest, in such corporate person; if the applicant is making an application as an agent for any other person, it shall be clearly so stated and any person who is the applicant’s principal shall be subject to each and all of the disclosure requirements of this subsection; for purposes of this subsection, the domicile of a corporation is at all of the following:
  1. The place of incorporation;
  2. The principal place of business;
  3. The place, by city and state, of the home office, and in any instance where domicile is required to be disclosed all of these places shall be specified. (b) The location of the proposed well; and/or the injection well described particularly by the quarter-quarter section according to the township and range system of the United States public lands survey.
Any application for a permit to construct a well which is made pursuant to this section, if the construction or operation of such well will involve the use of water, or if such well may be expected to yield water to be used, for any beneficial purpose, other than as a mineral source, an energy source, or otherwise as a material medium, shall be accompanied by an application to appropriate the public waters of this state in the form prescribed in chapter 2, title 42, Idaho Code, and by rules adopted pursuant thereto, and such application to appropriate the public waters shall be governed in all respects by that chapter.
Any application for a permit made pursuant to this section shall be accompanied by a filing fee of:
1. Two hundred dollars ($200) if for a well; or
2. One hundred dollars ($100) for an injection well;
No person shall construct or alter a well or an injection well without having first secured a permit therefor; provided however, that the director may, by general rule adopted pursuant to chapter 52, title 67, Idaho Code, exempt specific categories of wells or injection wells otherwise embraced by this chapter upon a finding that the purposes of this chapter do not require that such wells be subject to the permit requirement of this section.
Nothing in this chapter shall be construed as affecting any valid, vested water rights for water in use on or before July 1, 1987.
The director shall have the authority to and may designate any area of the state a “geothermal area” when the director finds or has reason to believe that such designation is necessary to protect the geothermal resource from waste and to protect other resources of the state from contamination or waste.
No person shall drill a well for any purpose to a depth of three thousand (3,000) feet or more below land surface in a designated “geothermal area” without first obtaining a permit under the provisions of this section. Such permit shall be in addition to any permit required by other provisions of law. (10) The owner of any well constructed or being constructed pursuant to section 47-316, Idaho Code, who encounters a geothermal resource, and who intends or desires to utilize such resource, shall make application for a geothermal permit as required under this section, provided however, that no additional filing fee shall be required.

(c) The length, size, type, and thickness of casing proposed to be used in such well and/or such injection well and any other devices or techniques to be used in the drilling, operation, and maintenance of such well and/or injection well for the purpose of conserving geothermal resources and their availability, avoiding waste and for the protection of other subsurface natural resources.

(d) The character and composition of the material expected to be derived from such well.

(e) The means proposed to be used to contain and manage the material expected to be derived from such well or injected into such injection well in order to avoid unreasonable damage to life, property, or surface and atmospheric natural resources.

(f) Whether such well or such injection well is proposed to be constructed as a part of a program for exploration or for development of an already explored geothermal resource area.

(g) Such other information as the director may determine to be necessary for the administration of this chapter.

and no application shall be accepted and filed by the director until such filing fee has been deposited with him. All moneys received under the provisions of this chapter shall be deposited with the state treasurer in the water administration fund as provided in section 42-238a, Idaho Code.

(11) A geothermal resource shall be utilized primarily for its heat value. Usage of a geothermal resource primarily for some reason other than its heat value shall not be deemed a beneficial use of the resource.

History.

1972, ch. 301, § 4, p. 749; am. 1974, ch. 20, § 51, p. 533; am. 1974, ch. 297, § 2, p. 1753; am. 1987, ch. 347, § 15, p. 741; am. 2007, ch. 189, § 1, p. 554; am. 2012, ch. 111, § 6, p. 302; am. 2017, ch. 271, § 30, p. 677.

STATUTORY NOTES

Cross References.

State treasurer,§ 67-1201 et seq.

Amendments.

The 2007 amendment, by ch. 189, in the introductory paragraph in subsection (a)(1), twice substituted “this subsection” for “this subdivision”; in subsection (b), substituted “rules” for “regulations”; in subsections (c)(1) and (c)(2), doubled the dollar amounts for fees; in subsections (c)(2) through (e), substituted “chapter” for “act”; and in subsection (d), deleted “or regulation” following “general rule.”

The 2012 amendment, by ch. 111, changed the designation scheme throughout the section; added “except as provided in subsection (2) of this section” at the end of subsection (1); added present subsection (2), renumbering the subsequent subsections accordingly; and added “required pursuant to subsection (1) of this section” near the beginning of subsection (3).

The 2017 amendment, by ch. 271, substituted “section 47-316, Idaho Code” for “section 47-320, Idaho Code” near the end of the first sentence in subsection (2) and near the beginning of subsection (10).

Compiler’s Notes.

The bracketed insertion near the end of subsection (5) was added by the compiler to correct the name of the referenced account.

Effective Dates.

Section 4 of S.L. 2007, ch. 189 declared an emergency. Approved March 26, 2007.

Section 7 of S.L. 2012, ch. 111 declared an emergency. Approved March 23, 2012.

Section 32 of S.L. 2017, ch. 271 declared an emergency. Approved April 6, 2017.

§ 42-4004. Processing of applications — Investigations — Hearings.

Upon receipt of an application made pursuant to section 42-4003, Idaho Code, it shall be the duty of the director to examine such application to ascertain, within thirty (30) days of receipt, if it sets forth all information required by that section and all the information necessary for the director to make the determination required by this section. If upon such examination the application is found to be defective, the director shall return such application for correction, or notify the applicant that such application is defective, and the applicant may correct such application within thirty (30) days or make a new application. All applications which comply with the provisions of this chapter and with the rules of the water resource board shall be accepted by the director and numbered in a manner which will aid in their identification.
Within thirty (30) days of the receipt and acceptance of a proper application and the determination of its completeness in accordance with subsection (a) of this section, the director shall undertake and thereafter diligently conduct such investigations as necessary to determine that the construction or alteration of the proposed well or injection well will be in the public interest. The director may consider, but is not limited in his consideration to:
1. The financial resources of the applicant, his principal, or other person who may be legally responsible for the subject well or injection well, and the probability that such person will be financially able to bear all costs for which he might be responsible which may be incident to the construction, operation, and maintenance of the well or injection well proposed to be constructed or altered.
2. The adequacy of measures proposed to safeguard subsurface, surface, and atmospheric resources from unreasonable degradation, and especially to protect ground-water aquifers and surface-water sources from contamination which would render such water of lesser quality than it would have had but for the contamination.
3. The possibility that the construction and maintenance of the proposed well will cause waste or will damage any geothermal resource, reservoir, or other source, by unreasonable reduction of pressures or unreasonable reduction of any geothermal resource material medium or in any other manner, so as to render any geothermal resource of unreasonably less value.
4. The adequacy of measures proposed to safeguard the environment of the area around the site of the proposed well from unreasonable contamination or pollution.
5. Any possible interdependence between any geothermal resource, reservoir, pool, or other source expected to be affected under the permit and any aquifers or other sources of ground waters used for beneficial uses other than uses as a material medium or a mineral source, and the probability that such interdependence may cause such ground-water sources to be inadequate to meet demands on them under existing water rights.

History.

(c) Upon completion of the investigations required under subsection (b) of this section, the director shall approve the application in whole or in part or upon conditions, or reject the application. Any applicant or the director shall have a right to have a public hearing concerning the propriety of issuing a permit for which an application has been made under section 42-4003, Idaho Code. Hearings held under this subsection shall be governed by rules of procedure adopted by the water resource board pursuant to chapter 52, title 67, Idaho Code. Hearings held under this subsection shall be held at any location found to be appropriate by the water resource board. History.

1972, ch. 301, § 5, p. 749; am. 1974, ch. 20, § 52, p. 533; am. 2007, ch. 189, § 2, p. 554.

STATUTORY NOTES

Amendments.

The 2007 amendment, by ch. 189, in subsection (a), inserted “within thirty (30) days of receipt” in the first sentence, and substituted “chapter” for “act” and “rules” for “regulations” in the last sentence; in the introductory paragraph in subsection (b), substituted “Within thirty (30) days of the receipt” for “Upon receipt,” and inserted “and the determination of its completeness in accordance with subsection (a) of this section” and “and thereafter diligently conduct”; and in subsection (c), added the first sentence, and twice substituted references to “this subdivision” for “subsection.”

Effective Dates.

Section 4 of S.L. 2007, ch. 189 declared an emergency. Approved March 26, 2007.

§ 42-4005. Permit — Issuance — Sufficient security — Review — Appeal.

If the director finds that the well or the injection well as proposed to be constructed or altered is in the public interest, he shall issue a permit. The director may issue a permit substantially in accordance with the specifications on the application, or the director may limit the scope of the permit granted or may issue a permit subject to conditions.
If the director finds that the well or injection well as it is proposed to be constructed or altered in the application will not be in the public interest, he shall refuse to issue a permit. In no case shall the director issue a permit to construct or alter a well or injection well if he finds that use of the proposed well or injection well may be expected to unreasonably reduce the quality of any surface or ground waters below the quality which such waters would have had but for the proposed well.
If the director refuses to issue a permit, or issues one subject to conditions or limitations, he shall issue a clear statement of his reasons for refusing to issue or issuing the limited permit. The director shall issue a statement of findings of fact and conclusions of law that provides a factual and legal basis for the order. The refusal of the director to issue a permit, together with the clear statement of the reasons for refusing to issue the permit shall be served on the applicant by certified mail. A permit issued conditionally or subject to limitations shall, with the statement of reasons required under this subsection, be served in the same manner as a refusal to issue a permit.
An applicant denied a permit or issued a limited or conditional permit may seek a public hearing before the water resource board. A certified transcript of the proceedings and the evidence received at such hearing shall be maintained by the board. The board shall affirm, modify or reject the director’s decision, and make its decision in the form of an order to the director. The hearing shall be conducted in accordance with chapter 52, title 67, Idaho Code. Judicial review of the final determination by the board may be secured pursuant to chapter 52, title 67, Idaho Code.
The director shall not issue a permit if he finds that the operation of any well under a proposed permit will decrease ground water in any aquifer or other ground water source or will unreasonably decrease ground water available for prior water rights in any aquifer or other ground water source of water for beneficial uses, other than uses as a mineral source, an energy source, or otherwise as a material medium, unless and until the applicant has also obtained a permit for the appropriation of ground waters under chapter 2, title 42, Idaho Code.
The director shall require, as a condition of every permit, that every person who engages in the construction, alteration, testing, or operation of a well provide evidence of good and sufficient security in the form of a bond, trust fund, letter of credit, insurance or other acceptable surety that ensures that the applicant perform the duties required by this chapter and properly abandon any well covered by such permit. Good and sufficient security shall be an amount not less than ten thousand dollars ($10,000) or more than one hundred thousand dollars ($100,000) as determined by the director based on the size and depth of the well, the complexity of the well, the resource to be recovered, the area of operation, and other relevant factors.

History.

(g) Notwithstanding the requirements for sufficient security for individual permits identified in this section, the director shall have the discretion to accept evidence of good and sufficient security in the form of a comprehensive wellfield or statewide bond, trust fund, letter of credit, insurance or other acceptable surety for all well permits owned by the applicant within a field or within the state, provided the amount of the comprehensive security does not exceed the total sum of the amounts under each individual permit. History.

1972, ch. 301, § 6, p. 749; am. 1974, ch. 20, § 53, p. 533; am. 1980, ch. 238, § 22, p. 526; am. 1987, ch. 347, § 16, p. 741; am. 1993, ch. 216, § 40, p. 587; am. 2004, ch. 63, § 1, p. 283; am. 2007, ch. 189, § 3, p. 554.

Within five (5) days after the completion of the abandonment of any well or injection well, the owner or operator of the abandoned well or injection well shall report, in writing to the director on such form as may be prescribed by the director, on all work done with respect to the abandonment.
If the director finds that the abandonment failed to comply with the director’s approval order or is otherwise not in compliance with this act or any regulation or order adopted or issued pursuant hereto, the director may issue an order disapproving such abandonment and/or requiring the person who abandoned the well or injection well to comply with the provisions of this act and any valid order or regulation adopted pursuant hereto or to do anything necessary to avoid waste and to protect life, property, and the natural resources of this state. Any owner or operator who receives a disapproval order under this section is a person who has commenced to abandon a well or injection well without approval, for purposes of any civil or criminal relief available under this act.

History.

1972, ch. 301, § 10, p. 749; am. 1974, ch. 20, § 57, p. 533.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” in the second paragraph refer to S.L. 1972, chapter 301, which is compiled as§§ 42-4001 to 42-4015.

§ 42-4010. Powers and duties — Penalties — Enforcement procedure.

The water resource board may adopt, amend, or rescind reasonable rules, regulations, and construction standards necessary to the administration of this chapter in accordance with chapter 52, title 67, Idaho Code.
The board may require that owners or operators of wells or injection wells keep or cause to be kept well logs, core records, and drilling histories of such wells or injection wells. It may require that copies of such logs, records, and/or histories be filed with the director within a reasonable time after well completion. It may further require such other geologic, geochemical, or engineering plans, reports, or records as necessary for the administration of this chapter. Any reports, logs, records, or histories filed with the director shall be available for public inspection subject to disclosure according to chapter 1, title 74, Idaho Code, and shall be kept as confidential by the director for a period of one (1) year from well completion, provided however, that the director may use any such reports, logs, records, or histories in any action in any court to enforce the provisions of this chapter or any order or regulation adopted hereunder.
The director may enter onto private land at any time to inspect any well or geothermal resource development project to determine if such well or project is being constructed, operated, or maintained according to any applicable permits or to determine if the construction, operation, or maintenance of such well or project may involve a threat to life or property or an unreasonable risk to subsurface, surface, or atmospheric resources.
If the director finds that any person is constructing, operating or maintaining any well or injection well not in accordance with any applicable permit or in a fashion so as to involve an unreasonable risk of, or so as to cause, damage to life or property or subsurface, surface, or atmospheric resources, the director may issue an order to such person to correct or to stop such practices as are found to be improper and to mitigate any injury of any sort caused by such practices.
The director may enforce any provision of this chapter or any order or regulation issued or adopted pursuant hereto by an appropriate action in the district court. The director may bring an action in the district court to have enjoined any threatened noncompliance with any provision of this chapter, regulations, or orders of the director, or any threatened harm to life, property, or surface, subsurface, or atmospheric resources which would be caused by such noncompliance. It shall be the duty of the attorney general to institute and prosecute civil enforcement actions or injunctive actions as provided in this chapter, and to prosecute actions or proceedings for the enforcement of any criminal provisions of this chapter. The attorney general may delegate the authority and duty under this section to prosecute criminal actions to the prosecuting attorney of the county in which such a criminal action may arise.
Any willful violation of or failure to comply with any provision of this chapter, or regulation adopted or order issued pursuant to the chapter, shall be a misdemeanor punishable by a fine of up to ten thousand dollars ($10,000) for each offense or a sentence of up to six (6) months in a county jail or both; each day of a continuing violation shall be a separate offense under this subdivision. When the director of the department of water resources determines that any person is in substantial violation of any provision of this chapter or any rule, permit, certificate, condition of approval or order issued or promulgated pursuant to this chapter, the director may commence an administrative enforcement action by issuing a written notice of violation in accordance with the provisions of section 42-1701B, Idaho Code. A responsible or principal executive officer of any corporate person may be liable under this subdivision if such corporate person is not in compliance with any provision of this chapter or with any valid order or regulation adopted pursuant hereto.
The director shall undertake such studies, investigations, or research programs as necessary for the proper administration of this chapter and in order to develop experience in and understanding of the entire field of geothermal resource exploration and development in both its technical and regulatory aspects. The director and board shall cooperate with other Idaho state agencies, the state institutions of higher learning, agencies of other states, and agencies of the federal government in the preparation of such investigations, studies, or research projects. The director and board may cooperate with the scientists at the Idaho national engineering laboratory in their research, development, engineering and demonstration of geothermal projects.
The director may enter into cooperative agreements and memoranda of understanding with agencies of other states for the purpose of the administration of geothermal areas which are partially in Idaho and partially in one (1) or more other states.

History.

1972, ch. 301, § 11, p. 749; am. 1974, ch. 20, § 58, p. 533; am. 1974, ch. 297, § 3, p. 1753; am. 1987, ch. 347, § 17, p. 741; am. 1990, ch. 213, § 62, p. 480; am. 1998, ch. 173, § 13, p. 595; am. 2015, ch. 141, § 118, p. 379.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Amendments.

The 2015 amendment, by ch. 141, substituted “chapter 1, title 74” for “chapter 3, title 9” in the fourth sentence of subsection (b).

Compiler’s Notes.

For more on the Idaho national laboratory, see https://www.inl.gov .

Effective Dates.

Section 4 of S.L. 1974, ch. 297, provided the act should take effect on and after July 2, 1974.

Section 111 of S.L. 1990, ch. 213 as amended by § 16 of S.L. 1991, ch. 329 provided that §§ 3 through 45 and 48 through 110 of the act should take effect July 1, 1993 and that §§ 1, 2, 46 and 47 should take effect July 1, 1990.

§ 42-4011. Name of owner on permit — Transfers restricted — Permit amendment, fee.

No well may be owned or operated by any person whose name does not appear on the permit or permit application therefor, nor may any well be transferred to any new owner or operator unless an application to amend such permit has been approved by the director.
No changes in or departure from the procedures, locations, data, or persons specified on the face of a permit shall be permitted under this act until an amendment to such permit is approved by the director. The board may specify forms upon which applications for amendments to permits may be filed with the director. Any application to amend a permit shall be accompanied by a filing fee of fifty dollars ($50.00), and the director shall not accept an amendment application which is not accompanied by such filing fee. All such filing fees shall be deposited with the state treasurer in the water administration fund [account] as provided in section 42-238a, Idaho Code.
The director shall approve any permit application to amend a permit unless he finds that such amendment will not be in the public interest. If the director refuses to approve such amendment, he shall serve on the applicant, by certified mail, an order disapproving the amendment and setting out its [his] reasons for disapproving the amendment.

History.

1972, ch. 301, § 12, p. 749; am. 1974, ch. 20, § 59, p. 533.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” in the first sentence in subsection (b) refer to S.L. 1972, chapter 301, which is compiled as§§ 42-4001 to 42-4015.

The bracketed insertion near the end of subsection (b) was added by the compiler to correct the name of the referenced account.

The bracketed word “his” in subsection (c) was inserted by the compiler to correct a grammatical error created by the 1974 amendment.

§ 42-4012. Resident agent — Actions — Hearings — Appeals.

Every permit holder, owner, and operator of any well shall designate to the director an agent who resides in this state upon whom may be served all orders, notices, or permits issued by the director.
Any person adversely affected by any order, including orders following hearings held pursuant to this chapter, served on him by the board or the director may bring an appeal therefrom to the district court within twenty-eight (28) days of such service, or, if he has not had a hearing before the board, he may request a hearing at such time. Such appeals shall be accomplished and reviewed pursuant to chapter 52, title 67, Idaho Code.
Nothing contained in this section shall preempt any right of any person to any writ or other relief available in a civil action.
Nothing contained in this act shall preempt any public nuisance or similar law of this state.
All orders, permits, and notices issued by the director or the board under this act shall also bind and be effective on all successors and assigns of the persons to whom such orders, permits, and notices are addressed.

History.

1972, ch. 301, § 13, p. 749; am. 1974, ch. 20, § 60, p. 533; am. 1980, ch. 238, § 23, p. 526; am. 1993, ch. 216, § 41, p. 587.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” in subsection (d) refer to S.L. 1972, chapter 301, which is compiled as§§ 42-4001 to 42-4015.

§ 42-4013. Cooperative unit agreements — Voluntary — Involuntary.

Whenever the director finds that it is in the public interest and especially in the interest of the conservation of natural resources and of the protection of the geothermal resources of this state from waste, the lessors, lessees, operators, owners, or other persons holding or controlling royalty or other interests in the separate properties of the same geothermal area may, with the approval of the board, enter into an agreement for the purpose of bringing about the cooperative development, operation, and maintenance of all or a portion of the geothermal resources of the geothermal area as a unit; or for the purpose of fixing the time, location, and manner of drilling, operating, and maintaining of wells and of injection wells. Any such agreement shall bind the successors and assigns of the parties thereto and shall be enforceable by the parties thereto by an action for specific performance. No such agreement, when approved by the board pursuant to this section, shall be held to violate any of the statutes of this state prohibiting monopolies or acts, arrangements, agreements, contracts, combinations or conspiracies in restraint of trade or commerce to the extent that the provisions of such agreement relate to the purpose of this section. No such agreement authorization shall constitute a waiver of any permit, license, lease, or other authorization required under this act or under any other provision of state law or any regulation adopted by any agency or subdivision of this state. The board may establish procedures to govern the establishment or adoption of such cooperative unit agreements.
Whenever the director finds that a geothermal resource area should be cooperatively operated as a unit to avoid waste, and the persons owning tracts or interests in such area refuse to enter into a cooperative agreement pursuant to subdivision [subsection] (a) of this section, the board, after notice and hearing, may issue an order that such area shall be operated as a unit. Such order shall provide an equitable sharing of proceeds and liabilities from the geothermal resource area among the several owners of tracts and interests therein.

History.

1972, ch. 301, § 14, p. 749; am. 1974, ch. 20, § 61, p. 533.

STATUTORY NOTES

Compiler’s Notes.

Section 62 of S.L. 1971, ch. 20 provided that the appointive members of the water resource board serving on July 1, 1974 continue in office for the terms to which they were originally appointed subject to§ 42-1732.

Section 63 of S.L. 1971, ch. 20, provided that the director of the department of water administration serving on July 1, 1974 continue in office as the director of the department of water resources until January 6, 1975, subject to§ 42-1803. The bracketed insertion near the middle of subsection (b) was added by the compiler to correct the terminology for the internal reference.

Effective Dates.

Section 64 of S.L. 1971, ch. 20, provided that this act take effect on and after July 1, 1974.

§ 42-4014. Liberal construction.

This act shall be construed liberally to serve its purposes and policy.

History.

1972, ch. 301, § 15, p. 749.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” at the beginning of the section refer to S.L. 1972, chapter 301, which is compiled as§§ 42-4001 to 42-4015.

§ 42-4015. Statutory construction.

Whenever the masculine gender is used in this act it shall read as the masculine, feminine, or neuter genders as may be appropriate; the singular form shall also be read as referring to the plural form wherever it is appropriate to do so.

History.

1972, ch. 301, § 16, p. 749.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” near the beginning of the section refer to S.L. 1972, chapter 301, which is compiled as§§ 42-4001 to 42-4015.

Section 17 of S.L. 1972, ch. 301 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 18 of S.L. 1972, ch. 301 declared an emergency. Approved March 27, 1972.

Chapter 41 WATER AND SEWER DISTRICT REVENUE BONDS

Sec.

§ 42-4101. Short title.

The following eighteen (18) sections may be cited as the “Water and Sewer District Revenue Bond Act.”

History.

I.C.,§ 42-4101, as added by 1976, ch. 62, § 1, p. 211.

STATUTORY NOTES

Compiler’s Notes.

The eighteen (18) sections referred to in this section are§§ 42-4101 to 42-4115 and the uncodified sections from S.L. 1976, chapter 62, which appear in notes following§ 42-4115.

§ 42-4102. Grant of authority.

Any water and/or sewer district acquiring, constructing, reconstructing, improving, bettering or extending any works pursuant to this act, shall manage such works in the most efficient manner consistent with sound economy and public advantage, to the end that the services of such works shall be furnished at the lowest possible cost. No water and/or sewer district shall operate any works primarily as a source of revenue to the district, but shall operate all such works for the use and benefit of those served by such works and for the promotion of the welfare and for the improvement of the health, safety, comfort and convenience of the inhabitants of the water and/or sewer district.

History.

I.C.,§ 42-4102, as added by 1976, ch. 62, § 1, p. 211.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” in the first sentence refers to S.L. 1976, chapter 62, which is codified as§§ 42-4101 to 42-4115.

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 42-4103. Definitions.

For the purpose of this act, unless a different meaning clearly appears from the context, the following terms shall be ascribed the following meanings:

The term “works” shall include water systems and sewerage systems;
The term “water system” shall include reservoirs, storage facilities, water mains, conduits, aqueducts, pipelines, pumping stations, filtration plants, and all appurtenances and machinery necessary or useful for obtaining, storing, treating, purifying or transporting water for domestic uses or purposes;
The term “sewerage system” shall include intercepting sewers, outfall sewers, force mains, collecting sewers, pumping stations, ejector stations, treatment plants, structures, buildings, machinery, equipment, connections and all other appurtenances necessary, useful or convenient for the collection, transportation, treatment, purification, and disposal of the sewage of any district;
The term “district” shall mean water and/or sewer districts and/or water or sewer subdistricts.

History.

I.C.,§ 42-4103, as added by 1976, ch. 62, § 1, p. 211; am. 1996, ch. 73, § 2, p. 237.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” in the introductory paragraph refers to S.L. 1976, chapter 62, which is codified as§§ 42-4101 to 42-4115.

§ 42-4104. Powers.

In addition to the powers which it may now have, any district shall have power under and subject to the following provisions:

To acquire by gift or purchase and to construct, reconstruct, improve, better or extend any works within or without the district, or partially within or partially without the district, or within any part of the district, and acquire by gift or purchase lands or rights in lands or water rights in connection therewith, including easements, rights of way, contract rights, leases, franchises, approaches, dams and reservoirs; to lease any portion of the excess or surplus capacity of any such works to any party located within or without the district, subject to the following conditions: that such capacity shall be returned or replaced by the lessee when and as needed by such district for the purposes set forth in section 42-4102, Idaho Code, as determined by the district; that the district shall not be made subject to any debt or liability thereby; and the district shall not pledge any of its faith or credit in aid to such lessee;
To exercise the right of eminent domain for any of the works, purposes or use provided by this act, in like manner and to the same extent as provided in section 7-720, Idaho Code;
To operate and maintain any works within or without the boundaries of the district, or partially within or without the boundaries of the district, or within any part of the district;
To issue its revenue bonds hereunder to finance, in whole or in part, the cost of the acquisition, construction, reconstruction, improvement, betterment or extension of any works;
To prescribe and collect rates, fees, tolls or charges, including the levy or assessment of such rates, fees, tolls or charges against governmental units, departments or agencies, including the state of Idaho and its subdivisions, for the services, facilities and commodities furnished by such works, and to provide methods of collections and penalties, including denial of service for nonpayment of such rates, fees, tolls or charges;
To pledge an amount of revenue from such works (including improvement, betterment or extensions thereto, thereafter constructed or acquired) sufficient to pay said bonds and interest as the same shall become due, and to create and maintain reasonable reserves therefor.

Such amount may consist of all or any part or portion of such revenues. In determining such cost, there may be included all costs and estimated costs of the issuance of said bonds; all engineering, inspection, fiscal and legal expenses and interest which it is estimated will accrue during the construction period and for six (6) months thereafter on money borrowed or which it is estimated will be borrowed pursuant to the water and sewer district revenue bond act.

History.

(g) To issue bonds for the purpose of refunding any bonds theretofore issued under authority of the water and sewer district revenue bond act and to pay accrued interest and applicable redemption premiums on the bonds to be refunded, if the bonds to be refunded are due, callable or redeemable by their terms on or prior to the date that the refunding bonds are issued, or will become due, callable or redeemable by their terms within twelve (12) months thereafter, or if the bonds to be refunded, even though not becoming due, callable or redeemable within such period, are voluntarily surrendered by the holders thereof, for cancelation at the time of the issuance of the refunding bonds. All or part of any issue may be refunded and all or part of several issues may be refunded into a single issue of refunding bonds. There may be included with the refunding bonds, as part of a single issue, or in combination in one or more series, bonds for any other purpose or purposes for which bonds are authorized to be issued under the water and sewer district revenue bond act. Refunding bonds shall be issued and secured in such manner as may be provided in the proceedings authorizing their issuance and as otherwise provided in the water and sewer district revenue bond act, and such changes may be made in the security and revenue pledged to the payment of the bonds so refunded, as provided by the governing body in the proceedings authorizing such bonds. No election on the issuance of refunding bonds shall be required, but if by an increase in the amount of bonds or by changes in the security or pledged revenues, the requirements of the constitution for an election shall become applicable, or if refunding bonds are combined into a single issue with bonds authorized for nonrefunding purposes, then such bonds with changes in security or revenues, or such bonds in excess of the amount of bonds refunded, as the case may be, must have been approved at an election as otherwise provided in the water and sewer district revenue bond act and the constitution. Refunding bonds may be exchanged for not less than a like principal amount of bonds authorized to be refunded, may be sold, or may be exchanged in part and sold in part. If sold, the proceeds of the sale, not required for the payment of expenses, and in any event, in an amount sufficient to assure the retirement of the bonds refundable, when such bonds become available for retirement, if not applied to a simultaneous payment and cancelation of the bonds refunded shall be escrowed with a bank or trust company and may be invested in United States government obligations or in obligations unconditionally guaranteed by the United States of America in such manner as may be provided in the authorizing proceedings. History.

I.C.,§ 42-4104, as added by 1976, ch. 62, § 1, p. 211.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” in subsection (b) refers to S.L. 1976, chapter 62, which is codified as§§ 42-4101 to 42-4115.

The words enclosed in parentheses so appeared in the law as enacted.

CASE NOTES

Cited

Payette Lakes Water & Sewer Dist. v. Hays, 103 Idaho 717, 653 P.2d 438 (1982).

§ 42-4105. Supervision of works.

The construction, acquisition, improvement, equipment, custody, operation and maintenance of any works under the provisions of this act, and the collection of revenues therefrom for the service rendered thereby shall be under the supervision and control of the governing body of the district.

History.

I.C.,§ 42-4105, as added by 1976, ch. 62, § 1, p. 211.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” near the middle of the section refers to S.L. 1976, chapter 62, which is codified as§§ 42-4101 to 42-4115.

§ 42-4106. Works to be self-supporting.

The commissioners of the district issuing bonds pursuant to this act shall prescribe and collect reasonable rates, fees, tolls or charges for the services, facilities and commodities furnished by such works, and shall revise such rates, fees, tolls or charges from time to time, to provide that all such works shall be and always remain self-supporting. The rates, fees, tolls or charges prescribed shall be such as will produce revenue at least sufficient, (a) to pay when due all bonds and interest thereon for the payment of which such revenue is or shall have been pledged, charged or otherwise encumbered including reserves therefor, and (b) to provide for all expenses of operation and maintenance of such works, including reserves therefor.

History.

I.C.,§ 42-4106, as added by 1976, ch. 62, § 1, p. 211.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” in the first sentence refers to S.L. 1976, chapter 62, which is codified as§§ 42-4101 to 42-4115.

§ 42-4107. Use of works — Revenue.

Any district issuing bonds under this act for the acquisition, construction, reconstruction, improvement, betterment or extension of any works, shall have the right to appropriate, apply or expend the revenue of such works for the following purposes: (a) to pay when due all bonds and interest thereon, for the payment of which such revenue is or shall have been pledged, charged or otherwise encumbered, including reserves therefor; (b) to provide for all expenses of operation, maintenance, replacement and depreciation of such works, including reserves therefor; (c) to pay and discharge notes, bonds or other obligations and interest thereon, not issued under this act for the payment of which the revenue of such works may have been pledged, charged or encumbered; (d) to pay and discharge notes, bonds or other obligations and interest thereon which do not constitute a lien, charge or encumbrance on the revenue of such works, which may have been issued for the purpose of financing the acquisition, construction, reconstruction, improvement, betterment or extension of such works; and (e) provide a reserve for improvements to such works. Unless and until full and adequate provision has been made for the foregoing purposes, no district shall have the right to transfer the revenue of such works to its general fund.

History.

I.C.,§ 42-4107, as added by 1976, ch. 62, § 1, p. 211.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” appearing twice in the first sentence refers to S.L. 1976, chapter 62, which is codified as§§ 42-4101 to 42-4115.

§ 42-4108. Preliminary expenses.

The district may provide for the payment of all necessary preliminary expenses actually incurred in the making of surveys, estimates of costs and revenues, employment of engineers and other employees, making of notices, taking of options, legal and clerical help and all other expenses necessary to be made and paid prior to the authorization for the issuance of such revenue bonds, provided, that no such expenditures shall be made or paid unless an appropriation has been made therefor in the same manner as is required by law for district funds. Any funds so expended by the district shall be fully reimbursed and repaid to the district out of the sale of such revenue bonds before any other disbursements are made therefrom, and the amount so advanced by the district to pay such preliminary expenses shall be a first charge against the proceeds resulting from the sale of such revenue bonds until the same has been repaid as herein provided.

History.

I.C.,§ 42-4108, as added by 1976, ch. 62, § 1, p. 211.

§ 42-4109. Resolution prior to construction — Election.

Before any district shall construct or acquire any works under this act, the commissioners of such district shall enact a resolution or resolutions which shall, (a) set forth a brief and general description of the works, and if the same are to be constructed, a reference to the preliminary report or plans and specifications which shall theretofore have been prepared and filed by an engineer chosen for that purpose; (b) set forth the cost thereof estimated by the engineer chosen as aforesaid; (c) order the construction or acquisition of such works; (d) direct that revenue bonds of the district shall be issued pursuant to this act in such amount as may be necessary to pay the cost of the works; and (e) contain such other provisions as may be necessary in the proposal.

Such resolution shall be passed and approved as provided by law for the enactment of general resolutions, but such district shall not, without the assent of a majority of the qualified electors voting at an election to be held for such purpose, issue revenue bonds for the purpose of providing funds to own, purchase, construct, extend or equip, within and without the corporate limits of such district, water systems, sewerage systems, water treatment plants and sewerage treatment plants, the principal and interest of which to be paid solely from the revenue derived from rates and charges for the use of, and the service rendered by such systems, plants and facilities.

Said resolutions shall provide for the holding of said election in the manner set forth in chapter 14, title 34, Idaho Code. The notice of election shall set forth the purpose of said resolution, the amount of bonds authorized by it, the maturity dates of said bonds, the maximum rate of interest they shall draw, the voting places, the hours between which the polls will be open and the qualifications of voters who may vote thereat. Such election shall be conducted as are other district elections. The voting at such elections must be by ballot, and the ballots used shall be substantially as follows:

“In favor of issuing revenue bonds for the purposes provided by Resolution No. . . . . . . .”

“Against the issuance of revenue bonds for the purposes provided by Resolution No. . . . . . . .”

If, at such election, a majority of the qualified electors, voting at such election, vote in favor of issuing such revenue bonds, then such district may issue such bonds and create such indebtedness or liability in the manner and for the purpose specified in said resolution.

History.

I.C.,§ 42-4109, as added by 1976, ch. 62, § 1, p. 211; am. 1994, ch. 51, § 1, p. 89.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” near the beginning and near the end of the first paragraph refers to S.L. 1976, chapter 62, which is codified as§§ 42-4101 to 42-4115.

§ 42-4110. Bonds — Form — Conditions.

Revenue bonds issued under authority of this act shall be sold, executed and delivered at public or private sale in the manner as provided by the municipal bond law. Revenue bonds may also be sold by electronic bidding as provided in section 57-233, Idaho Code. The resolution authorizing the issuance of said bonds shall prescribe the form of bonds. Said bonds shall bear interest at a rate or rates, payable annually, or at such lesser intervals as may be prescribed by resolution; may be in one (1) or more series, bear such date or dates, mature at such time or times, and be redeemable before maturity at the option of the district; may be payable in such medium of payment, at such place or places, may carry such registration privileges, may be subject to such terms of redemption, may contain such terms, covenants and conditions, and may be in such form, either coupon or registered, as such resolution may provide. Said bonds shall be sold at not less than par with accrued interest. Pending preparation of the bonds, interim certificates, in such form and with such provisions as the commissioners may determine, may be issued. Said bonds and interim certificates shall be fully negotiable within the meaning of and for all the purposes of the negotiable instruments law.

Notwithstanding the provisions of the municipal bond law, the governing body in any proceedings authorizing bonds under this act may:

Provide for the initial issuance of one (1) or more bonds, in this act called “bond,” aggregating the amount of the entire issue;
Make such provision for installment payments of the principal amount of any such bond as it may consider desirable;
Provide for the making of any such bond payable to bearer or otherwise, registrable as to principal or as to both principal and interest, and where interest accruing thereon is not represented by interest coupons, for the endorsing or payments of interest on such bonds; and
Further make provision in any such proceedings for the manner and circumstances in and under which any such bond may in the future, at the request of the holder thereof, be converted into bonds of smaller denominations, which bonds of smaller denominations may in turn be either coupon bonds or bonds registrable as to principal, or principal and interest, or both.

History.

I.C.,§ 42-4110, as added by 1976, ch. 62, § 1, p. 211; am. 2001, ch. 264, § 1, p. 967.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” in the first paragraph and twice in the second paragraph refers to S.L. 1976, chapter 62, which is codified as§§ 42-4101 to 42-4115.

§ 42-4111. Bonds — Issuance — Terms — Conditions.

Whenever revenue bonds are authorized to be issued, the district commissioners shall by resolution provide for the issuance thereof. The resolution authorizing the issuance of said revenue bonds, for the purpose authorized, shall contain covenants as to:

The purpose or purposes to which the proceeds of the sale of said bonds may be applied and the use and disposition thereof;
The use and disposition of the revenue of the works for which said bonds are to be issued, including the creation and maintenance of reserves;
The issuance of other or additional bonds payable from the revenue of such works;
The operation and maintenance of such works;
The insurance to be carried thereon, the use and disposition of insurance moneys;
Books of account and inspection and audit thereof;
The terms and conditions upon which the holders thereof or any trustee therefor shall be entitled to the appointment of a receiver which receiver may enter and take possession of such works, operate and maintain the same, prescribe rates, fees, tolls or charges and collect, receive and apply all revenue thereafter arising therefrom in the same manner as the district itself might do. The provisions of this section and of any such resolution shall be a contract with the holder of said bonds and the duties of the district and its commissioners under this section and under such resolution, shall be enforceable by the holder by mandamus or other appropriate suit, action or proceedings at law or in equity.

The bracketed insertion near the end of the section was added by the compiler to correct the name of the referenced act. See§ 42-4101.

§ 42-4114. District not liable on bonds.

Bonds issued pursuant to the water and sewer district revenue bond act shall not be a debt of the district and the district shall not be liable thereon, nor shall they be payable out of any funds other than the revenue pledged to the payment thereof. Each bond issued under the water and sewer district revenue bond act shall recite, in substance, that said bond, including interest thereon, is payable solely from the revenue pledged to the payment thereof. Bonds may be issued under the water and sewer district revenue bond act notwithstanding and without regard to any limitation or restriction on the amount or percentage of indebtedness, or of outstanding obligations of a district.

History.

I.C.,§ 42-4114, as added by 1976, ch. 62, § 1, p. 211.

§ 42-4115. Works and bonds exempt from taxation.

So long as a district shall own any works, the property and revenue of such works shall be exempt from taxation. Bonds issued under the water and sewer district revenue bond act and the income therefrom shall be exempt from taxation, except transfer and estate taxes.

History.

I.C.,§ 42-4115, as added by 1976, ch. 62, § 1, p. 211.

STATUTORY NOTES

Compiler’s Notes.

Section 2 of S.L. 1976, ch. 62, read: “The district is hereby authorized to issue and sell any revenue bonds authorized by the electorate on or after January 1, 1974.”

Section 3 of S.L. 1976, ch. 62, read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 4 of S.L. 1976, ch. 62, declared an emergency. Approved March 10, 1976.

Chapter 42 GROUND WATER RECHARGE

Sec.

§ 42-4201. Jerome, Lincoln, Gooding and Twin Falls counties — Project to recharge ground water basins — Director’s authority to issue permit — Limitations.

The welfare of the people of the state of Idaho is dependent upon the conservation, development, augmentation and optimum use of the water resources of this state. The legislature deems it essential therefore that every effort be made to foster and encourage water projects designed to promote these objectives. The legislature hereby acknowledges that the proposed project to recharge ground water basins in Jerome, Lincoln and Gooding counties by means of the storage of unappropriated waters of the Snake River and its tributaries in underground lava beds within that vicinity represents a unique and innovative endeavor to further water conservation and increase the water available for beneficial use. The legislature approves this undertaking as a pilot effort to bring about maximum realization of our water resource potential and finds, in particular, that this project shall serve the interests of the public and advance the multiple use water policy of this state by:
1. sustaining and increasing the flow of springs in the general vicinity of the Hagerman Valley;
2. increasing the water available for withdrawal from ground water basins located in Jerome, Gooding and Lincoln counties;
3. supplementing the supply of water available for irrigation downstream from the Hagerman Valley;
4. providing additional aquatic habitats for migratory fowl and wildlife; and
5. increasing and sustaining the flow of the Snake River during the summer months and in times of drought when additional flow is needed for the generation of hydroelectric power and the maintenance of water recreation facilities.
In view of the public betterment to be achieved by the completion of this water project, the legislature hereby declares that the appropriation and underground storage of water by the aquifer recharge district hereinafter created for purposes of ground water recharge shall constitute a beneficial use and hereby authorizes the department of water resources to issue to the aquifer recharge district a permit, pursuant to section 42-203 [42-203A], Idaho Code, for the appropriation and underground storage of the unappropriated waters of the Snake River in Jerome, Lincoln and Gooding counties and its tributaries in Gooding and Lincoln counties. The department of water resources is further authorized to issue to the aquifer recharge district a license confirming the right to appropriate such waters for the beneficial use herein established upon compliance by the district with the requirements specified in chapter 2, title 42, Idaho Code. The rights acquired by the aquifer recharge district pursuant to any permit and license obtained as herein authorized shall be secondary to all prior perfected water rights, including those held by any privately-owned electrical generating company to appropriate waters in the reaches of the Snake River downstream from the Milner diversion for purposes of hydroelectric power generation. (3) The director of the department of water resources may regulate the amount of water which the aquifer recharge district may appropriate from the Snake River and may reduce such amount, even though there is sufficient water to supply the entire amount originally authorized, but only if the following conditions are met:
1. the amount of water available for appropriation by the district at the time the reduction is sought exceeds two hundred thousand (200,000) acre feet per year and the reduction, if granted, will not operate to deplete that amount to less than two hundred thousand (200,000) acre feet per year;
2. the persons or entities seeking the reduction propose to use the water for purposes of surface reservoir storage and appropriation by the district of the entire amount originally authorized will prevent or adversely affect accomplishment of those purposes;
3. the persons or entities seeking the reduction present substantial and compelling evidence to show that the accomplishment of such purposes will be prevented or adversely affected and the director finds on the basis of such evidence that sufficient justification for the reduction exists.

Even if the foregoing conditions are satisfied and a reduction is granted, such a reduction shall remain in effect only so long as the amount of water available for appropriation by the district exceeds two hundred thousand (200,000) acre feet per year.

The provisions of this subsection shall not apply to appropriation of water by the district from the Big Wood River or the Little Wood River.

(4) To insure that other water rights are not injured by the operations of the aquifer recharge district, the director of the department of water resources shall have the authority to approve, disapprove, or require alterations in the methods employed by the district to achieve ground water recharge. In the event that the director determines that the district’s methods of operation are adversely affecting existing water rights or are creating conditions adverse to the beneficial use of water under existing water rights, the director shall order the cessation of operations until such alterations as may be ordered by the director have been accomplished or such adverse effects otherwise have been corrected.

(5) The fee required for an application for a permit to appropriate water as provided in section 42-221, Idaho Code, is hereby waived from the effective date of this act until July 1, 1997, for recharge projects for recharge districts formed under this section.

History.

I.C.,§ 42-4201, as added by 1978, ch. 293, § 1, p. 723; am. 1994, ch. 273, § 1, p. 849; am. 1995, ch. 338, § 1, p. 1117.

STATUTORY NOTES

Compiler’s Notes.

The bracketed reference “42-203A” in subsection (2) of this section was inserted by the compiler since§ 42-203 was amended and redesignated as §42-203A by S.L. 1985, ch. 17, § 1.

The phrase “the effective date of this act” in subsection (5) refers to the effective date of S.L. 1994, chapter 273, which was effective March 30, 1994.

Effective Dates.

Section 2 of S.L. 1994, ch. 273 declared an emergency. Approved March 30, 1994.

CASE NOTES

Police Power.

The city’s ordinance’s capitalization fee created an equitable buy-in structure, with revenues delegated for repairs, replacement and maintenance of system components proportionally used by those within the water district’s system, and the capitalization fee was reasonable and rationally related to the purpose of the city’s regulatory function of insuring clean and safe water for those users of the district’s system. The ordinance was adopted pursuant to a valid exercise of police power authority granted to the district by§§ 42-4201 and 42-3212. Potts Constr. Co. v. N. Kootenai Water Dist., 141 Idaho 678, 116 P.3d 8 (2005).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Understanding the 1984 Swan Falls Settlement, Clive J. Strong & Michael C. Orr. 52 Idaho L. Rev. 223 (2016).

§ 42-4201A. Recharge of ground water basins

Director’s authority to issue permit. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised I.C.,§ 42-4201A, as added by 1982, ch. 204, § 1, p. 538; am. 1985, ch. 120, § 1, p. 292; am. 1994, ch. 274, § 1, p. 851, was repealed by S.L. 2009, ch. 242, § 2.

§ 42-4202. Aquifer recharge district — Formation.

For purposes of formation of the aquifer recharge district, a petition shall be presented to the department of water resources which shall set forth the object of the organization of the district and the benefits to be provided by the district. The petition shall be accompanied by a map of the proposed district which shall indicate the proposed boundaries of the district, the nature and location of the proposed diversion works and other facilities by means of which water is to be diverted into the recharge area, shall delineate the underground water basin or basins to be affected by the recharge, and shall designate the location of any streams or springs which shall be affected by the recharge. The petition and map shall be accompanied by a statement describing the details of the contemplated diversion works and facilities and an estimate of the cost of constructing such works and facilities, which statement and estimates shall be certified to by an engineer licensed by the state of Idaho.

The petition shall be signed by no less than fifty (50) percent of the water users located within the proposed boundaries of the district. For purposes of this act, “water users” shall include the following:

Individuals, or entities, exclusive of privately owned electrical generating companies, who are the holders of title or evidence of title to property, but without the boundaries of a municipality, who are the current holders of a right, acquired in accordance with the provisions of chapter 2, title 42, Idaho Code, to appropriate water in an amount equal to or in excess of one (1) cubic foot per second, and who divert water from underground basins within the area of recharge by means of a well or wells, or who divert water from springs or other water courses emerging from such underground basins, or both.
Municipalities which obtain water from underground basins in the area of recharge. A municipality may elect to be included within the proposed district by a majority vote of the members of its city council. The mayor of any municipality so electing may sign the petition on behalf of the municipality, and such municipality shall constitute one water user for purposes of securing the minimum number of signatures required for the petition.

History.

I.C.,§ 42-4202, as added by 1978, ch. 293, § 1, p. 723; am. 1979, ch. 8, § 1, p. 10; am. 1982, ch. 204, § 2, p. 538.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” in the second paragraph refer to S.L. 1978, chapter 293, which is compiled§§ 42-4201 to 42-4231.

§ 42-4203. Formation of district — Declaration by director.

After receipt of the petition, map and statement, the director shall review and examine the same and may require the submission of such additional or revised data concerning the boundaries of the proposed district, the location and nature of the diversion works and facilities to be constructed, the costs of construction or any other matter relevant to the formation of the district as he may deem necessary. The director shall conduct a hearing on the petition and supporting documents. Notice of the time and place of the hearing shall be published by the director in a newspaper or newspapers published in each of the counties or a newspaper of general circulation therein at least three (3) weeks before the date of the hearing.

Within ninety (90) days after the hearing has been concluded, the director after due consideration of all relevant data and testimony, shall determine whether the proposed district will provide the benefits described, whether the boundaries proposed are proper with respect to the benefits to be provided, and whether the formation of the district will serve the interests of the water users proposed to be benefited. On the basis of his determination, the director shall enter an order either establishing the aquifer recharge district and defining the boundaries thereof to reflect the area to be benefited, or denying the formation of the district. If the director orders formation of the district, he shall cause copies of the order, duly certified, to be filed with the secretary of state and board of county commissioners, county recorder, county assessor and county treasurer of each county in which any part of the district is situated.

History.

I.C.,§ 42-4203, as added by 1978, ch. 293, § 1, p. 723; am. 1979, ch. 8, § 2, p. 10.

STATUTORY NOTES

Cross References.

Secretary of state,§ 67-901 et seq.

Effective Dates.

Section 3 of S.L. 1979, ch. 8 declared an emergency. Approved March 1, 1979.

§ 42-4204. Board of directors — Composition — Appointment of first board — Election of subsequent boards.

The board of directors of the aquifer recharge district shall consist of five (5) members. Each member shall be a water user, or representative of a water user within the district. The members of the board shall be as follows:
1. one (1) member shall be a member of a lateral ditch water user’s association, canal company, irrigation district or similar organization;
2. one (1) member shall be an owner or operator of a commercial fish hatchery licensed in accordance with the provisions of section 22-4602, Idaho Code;
3. one (1) member shall be a farmer or rancher who is an appropriator of groundwater and whose diversion thereof is accomplished primarily through the operation of a well or wells;
4. one (1) member shall be a member of the city council of a municipality within the district;
5. one (1) member shall be generally representative of the interests of water users within the district.
The first board of directors shall be appointed by the director of the department of water resources. Water users within the district, or groups thereof, may submit to the director, or the director may solicit therefrom, the names of qualified individuals to be considered for appointment to the board.
The term of office of the directors shall be determined by lot so that three (3) members shall serve for a term of two (2) years and two (2) members shall serve for a term of one (1) year. Thereafter, members shall serve two (2) year terms and shall be elected as hereinafter provided.
On the first Tuesday in February following the expiration of the term of those members serving for one (1) year, and on the first Tuesday in February of each year thereafter, an election shall be held in accordance with the provisions of chapter 14, title 34, Idaho Code, at which directors to succeed those whose terms have expired will be elected. Each director so elected shall possess the qualifications required of all members of the board and in addition shall possess the qualifications of the director whom he is to succeed in office.

Compiler’s Notes.

The quotation marks at the end of this section were bracketed by the compiler because they were inadvertently left in the section by the 1995 amendment.

§ 42-4208. Notice of election.

The secretary of the district shall give notice of all elections in the district by publication of the notice in accordance with the provisions of section 34-1406, Idaho Code. Notices shall state the time of said election and the location of polling places within the district and the directors to be elected or other question to be voted upon, as the case may be.

History.

I.C.,§ 42-4208, as added by 1978, ch. 293, § 1, p. 723; am. 1995, ch. 118, § 78, p. 417.

§ 42-4209. Conduct of elections.

The election shall be conducted in accordance with the general laws of the state including the provisions of chapter 14, title 34, Idaho Code.

Effective Dates.

Section 4 of S.L. 1985, ch. 10 declared an emergency. Approved February 26, 1985.

§ 42-4212. Powers and duties of the board of directors.

The board shall have the following powers and duties:

to manage and conduct the business and affairs of the districts;
to employ and appoint such agents, officers and employees as may be required and prescribe their duties;
to make and execute all necessary contracts, including contracts for the construction of diversion works and other facilities, contracts for the transportation of water through existing canals or other diversion works owned or operated by a canal company or companies or other entity or entities, and contracts with those persons and/or entities designated in section 42-4223, Idaho Code, for the purposes therein specified;
to construct and operate diversion works, recharge ponding areas and injection wells, subject to such standards and specifications as the director of the department of water resources shall determine;
to obtain from the federal government such permits as may be required for the accomplishment of the purposes of the district;
to enter upon any land and make surveys for purposes of determining the best location for the diversion works and other facilities necessary to accomplish the purposes of the district;
to acquire, either by purchase, condemnation or other legal means, all lands and other property necessary for the construction, use and supply, maintenance, repair and improvement of diversion works and facilities. The power of condemnation shall be limited to the acquisition of land and/or easements for right-of-way purposes only. The appropriation and storage underground of waters by the aquifer recharge district, together with the acquisition of such rights-of-way for the construction, maintenance and improvement of such diversion works and facilities as are necessary to the accomplishment of the purposes of the district is hereby declared to be a public use, subject to the regulation and control of the state in the manner prescribed by law.
to levy assessments for the maintenance and operation of the diversion works and facilities of the district, as well as assessments for the payment of such fees as are charged to the district by any canal company or companies or other entity or entities owning or operating canals or other diversion works used by the district;
to levy assessments for the retirement of indebtedness incurred for purposes of financing construction of the diversion works and facilities of the district and the construction of such capital improvements thereto as are deemed necessary by the board;
to incur indebtedness, the term of which shall not exceed ten (10) years, by contract with a money-lending institution;
to do any and every lawful act necessary to be done that the provisions of this chapter may be carried out.
At such intervals as the director of the department of water resources shall establish, the board of directors shall report to the director, in the form and manner prescribed by him, concerning the operations of the district. The report shall indicate the amount of water being diverted by the district for purposes of recharge, the locations of the points of recharge, the flow of water at those discharge points affected by the recharge and such other information as the director may require. (13) The board of directors annually shall submit to the director of the department of water resources a financial report setting forth the financial condition of the district. The report shall be in the form prescribed by the director and shall specify the amount of the assessments levied by the district for that year, the outstanding obligations of the district, and such other information as the director may require. The director shall have the authority to conduct an audit of the financial transactions and operations of the district.

The bracketed insertion in the second sentence was added by the compiler to make the sentence more readable.

§ 42-4215. Levy of assessments.

The secretary of the board of directors shall be the assessor of the district, and on or before August 1 of each year shall prepare an assessment book containing a full and accurate list of all water users within the district.

At a regular meeting of the board between August 1 and November 1 of each year, the board of directors shall determine the amount necessary to be raised for the maintenance and operation of the works and facilities of the district and the payment of such fees as may be charged to the district for the use of canals or other diversion works owned or operated by a canal company or companies or other entity or entities, and shall levy assessments against the water users in the district sufficient to raise such amount. Moneys received in payment of such assessments shall be deposited in a separate fund to be known as the maintenance and operation fund. The board also may levy assessments against the water users in the district for the repayment of indebtedness incurred by the board on behalf of the district, as provided in section 42-4216, Idaho Code. Money received in payment of such assessments shall be deposited in a separate fund to be known as the debt retirement fund. The board of directors may, in addition, determine the amount necessary to pay the expenses of making the assessment book, giving notice of assessments and making collections thereof and may levy assessments against the water users in the district sufficient to raise such amount. Moneys received in payment of such assessments shall be deposited in a separate fund to be known as the assessment expense fund.

Compiler’s Notes.

The bracketed word “or” in the second sentence was inserted by the compiler to correct the enacting legislation.

§ 42-4218. Lien of assessment.

From and after January 1 of any year, all assessments, other than those levied against municipalities, shall be liens against the property of water users to which the water rights used to determine assessments are appurtenant. Such liens shall not be removed until the assessments are paid or the property is sold for the payment thereof.

History.

I.C.,§ 42-4218, as added by 1978, ch. 293, § 1, p. 723.

§ 42-4219. Payment of assessments — When delinquent — Interest and penalties.

A contract executed and approved as herein provided may be used by the department of water resources as the basis for issuance of a permit to the electrical generating company or downstream appropriator for the appropriation and storage of such water as shall become available thereto as a result of the functioning of the district. Water appropriated under any such permit shall be deemed to be stored water and the use and manner of appropriation thereof shall be subject to all applicable limitations and restrictions imposed by law, including the provisions of subsection (3) of section 42-4201 or subsection (3) of section 42-234, Idaho Code.

Prior to the formation of the aquifer recharge district, any such electrical generating company or downstream appropriator may file with the director of the department of water resources a letter of intent to enter into such a contract.

History.

I.C.,§ 42-4223, as added by 1978, ch. 293, § 1, p. 723; am. 1982, ch. 204, § 5, p. 538; am. 2009, ch. 242, § 3, p. 743.

STATUTORY NOTES

Amendments.

The 2009 amendment, by ch. 242, substituted “42-234” for “42-4201A” in the second paragraph.

§ 42-4224. Water users subject to inclusion within the district.

All water users, as defined in section 42-4202(1), Idaho Code, included within the district and who have not obtained exclusion as hereinafter provided, shall remain within and be subject to assessment by the district, notwithstanding the absence of their signatures on the petition for formation of the district, and notwithstanding any change in the ownership or control of the property of the water user, whether by way of transfer, exchange, conveyance, assignment, lease, or otherwise, to which the water right or rights used to determine assessments are appurtenant. Municipal water users, as defined in section 42-4202(2), Idaho Code, included within the district shall remain at their election, within and be subject to assessment by the district unless excluded in the manner hereinafter provided.
Any water user, as defined in section 42-4202(1), Idaho Code, who has obtained exclusion from the district, but who nevertheless is benefited by the district, shall remain excluded; provided, however, that any person or entity succeeding the water user in the ownership or control of property, whether by way of transfer, exchange, conveyance, assignment, lease, or otherwise, to which is appurtenant a water right that, barring the exclusion, would have been used to determine assessments, shall be deemed included within and subject to assessment by the district.
Any individual or entity whose permit to appropriate water was acquired after the formation of the district, but who qualifies as a water user under section 42-4202(1), Idaho Code, in all other respects, shall be deemed included within and subject to assessment by the district if benefited either directly or indirectly by the district.

History.

I.C.,§ 42-4224, as added by 1978, ch. 293, § 1, p. 723.

§ 42-4225. Exclusion from the district — Procedure — Grounds for exclusion.

After the formation of the district, any water user included within the district may file with the board of directors a petition in writing praying for exclusion from the district. All water users seeking exclusion as are united in interest or to which the same state of facts apply may unite in the same petition. The grounds for exclusion and the time limitations for filing any petition hereunder shall be as follows:

The water user will not be benefited by the functioning of the district. A petition alleging this ground for exclusion must be filed within ninety (90) days after the formal appointment of the first board of directors by the department of water resources. Any such petition filed after the ninety (90) day period has elapsed shall not be accepted or considered.
The water user has not benefited by the functioning of the district. A petition alleging this ground for exclusion shall be filed no earlier than five (5) years after the declaration of the formation of the district by the director of the department of water resources.

A petition alleging either of the foregoing grounds for exclusion shall be acknowledged by all the petitioners and shall state in detail the reasons why it is claimed that the petitioners should be excluded from the district.

Any water user excluded from the district on the grounds specified in section 42-4225(1), Idaho Code, shall not be subject to assessment by the district for any purpose. Any water user excluded from the district on the grounds specified in section 42-4225(2), Idaho Code, shall not be subject to assessment for maintenance and operation of the works and facilities of the district or for assessment expenses after the entry of the order of exclusion, or in case of appeal, the effective date of exclusion, but shall remain subject to the following liabilities until discharged:

Such excluded water user shall remain liable for payment of assessments previously levied and unpaid at the time of the entry of the order of exclusion, or in case of appeal, the effective date of exclusion;
Such excluded water user, notwithstanding his exclusion, shall remain liable to pay his proportionate share, such share to be computed as specified in section 42-4215, Idaho Code, of any indebtedness of the district already incurred and outstanding at the time of the entry of the order of exclusion, or in case of appeal, the effective date of exclusion, but such water user shall not be liable upon any indebtedness incurred thereafter.

Any water user, as defined in section 42-4202(1), Idaho Code, who, after exclusion, remains subject to either or both of the liabilities specified herein shall, in addition, remain subject to the provisions of sections 42-4218, 42-4219, 42-4220 and 42-4221, Idaho Code, until such liabilities have been discharged. Any municipal water user, as defined in section 42-4202(2), Idaho Code, who, after exclusion, remains subject to either or both of the liabilities specified herein, shall, in addition, remain subject to the provisions of section 42-4222, Idaho Code, until such liabilities have been discharged.

History.

I.C.,§ 42-4231, as added by 1978, ch. 293, § 1, p. 723.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” refer to S.L. 1978, chapter 293, which is compiled as§§ 42-4201 to 42-4231.

Effective Dates.

Section 2 of S.L. 1978, ch. 293 declared an emergency. Approved March 29, 1978.

Chapter 43 [RESERVED]

Chapter 44 LEVEE DISTRICT ACT

Sec.

§ 42-4401. Short title.

The provisions of this chapter may be known and cited as the “Levee District Act.”

History.

I.C.,§ 42-4401, as added by 1990, ch. 396, § 1, p. 1108.

§ 42-4402. Policy of state.

It is hereby recognized by the legislature that the protection of life and property from the containment of water stored for irrigation, the storage of winter flows and excess waters for irrigation purposes, and flood waters are of great importance to this state. It is therefore declared to be the policy of the state to provide for the storage and containment of irrigation water and the prevention of flood damage in a manner consistent with the conservation and wise development of our water resources and thereby to protect and promote the health, safety and general welfare of the people of this state.

History.

I.C.,§ 42-4402, as added by 1990, ch. 396, § 1, p. 1108.

§ 42-4403. Definitions.

As used in this chapter:

“Board” or “board of commissioners” means the board of commissioners of the levee district.
“Commissioner” means a member of the board of commissioners of the levee district.
“District” means any levee district organized under the provisions of this chapter.
“Levee” means a retaining structure alongside a natural lake which has a length that is two hundred (200) times or more greater than its greatest height measured from the lowest elevation of the toe to the maximum crest elevation of the retaining structure.
“State” means the state of Idaho.

History.

I.C.,§ 42-4403, as added by 1990, ch. 396, § 1, p. 1108.

§ 42-4404. Corporate powers of levee districts.

Any portion of a county requiring the maintenance, operation, or construction of a levee to contain irrigation water or to prevent flooding, may be organized into a levee district, and when so organized such district and the board of commissioners hereinafter provided for shall have and possess the power herein conferred by law upon such district and board of commissioners, and said district shall be known and designated as levee district no. . . . . . . . of the county of . . . . . . . . . . . . . ., of the state of Idaho, and shall have the right to sue and be sued by and in the name of its board of commissioners hereinafter provided for, and shall have perpetual succession and shall adopt and use a seal. The commissioners hereinafter provided for and their successors in office shall, from the time of the organization of such levee district, have the power and it shall be their duty, to manage and conduct the business and affairs of the district, and make and execute all necessary contracts, employ and appoint such agents, officers and employees as may be required, and prescribe their duties, and perform such other acts as herein provided, or that may hereafter be provided by law.

History.

I.C.,§ 42-4404, as added by 1990, ch. 396, § 1, p. 1108.

§ 42-4405. Petition for organization.

For the purpose of the formation of a levee district a petition shall be presented to the clerk of the district court of the county in which the greater portion of the lands of the proposed levee district are located. The petition must be signed by at least one-fourth (¼) of the taxpayers of the district who pay a general tax on real property which is owned by them within the proposed district. The petition shall set forth:

The name of the proposed district;
The object of the organization of the proposed levee district;
A designation of the temporary boundaries of the district;
The approximate number of acres of land in the proposed district therein;
A description of the levee to be maintained, operated or constructed;
The general location of the levee;
A statement that the establishment of the district and the proposed maintenance, operation or construction of the levee will be conducive to the public health, convenience and welfare, or increase the public revenue, or that the establishment of said district and the maintenance, operation, or construction of the levee is a proper and advantageous method of accomplishing the relief sought; and
A prayer for organization of the district.

Any time after the filing of the petition for the organization of a district and before the day fixed for the hearing thereon, the owner or owners of any real property within the proposed district may file an objection with the court stating reasons why said property should not be included therein, why his land or any part thereof will not be benefited by the proposed district, and praying that said property be excluded therefrom. Such objection shall be duly verified and shall describe the property sought to be excluded. The court shall, at the hearing, examine and take testimony and evidence on all objections to inclusion in the district. In case any owner of real estate included in said proposed district shall satisfy the court that his real estate, or any part thereof, has been wrongfully included therein or will not be benefited thereby then the court shall exclude such real estate as will not be benefited.

Upon said hearing, if it shall appear that a petition for the organization of a district has been signed and presented as hereinabove provided, in conformity with this chapter, and the allegations of the petition are true, the court shall, by order duly entered of record, direct that the question of the organization of the district be submitted to the qualified electors of the district at an election to be held, subject to the provisions of section 34-106, Idaho Code, for that purpose, and such order shall appoint three (3) qualified electors of the district as judges of said election. The clerk of the court having jurisdiction shall publish notice of the time and place of an election to be held in the district.

I.C.,§ 42-4412, as added by 1990, ch. 396, § 1, p. 1108.

§ 42-4413. Finality of order.

To annually fix and determine the amount of money required to be raised by taxation to supply funds for costs of maintenance, operation, and/or construction of the levees and equipment of the district, and to levy and cause to be collected assessments on real property within the district in an amount not to exceed eight hundredths percent (.08%) of each dollar of market value for assessment purposes; provided, however, that a higher levy may be approved and ratified by the qualified voters at an election to be held, subject to the provisions of section 34-106, Idaho Code, for that purpose, and said levy shall be certified by the board to the board of county commissioners of the county, or counties, in which said district is located, with directions that at the time and in the manner required by law for levying taxes for county purposes, such board, or boards, of county commissioners shall levy such tax upon the real property within the boundaries of the district. Such certification of levies shall be prepared and forwarded by the board of the levee district to the board, or boards, of county commissioners on or before September 1, of each year.
To employ such personnel as may be necessary to carry out the purposes and objects of this chapter, with the full power to bind said district for the compensation of such personnel.
To sue and be sued in the name of the district; to have a seal, which seal shall be judicially noticed; to have perpetual succession unless terminated as hereinafter provided; to make and execute contracts and other instruments necessary or convenient to the exercise of its power and to promulgate, amend and repeal rules and regulations not consistent with the provisions of this chapter.
To manage and conduct the business and affairs of the district, both within and without the district.
To maintain, operate and/or construct levees for containment of irrigation water and for the prevention of floodwater whether within or without the boundaries of the district, and to enter into contract for the purposes set forth above; provided, however, that the board shall not enter into contracts except in accordance with the provisions of chapter 28, title 67, Idaho Code. However, where it is determined by order of the board that there is an existing emergency, the requirement for sealed competitive bids shall not apply.
To prescribe the duties of officers, agents and employees as may be required.
To establish the fiscal year of the district and to keep records of all business transactions of the district.
To prepare a statement of the financial condition of the district at the end of each fiscal year according to generally accepted accounting principles, and publish in at least one (1) issue of some newspaper published, or in general circulation in, the county, or counties, in which such district is located and to file a certified copy of such financial report with the director of the department of water resources. (9) To have an audit of the financial affairs of the district as required in section 67-450B, Idaho Code.

Said moneys shall be public funds and subject to the provisions of the public depository laws of the state.

(10) To obtain options upon and acquire by purchase, exchange, lease, gift, grant, bequest, devise, or otherwise, any property, real or personal, and improve any properties acquired; to receive income from such properties and to expend such income in carrying out the purposes and provisions of this chapter; to lease any of its property or interest therein in furtherance of the purposes and provisions of this chapter, provided that any contract or agreement for the acquisition, purchase or repair of personal property shall be entered into in accordance with the provisions of chapter 28, title 67, Idaho Code.

(11) To have the power of eminent domain for the use of the district in the maintenance, operation, and construction of its levees or any other use necessary in the carrying out of the provisions of this chapter.

(12) To convey rights-of-way and easements for highways, public roads, public utilities, and for other purposes, over district property, as shall be determined by the board to be in the best interests of the district.

(13) To convey, by deed, bill of sale, or other appropriate instrument, all of the estate and interest of the district, in any real or personal property. Prior to such sale or conveyance, the board shall have the property appraised by three (3) disinterested residents of the district, which appraisal shall be entered in the minutes of the board. The property may be sold at public auction or at a private sale by sealed competitive bids, as the board shall determine, to the highest cash bidder, provided that in no case shall any property of a district be sold for less than its appraised value. All sales by sealed competitive bids shall be advertised as herein provided.

(14) To enter into contracts or agreements with the United States or any of its officers, agents or subdivisions, or with the state or any of its officers, persons or agencies in effectuating, promoting and accomplishing the purposes of this chapter, provided that the district has sufficient moneys on hand, or in their budget for the year in which said contract is entered into, to defray the expenditure of funds called for in such contract without the creation of any indebtedness.

Whenever any such contract shall, by its terms, require the expenditure of funds by the district in excess of the moneys on hand or the funds to be realized from their budget for the year in which said contract is entered into, then such contract may not be entered into by the district until ratified by two-thirds (2/3) of the qualified voters voting at an election to be held, subject to the provisions of section 34-106, Idaho Code, for that purpose, according to the provisions of this chapter.

(15) To bear its allocated share of the cost of any project resulting from any contract or agreement entered into as provided herein.

(16) To take over, administer and maintain pursuant to any agreement or contract entered into in accordance with the provisions of this chapter, any levee project within or without the boundaries of the district undertaken in cooperation with the United States or any of its agencies, or with the state of Idaho or any of its agencies, or any combinations thereof.

(17) To accept donations, gifts and contributions in money, services, or materials or otherwise, from the United States or any of its agencies, or the state of Idaho or any of its agencies or any combinations thereof, and to expend such moneys, services, or materials in carrying on its operations.

History.

(18) To exercise all other powers necessary, convenient or incidental to carrying out the purposes and provisions of this chapter. History.

I.C.,§ 42-4416, as added by 1990, ch. 396, § 1, p. 1108; am. 1993, ch. 327, § 22, p. 1186; am. 1993, ch. 387, § 14, p. 1417; am. 1995, ch. 118, § 82, p. 417; am. 2005, ch. 213, § 12, p. 637.

STATUTORY NOTES

Cross References.

Public depository law,§ 57-101 et seq.

Compiler’s Notes.

§ 42-4417. Maintenance of system — District not to be operated for profit.

Any levee district organized under the provisions of this chapter is not to be conducted or operated for profit or with the view of paying dividends, but solely for the benefit and welfare of the residents and property owners of said district.

History.

I.C.,§ 42-4417, as added by 1990, ch. 396, § 1, p. 1108.

§ 42-4418. Interested persons — Right of examination.

Any person or corporation having an interest in, or lien upon, any land situate within the boundaries of a levee district now organized or existing, or hereafter organized under the laws of the state of Idaho, and which land has been, or hereafter may be, assessed for benefits for the maintenance, operation, or construction of levees in such district, as provided in this chapter, as shown by the assessment roll of said district, confirmed by the court, shall have the right personally, or through his agents, attorneys or auditors to examine the books, records and accounts of the board of commissioners and to make copies thereof.

History.

I.C.,§ 42-4418, as added by 1990, ch. 396, § 1, p. 1108.

Idaho Code Chs. 45 to 50

Chapters 45 to 50 [RESERVED]

Chapter 51 GROUND WATER MANAGEMENT DISTRICTS

Sec.

§ 42-5101. Legislative intent.

The legislature hereby declares that the welfare of the people of Idaho is dependent upon the effective management of the ground water resources of this state. The legislature further declares that a need exists for the creation of special districts to provide for financing of repair or abandonment of wells in aquifers which have experienced or are experiencing declines in water level or water pressures because of flow, leakage, and waste from improper construction, maintenance and operation of wells drilled into the aquifer. Creation of these special districts may be initiated upon petition submitted by those owning the rights to use the ground water from any aquifers or parts of an aquifer that has been designated as a critical ground water area pursuant to section 42-233a, Idaho Code, or as a ground water management area pursuant to section 42-233b, Idaho Code.

History.

I.C.,§ 42-5101, as added by 1987, ch. 349, § 1, p. 764.

§ 42-5102. Ground water management district formation.

For purposes of formation of a ground water management district, a petition shall be presented to the department of water resources which shall set forth the object of the organization of the district and the benefits to be provided by the district. The petition shall be accompanied by a map of the proposed district which shall indicate the proposed boundaries of the district, which shall include territory only within the boundaries of a critical ground water area or ground water management area designated by the director of the department of water resources.

The petition shall be signed by no less than fifty percent (50%), measured by the quantities of their various water rights, of the water users located within the proposed boundaries of the district. For purposes of this chapter, “water users” shall include the following:

Individuals, or entities, who are the current holders of a right, acquired in accordance with the provisions of chapter 2, title 42, Idaho Code, or chapter 14, title 42, Idaho Code, to appropriate water and to divert water from the aquifer by means of a well or wells, or who divert water from springs or other water courses emerging from such aquifer, or both.
Cities which obtain water from the aquifer. A city may elect to be included within the proposed district by a majority vote of the members of its city council. The mayor of any city so electing may sign the petition on behalf of the city, and such city shall constitute one (1) water user for purposes of securing the minimum number of signatures required for the petition.
Federal, state, or county government agencies which obtain water from the aquifer.

History.

I.C.,§ 42-5102, as added by 1987, ch. 349, § 1, p. 764.

§ 42-5103. Formation of district — Declaration by director.

After receipt of the petition and map, the director shall review and examine the same and may require the submission of such additional or revised data concerning the boundaries of the proposed district, the costs of repairs or abandonment of improperly constructed wells or any other matter relevant to the formation of the district as he may deem necessary. The director shall conduct a hearing on the petition and supporting documents. Notice of the time and place of the hearing shall be published by the director in a newspaper or newspapers published in each of the counties or a newspaper of general circulation therein at least three (3) weeks before the date of the hearing.

Within ninety (90) days after the hearing has been concluded, the director after due consideration of all relevant data and testimony shall determine whether the proposed district will provide the benefits described, whether the boundaries proposed are proper with respect to the benefits to be provided, and whether the formation of the district will serve the interest of the water users proposed to be benefited. On the basis of his determination, the director shall enter an order either establishing the ground water management district and defining the boundaries thereof to reflect the area to be benefited or denying the formation of the district. If the director orders formation of the district, he shall cause copies of the order, duly certified, to be filed with the secretary of the state and board of county commissioners, county recorder, county assessor and county treasurer of each county in which any part of the district is situated.

History.

I.C.,§ 42-5103, as added by 1987, ch. 349, § 1, p. 764.

§ 42-5104. Board of directors — Composition — Appointment of first board — Election of subsequent boards.

The board of directors of the ground water management district shall consist of three (3) members. Each member shall be a water user, or representative of a water user within the district.
The first board of directors shall be appointed by the director of the department of water resources. Water users within the district, or groups thereof, may submit to the director, or the director may solicit therefrom, the names of qualified individuals to be considered for appointment to the board.
The term of office of the directors shall be determined by lot so that one (1) member shall serve for a term of three (3) years, one (1) member shall serve for a term of two (2) years, and one (1) member shall serve for a term of one (1) year. Thereafter, members shall serve a three (3) year term and shall be elected as hereinafter provided. If a vacancy occurs, the director shall appoint a successor to serve the remainder of the term.
On the first Tuesday in February following the expiration of the term of the member serving for one (1) year, and on the first Tuesday in February of each year thereafter, an election shall be held at which a director to succeed the one whose term has expired will be elected. Each director so elected shall be a water user or a representative of a water user within the district.

History.

I.C.,§ 42-5110, as added by 1987, ch. 349, § 1, p. 764.

§ 42-5111. Board of directors — Officers — Meetings — Compensation — Vacancies.

The board of directors annually shall elect a chairman from their number and shall appoint a secretary and a treasurer to hold office at the pleasure of the board. The treasurer shall on his appointment execute and file with the secretary an official bond in such amount as may be fixed by the board of directors, and shall thereafter from time to time execute and file such further bonds as may be required by the board in amounts fixed by it, which amounts shall be at least fifty percent (50%) of the maximum probable amount of money in the treasurer’s hands at any one (1) time. All such official bonds shall be executed by a lawfully qualified surety company.
The board of directors shall hold a regular annual meeting and may hold such special meetings as may be necessary for the proper transaction of business. Special meetings may be held on seventy-two (72) hours’ notice of the chairman or a majority of the members. A majority shall constitute a quorum for the transaction of business and the concurrence of a majority of the members shall be necessary to constitute the action of the board. All meetings of the board shall be public and all records of the board shall be open to the inspection of any member water user, or representative thereof during business hours.
The members of the board shall each receive not more than twenty-five dollars ($25.00) nor less than five dollars ($5.00) per day for each day spent attending the meetings or while engaged in official business of the board, and actual and necessary travel expenses. The term “actual and necessary expenses” shall include all traveling and lodging expenses necessarily incurred by any director when absent from his residence in the performance of the duties of his office. The board shall fix the compensation to be paid to the other officers of the district.
In case of a vacancy in the office of director occurring otherwise than by the expiration of a term, the remaining members of the board of directors shall fill such vacancy by appointing thereto a qualified water user, member of the district, or representative thereof, possessing the qualifications of the director whose office has become vacant to serve the remainder of the term.

History.

I.C.,§ 42-5111, as added by 1987, ch. 349, § 1, p. 764.

§ 42-5112. Powers and duties of board of directors.

The board shall have the following powers and duties:

To manage and conduct the business and affairs of the district;
To employ and appoint such agents, officers and employees as may be required to perform the duties as set out in this chapter and prescribe their duties;
To incur indebtedness, for the purpose of financing repair or abandonment of wells in the district, the term of which shall not exceed ten (10) years, by contract with a money-lending institution, including the Idaho water resource board;
To levy assessments for the retirement of indebtedness incurred for purposes of financing repair or abandonment of wells in the district and for the cost of operating the district, including participating in state and/or federal aquifer monitoring programs;
To contract with owners of wells in the district which require repair or abandonment as ordered by the director of the Idaho department of water resources to effectuate repair or abandonment of such wells. The contracts may include financial participation in repair or abandonment, as necessary, to meet minimum well construction standards adopted by the Idaho water resource board, as follows:
1. Repair of wells which owners intend to continue to use: grants of up to fifty percent (50%) of total cost of repair; loans at interest rates and terms determined by the board of directors of up to one hundred percent (100%) of total cost of repair;
2. Abandonment of wells which owners do not intend to continue to use: grants or loans of up to one hundred percent (100%) of total cost; total cost of repair or abandonment includes all costs, including technical evaluation, design and inspections;
To contract with the director of the department of water resources to evaluate proposed contracts with well owners to evaluate the repairs or other work proposed and the costs of the proposed work;
To adopt rules, in accordance with the administrative procedure act, chapter 52, title 67, Idaho Code, for determining the percentage of the total repair or abandonment cost that the district will grant or loan, the maximum amounts of grants and loans and their terms, a procedure for determining which water users will be given the financial assistance offered by the district, and a limitation on the total indebtedness of the district. For the purposes of chapter 52, title 67, Idaho Code, the district shall be considered an agency. Among the factors to be considered by the board of directors in the adopted rules shall be the following:
1. Characteristics of the well to be repaired or abandoned; i.e., location, depth, diameter, depth to water or water pressure in the well, rate of leakage above and below land surface, and the purpose of the well;
2. Financial ability of the owner;
3. Estimated relative impact of the repair or abandonment on water levels or pressures in the aquifer and in surrounding wells;
4. Total number and estimated total cost of repairs to be made in the district as compared to the repayment capability from allowable annual assessments to be collected by the district; and
5. Orders and recommendations of the director of the Idaho department of water resources; (8) To accept gifts and grants or to enter into cost share agreements with any person, corporation, association or governmental agency in furtherance of the purposes of this chapter;

(9) To enter upon any land to make inventories, surveys, and monitoring or construction inspections in furtherance of the purposes of this chapter;

(10) To do any and every lawful act necessary to be done that the provisions of this chapter may be carried out;

(11) At such intervals as the director of the department of water resources shall establish, the board of directors shall report to the director, in the form and manner prescribed by him, concerning the operations of the district;

(12) The board of directors annually shall submit to the director of the department of water resources a financial report setting forth the financial condition of the district. The report shall be in the form prescribed by the director and shall specify the amount of the assessments levied by the district for the year, the outstanding obligations of the district, and such other information as the director may require. The director shall have the authority to conduct an audit of the financial transactions and operations of the district.

(13) To adopt and implement a plan for the repair of leaking artesian wells within the district.

History.

I.C.,§ 42-5112, as added by 1987, ch. 349, § 1, p. 764; am. 1995, ch. 294, § 2, p. 1036.

§ 42-5113. Levy of assessments.

At a regular meeting of the board between August 1 and November 1 of each year, the board of directors shall determine the amount necessary to be raised for payment of the annual payment on any and all indebtedness of the district for the following year. Money received in payment of such assessments shall be deposited in a separate fund to be known as the debt retirement fund. The board of directors may, in addition, determine the amount necessary to pay the expenses of making the assessment book, giving notice of assessments and making collections thereof and for the cost of contracts with state or federal agencies for monitoring programs, or evaluation of proposed contracts, and may levy assessments against the water users in the district sufficient to raise such amount. Money received in payment of such assessments shall be deposited in a separate fund to be known as the operating expense fund.

Any water user as defined in section 42-5102, Idaho Code, in any district joining in the petition or any other person interested in the contracts or proposed contracts may appear and answer said petition at any time prior to the date fixed for said hearing or within such further time as may be allowed by the court; and the petition shall be taken as confessed by all persons who fail so to appear. The said petition and notice shall be sufficient to give the court jurisdiction and, upon hearing, the court shall examine into and determine all matters and things affecting the question submitted, shall examine all of the proceedings of all of the districts as set forth in the petition, shall hear all objections either filed in said proceeding or brought up from the hearings before any of the boards, shall correct all errors in the assessments and apportionments of costs, shall ratify, approve and confirm all apportionments of costs and assessments levied, shall make such findings with reference thereto and render a judgment and decree thereon approving and confirming all of the powers, assessments, apportionments, acts, proceedings and contracts of each of the districts as set forth in the petition as the case warrants. Costs may be divided or apportioned among the contesting parties in the discretion of the trial court. Review of the judgment of the court may be had as in other similar cases, except that such review must be applied for within thirty (30) days after the time of the rendition of such judgment, or within such additional time as may be allowed by the court within thirty (30) days. The Idaho Rules of Civil Procedure shall govern in matters of pleading and practice where not otherwise specified herein. The court shall disregard any error, irregularity or omission which does not affect the substantial rights of the parties. Except as provided herein, the provisions of sections 43-406 through 43-408, Idaho Code, shall apply to the proceeding herein authorized as though the ground water management district were an irrigation district. History.

I.C.,§ 42-5116, as added by 1987, ch. 349, § 1, p. 764.

§ 42-5117. Judicial proceedings to test validity.

In the event that any official required to participate in any act leading to the calling or holding of the required election or the execution of any required contract shall refuse to perform such act alleging as his reason illegality of the proposed election or the proposed contract, the board may institute judicial proceedings to compel such steps to be taken and legality of the election or the contract to be determined. All cases in which there may arise a question of the validity of any proceeding under this act shall be advanced as a matter of immediate public interest and concern, and heard at the earliest practicable moment. The courts shall be open at all times for the purposes of this act.

History.

I.C.,§ 42-5117, as added by 1987, ch. 349, § 1, p. 764.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” in the last two sentences refer to S.L. 1987, chapter 349, which is compiled as§§ 42-5101 to 42-5132.

§ 42-5118. Tax exemption.

Interim notes, and the interest thereon, issued pursuant to the authority contained in this chapter shall be exempt from taxation under the Idaho income tax law.

History.

I.C.,§ 42-5118, as added by 1987, ch. 349, § 1, p. 764.

STATUTORY NOTES

I.C.,§ 42-5121, as added by 1987, ch. 349, § 1, p. 764.

§ 42-5122. Payment of assessments — When delinquent — Interest and penalties.

Assessments unpaid on December 31 shall be delinquent and shall bear interest at the rate of fifteen percent (15%) per annum until paid. Delinquent assessments, in addition, shall be subject to a penalty in the amount of fifteen dollars ($15.00) per delinquent assessment.

The maximum annual assessment limitation specified in section 42-5113, Idaho Code, shall apply only to the amount of the assessment itself, and the interest and penalty herein prescribed shall be collectible along with the amount of the delinquent assessment, notwithstanding that the assessment itself is at the maximum specified in that section.

History.

I.C.,§ 42-5122, as added by 1987, ch. 349, § 1, p. 764.

§ 42-5123. Entry of delinquent assessments — Filing of delinquency list.

History.

I.C.,§ 42-5123, as added by 1987, ch. 349, § 1, p. 764.

§ 42-5124. Redemption and sale of property subject to delinquent assessments.

History.

I.C.,§ 42-5124, as added by 1987, ch. 349, § 1, p. 764.

§ 42-5125. Water users subject to inclusion within the district.

All water users, as defined in subsection (1) of section 42-5102, Idaho Code, included within the district and who have not obtained exclusion as hereinafter provided, shall remain within and be subject to assessment by the district, notwithstanding the absence of their signatures on the petition for formation of the district, and notwithstanding any change in the ownership or control of the property of the water user, whether by way of transfer, exchange, conveyance, assignment, lease, or otherwise, to which the water right or rights used to determine assessments are appurtenant. Municipal water users, as defined in subsection (2) of section 42-5102, Idaho Code, included within the district shall remain upon their election, within and be subject to assessment by the district unless excluded in the manner hereinafter provided.
Any water user, as defined in subsection (1) of section 42-5102, Idaho Code, who has obtained exclusion from the district, but who nevertheless is benefited by the district, shall remain excluded; provided, however, that any person or entity succeeding the water user in the ownership or control of property, whether by way of transfer, exchange, conveyance, assignment, lease, or otherwise, to which is appurtenant a water right that, barring the exclusion, would have been used to determine assessments, shall be deemed included within and subject to assessment by the district.
Any individual or entity whose permit to appropriate water was acquired after the formation of the district but who qualifies as a water user under subsection (1) of section 42-5102, Idaho Code, in all other respects, shall be deemed included within and subject to assessment by the district if benefited either directly or indirectly by the district.

History.

I.C.,§ 42-5125, as added by 1987, ch. 349, § 1, p. 764.

§ 42-5126. Exclusion from the district — Procedure — Grounds for exclusion.

After the formation of the district, any water user included within the district may file with the board of directors a petition in writing, praying for exclusion from the district. All water users seeking exclusion as are united in interest or to which the same state of facts apply may unite in the same petition. The grounds for exclusion and the time limitations for filing any petition hereunder shall be as follows:
1. The water user will not be benefited by the functioning of the district. A petition alleging this ground for exclusion must be filed within ninety (90) days after the adoption of a resolution to incur indebtedness as authorized in section 42-5114, Idaho Code. Any such petition filed after the ninety (90) day period has elapsed shall not be accepted or considered, except upon a showing of good cause for the delay.
2. The water user has not benefited by the functioning of the district. A petition alleging this ground for exclusion shall be filed no earlier than five (5) years after the adoption of a resolution to incur indebtedness as authorized in section 42-5114, Idaho Code.
3. A petition alleging either of the foregoing grounds for exclusion shall be acknowledged by all the petitioners and shall state in detail the reasons why it is claimed that the petitioners should be excluded from the district.
Immediately after the formal appointment, the board of directors shall cause notice of the deadline for filing petitions under the provisions of subsection (1) of this section and a copy of the order of formation of the district and a map indicating the boundaries of the district to be posted in three (3) public places in each county in which a part of the district is situated. In addition, the board shall publish notice of the deadline and the location at which the order of formation and map of the district may be inspected for at least four (4) successive weeks in a newspaper published or having general circulation in each of the counties in which any part of the district is situated.

History.

I.C.,§ 42-5126, as added by 1987, ch. 349, § 1, p. 764.

§ 42-5127. Hearing — Notice — Entry of order.

The petition shall be heard by the board of directors within sixty (60) days of filing of the petition and if no hearing is held within that time the petitioner or petitioners shall be deemed excluded from the district. If, prior to the date set for the hearing, the board issues an order excluding the petitioner or petitioners, no hearing need be held. The board shall give each petitioner notice of the time and place of the hearing in writing not less than fifteen (15) days prior to the hearing. It shall be sufficient to mail such notice by certified or registered mail to each petitioner’s mailing address as indicated on the petition.
At the hearing, if any, the petitioner or petitioners must establish by competent evidence the allegations of the petition. The chairman of the board is hereby empowered to administer oaths for the purpose of the hearing. If the allegations of the petition are established the board shall enter an order excluding the petitioner or petitioners, or any of them, from the district, which order shall reflect the nature of any outstanding and/or continuing liabilities to which the petitioner so excluded shall remain subject under the provisions of section 42-5129, Idaho Code.

History.

I.C.,§ 42-5127, as added by 1987, ch. 349, § 1, p. 764.

§ 42-5128. Appeal.

§ 42-5131. Exclusion to be recorded.

History.

I.C.,§ 42-5131, as added by 1987, ch. 349, § 1, p. 764.

§ 42-5132. Severability.

History.

I.C.,§ 42-5132, as added by 1987, ch. 349, § 1, p. 764.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” refer to S.L. 1987, chapter 349, which is compiled as§§ 42-5101 to 42-5132.

Chapter 52 GROUND WATER DISTRICTS

Sec.

§ 42-5201. Short title — Title of districts — Definitions.

This chapter is known as the “Ground Water District Act”; the districts created hereunder may be termed “ground water districts.” When used in this chapter, and unless otherwise specified, the following terms shall be defined as follows:

“Board” means the board of directors of a ground water district organized pursuant to this chapter.
“Corporation” means a corporation or limited liability company.
“County commission” means the board of county commissioners or any other governing board or authority for a county, as provided by law.
“Department” means the Idaho department of water resources.
“Director” means the director of the department of water resources.
“District” means a ground water district established, or to be established, pursuant to this chapter.
“Ground water” when used in this chapter means water under the surface of the ground whatever may be the geologic structure in which it is standing or moving, as provided in section 42-230(a), Idaho Code.
“Ground water user” means the legal or beneficial owner of a ground water right, or the user of a ground water right pursuant to lease or contract of a ground water right to divert ground water of the state for a beneficial use or purpose, except for those diverting under rights used solely for domestic or stock use as defined by sections 42-111 and 42-1401A, Idaho Code, and provided, that for purposes of this chapter, the term ground water user shall not include any ground water right held by or on behalf of an Indian tribe or by tribal members for diversion and use within an Indian reservation, ground water rights held by the United States or ground water rights held by the state of Idaho. A ground water user is within the boundary of a ground water district if the well or other point of diversion used by that ground water user is within the boundary. A husband and wife together diverting ground water pursuant to right shall constitute one (1) ground water user. Ground water user includes both a ground water irrigator and a nonirrigator as defined in this chapter.
“Ground water irrigator” means a ground water user holding a ground water right for irrigation purposes within a ground water district.
“Land” or “lands,” when used in the context of the property of a ground water user subject to district assessment under this chapter, means the real property where ground water is diverted or placed to beneficial use, including the facilities in or through which a ground water user makes beneficial use of ground waters.
“Nonirrigator” means a ground water user holding a ground water right for commercial, municipal, or industrial purposes within a ground water district. A ground water user will be deemed a nonirrigator for purposes of this chapter even though: (a) some component of the user’s ground water use is for irrigation; or (b) the user holds a ground water right for irrigation that is incidental to, or normally associated with, the user’s commercial, municipal or industrial purpose.
“Member” means a ground water user whose lands, facilities and/or water rights are included in and subject to a ground water district and its policies.
“Mitigation plan” means a plan to prevent or compensate for material injury to holders of senior water rights caused by the diversion and use of water by the holders of junior priority ground water rights who are participants in the mitigation plan. (14) “Person” means an individual, partnership, trust, estate, association, corporation, municipal corporation, the state of Idaho and any of its agencies, the United States, an Indian tribe, a public corporation, or any other public or private entity.

(15) “Public corporation” means counties, city and counties, cities, school districts, municipal water districts, irrigation districts, recharge districts, water districts, park districts, subdistricts, and all other governmental agencies of this state, having the power of levying or providing for the levy of general or special taxes or special assessments, and any political subdivision of another state of the United States.

(16) “Water right” means the legal right to divert and beneficially use the public waters of the state of Idaho where such right is evidenced by a decree, a permit or a license issued by the department, a beneficial or constitutional use right evidenced by an adjudication claim or claim based on section 42-243, Idaho Code, or a right based on federal law.

History.

I.C.,§ 42-5201, as added by 1995, ch. 290, § 1, p. 982; am. 1997, ch. 374, § 7, p. 1192; am. 2005, ch. 367, § 1, p. 1155.

STATUTORY NOTES

Effective Dates.

Section 2 of S.L. 1995, ch. 290 declared an emergency. Approved March 21, 1995.

Section 8 of S.L. 1997, ch. 374 declared an emergency. Approved March 24, 1997.

I.C.,§ 42-5204, as added by 1995, ch. 290, § 1, p. 982.

STATUTORY NOTES

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

§ 42-5205. Notice of county commission hearing.

When the petition is presented, the county commission shall set a time for a hearing on the petition, which shall not be less than four (4) nor more than eight (8) weeks from the date of presentation, unless extended by the county commission for good cause. A notice of the time of such hearing shall be published by the county clerk, at the direction of the commission, at least three (3) weeks before the time of such hearing, in a newspaper or newspapers as required in section 42-5204, Idaho Code.

History.

I.C.,§ 42-5205, as added by 1995, ch. 290, § 1, p. 982.

§ 42-5206. Examination by department of water resources — Report to county commission — Amendment of plan.

A copy of the petition and all maps and other papers filed with the county commission shall be filed with the department on the same day the petition is filed with the county commission.
The department shall examine the petition, maps and other papers submitted in support of it, and, taking into account hydrological factors, patterns of ground water use, or other attributes of the area that may aid the county commission, prepare a report upon the boundaries proposed for the district and submit the report to the county commission at least two (2) weeks before the meeting set for the commission to hear the petition.

History.

I.C.,§ 42-5206, as added by 1995, ch. 290, § 1, p. 982.

§ 42-5207. Organization hearing before county commission — Order of county commission.

After receiving the report of the department of water resources, the county commission shall conduct a hearing on the petition. If the county commission determines that the requisite number of signatures were not gathered on the petition, the board shall adjourn the hearings for two (2) weeks for the purpose of enabling the petitioners to gather additional signatures. The petitioners may amend the boundaries of the proposed district at the hearing to include or exclude lands of those ground water irrigators who provide written notice or who appear at the hearing requesting that their lands be either included or excluded, to meet the recommendations of the department, or as they may find advisable to achieve suitable district boundaries. The county commission shall accept any additional nominations of persons to be directors at the hearing or the nominations may be filed with the county clerk. The nominations must be signed by at least six (6) ground water users from the proposed district.
When the county commission has determined to proceed with the petition, it may adjourn the hearing from time to time, not exceeding four (4) weeks in all, and on final hearing, the county commission:
1. May make such other changes in the proposed boundaries of the district and divisions within the district as it may find proper; and
2. Shall make an order on its records describing the area which it shall have determined to include in the district, and stating that lands of ground water users within such area will be organized into a ground water district if the vote of the electors accepts organization of the district.
The county commission shall notify the department of the final action by mailing or faxing a copy of the order to the department within seven (7) days of the board’s decision. If the boundaries of the proposed ground water district differ from the boundaries contained in the department’s original report, the department shall prepare a revised list of the ground water users within such proposed district by name, address, ground water right number, point of diversion, and cubic feet per second per ground water right and return it to the county commission.

History.

I.C.,§ 42-5207, as added by 1995, ch. 290, § 1, p. 982.

§ 42-5208. Divisions of district for election of directors.

The county commission shall also make an order dividing the district into not less than three (3) nor more than seven (7) divisions, each division to contain approximately the same amount, measured in cubic feet per second, of ground water rights as each other division. The divisions shall be numbered first, second, third, etc., and one (1) director, who shall be a ground water user in the division, shall be elected from each division of the district at large. The number of divisions into which the district shall be divided shall be specified in the petition for the organization of the district, and if not otherwise specified shall be three (3).

History.

I.C.,§ 42-5208, as added by 1995, ch. 290, § 1, p. 982.

§ 42-5209. Notice of election. — The county commission shall give notice of an election to be held in accordance with section 34-106, Idaho Code, in the proposed district for the purpose of determining whether the district shall be organized under this chapter, and, if so, who shall be its initial directors. The notice shall describe the area, with the certainty required in an ordinary deed, where, if a ground water user is located within that area, that ground water user would be included in the district and shall state the name of the proposed district as designated by the commission, and shall state that a map showing the area of the district is on file in the office of the county clerk, which map, if not previously made, shall be made by the petitioners after the determination of the commissioners of the boundary of the proposed district, and shall state the names of those individuals who have been nominated for director’s positions. The notice shall be published for four (4) weeks prior to such election, in a newspaper or newspapers as required in section 42-5204, Idaho Code. The notice shall require the electors to cast ballots which shall contain the words “ground water district—yes,” or “ground water district

no,” and also to cast ballots for at least one (1) person from each division for director of the district.

History.

I.C.,§ 42-5209, as added by 1995, ch. 290, § 1, p. 982.

§ 42-5210. Qualifications of voters for district elections.

Any ground water irrigator, and any nonirrigator who is a member for all purposes, within the proposed district shall be entitled to vote at any election held under the provisions of this chapter. The production of documentation of a water right as described in section 42-5201(16), Idaho Code, shall be sufficient evidence of ground water use for purposes of acting as an elector under this chapter. A representative of a ground water user shall be so designated by written proxy signed by the ground water user except that the vote of a state, city or county government may be cast by an elected or appointed official of the agency, or his designee. A corporation or partnership shall vote or otherwise act by a single individual who is authorized by the corporation or partnership to act on its behalf. A corporation or partnership must furnish the election officials a written designation stating the name of the individual who is authorized to vote and otherwise act for the corporation or partnership.
Any ground water user who becomes a member of a district solely for mitigation purposes:
1. Shall be entitled to vote only in those district elections concerning whether to incur indebtedness as specified in section 42-5234, Idaho Code; and
2. Shall be ineligible to nominate directors or officers of the district, to serve in such capacities, or otherwise to participate in the governance of the district.
A nonirrigator may participate in the election to determine whether a district will be formed only according to the following provisions:
1. The nonirrigator shall notify the judges of election in writing at least ten (10) working days prior to the date of the election that such person supports the formation of the district, elects to become either a member for all purposes, or a member only for mitigation purposes as described in section 42-5214, Idaho Code, should it be formed, and, by such notice, casts its vote(s) in favor of formation.
2. The notification shall contain a legal description of the land through which the nonirrigator places ground waters to beneficial use, a statement of the amount of such person’s ground water right in cubic feet per second of diversions, and a copy of the ground water right documentation described in section 42-5201(16), Idaho Code.
3. Once the judges of election have accepted the notification described in subsection (3)(b) of this section, they shall duly record the nonirrigator’s vote(s) in favor of district formation in the canvassing of votes carried out pursuant to section 42-5213, Idaho Code.
4. If the voting results in the formation of the district, the nonirrigator who provided such notification thereafter shall be a full member or member for mitigation purposes of such district, whichever the case may be, and shall have all obligations, rights, and limitations attaching thereto.

History.

(4) Each ground water user shall have one (1) vote for each cubic foot per second, or proportion thereof (rounded to the nearest tenth of a cubic foot per second), for which such ground water user holds a ground water right whose point of diversion is within the proposed district boundaries. History.

I.C.,§ 42-5210, as added by 1995, ch. 290, § 1, p. 982; am. 1996, ch. 298, § 4, p. 977; am. 2005, ch. 367, § 2, p. 1155.

STATUTORY NOTES

Compiler’s Notes.

The “s” and words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 20 of S.L. 2005, ch. 367 declared an emergency. Approved April 12, 2005.

§ 42-5211. Conduct of elections.

Elections shall be conducted as nearly as practicable in accordance with the general laws of the state; provided, no particular form of ballot shall be required, and that the provisions of the election laws as to the form and distribution of ballots shall not apply.
The county commission shall establish one (1) or more election precincts, not exceeding seven (7), as may be necessary, and define the boundaries thereof, which boundaries, when the district is divided into precincts, shall be the same as the division boundaries above-provided for and which said precincts may thereafter be changed by the board of directors of such district as may be necessary; provided, that districts shall have not less than three (3), nor more than seven (7) voting precincts.
The county commission shall also appoint three (3) judges of election for each such election precinct, who shall perform the same duties as near as may be as judges of election, under the general laws of the state.

Amendments.

The 2006 amendment, by ch. 355, substituted “nonirrigators as defined in subsection (11) of section 42-5201, Idaho Code” for “municipal, commercial, industrial, federal and tribal ground water users in subsection (1) of this section” in subsection (4).

Effective Dates.

Section 20 of S.L. 2005, ch. 367 declared an emergency. Approved April 12, 2005.

I.C.,§ 42-5219, as added by 1995, ch. 290, § 1, p. 982; am. and redesig. 2005, ch. 367, § 5, p. 1155.

STATUTORY NOTES

Compiler’s Notes.

This section, which was originally compiled as§ 42-5219, was amended and redesignated as§ 42-5218A by § 5 of S.L. 2005, ch. 367.

Effective Dates.

I.C.,§ 42-5222, as added by 1995, ch. 290, § 1, p. 982; am. and redesig. 2005, ch. 367, § 8, p. 1155.

STATUTORY NOTES

Compiler’s Notes.

This section, which was originally compiled as§ 42-5222, was amended and redesignated as§ 42-5218D by § 8 of S.L. 2005, ch. 367.

Effective Dates.

Section 20 of S.L. 2005, ch. 367 declared an emergency. Approved April 12, 2005.

§ 42-5219. Directors at large.

In the event a district is divided into six (6) or fewer divisions, the district is authorized to elect one (1) to two (2) directors at large. Directors at large shall be elected at the annual meeting of the district by a two-thirds (2/3) majority of the members present at the meeting. Every director at large elected pursuant to the provisions of this section shall be a ground water user in the district. Directors at large shall hold office for a term of two (2) years, or until their successors are elected and qualified. Provided however, that in no event shall a district have more than a total of seven (7) directors serving at any time whether elected pursuant to the provisions of section 42-5218, Idaho Code, or pursuant to this section.

History.

I.C.,§ 42-5219, as added by 2005, ch 367, § 9, p. 1155.

STATUTORY NOTES

Compiler’s Notes.

Former§ 42-5219 was amended and redesignated as§ 42-5218A, effective April 12, 2005, pursuant to S.L. 2005, ch. 367, § 5.

Effective Dates.

Section 20 of S.L. 2005, ch. 367 declared an emergency. Approved April 12, 2005.

§ 42-5220 — 42-5222. [Amended and Redesignated.]

STATUTORY NOTES

Compiler’s Notes.

Former§§ 42-5220 to 42-5222 were amended and redesignated as§§ 42-5218B to 42-5218D, respectively, effective April 12, 2005, pursuant to S.L. 2005, ch. 367, §§ 6 to 8.

§ 42-5223. Board of directors — Officers — Meetings — Compensation — Vacancies.

The board of directors annually shall elect a chairman from their number and shall appoint a secretary and a treasurer to hold office at the pleasure of the board. Upon appointment the treasurer shall execute and file with the secretary an official bond in such amount as may be fixed by the board of directors, and shall thereafter from time to time execute and file such further bonds as may be required by the board in amounts fixed by it, which amounts shall be at least fifty percent (50%) of the maximum probable amount of money in the treasurer’s hands at any one (1) time. All such official bonds shall be executed by a lawfully qualified surety company.
The board of directors shall designate an office of the district.
The board of directors shall hold a regular monthly meeting in the district’s office on the first Tuesday in every month or such date each month as it shall fix by resolution, and such special meetings as may be required for the proper transaction of business. Special meetings may be held on seventy-two (72) hours’ notice of the chairman or a majority of the members. A majority shall constitute a quorum for the transaction of business and the concurrence of a majority of the members shall be necessary to constitute the action of the board. All meetings of the board shall be public and all records of the board shall be open to the inspection of any member water user, or representative thereof during business hours.
The members of the board of directors shall fix the compensation board members shall receive for each day spent attending the meetings, or while engaged in official business under the order of the board, together with actual and necessary expenses. The term “actual and necessary expenses” shall include all traveling and lodging expenses necessarily incurred by any director when absent from his residence in the performance of the duties of his office. The board shall fix the compensation to be paid to the other officers of the district.
In case of a vacancy in the office of director occurring otherwise than by the expiration of a term, the remaining members of the board of directors shall fill such vacancy by appointing a ground water user who is a member of the district or a representative thereof, possessing full voting qualifications under this chapter and the qualifications of the director whose office has become vacant to serve the remainder of the term.

History.

I.C.,§ 42-5223, as added by 1995, ch. 290, § 1, p. 982.

§ 42-5224. Powers and duties of board of directors.

The board shall, in addition to any other powers and duties provided in this chapter, and provided that nothing in this chapter shall abrogate or impair the right of any person to take any action necessary to acquire, protect, challenge or defend any water right, have the following powers and duties:

To acquire, and/or construct, operate, control or use by appropriation, grant, purchase, bequest, devise, contract or lease works or facilities, water rights, water permits or licenses, well-drilling permits, wells, pipelines, ditches and any other real and personal property (including easements and rights-of-way) or contract entitlement within or without the district necessary or convenient to fully exercise its powers;
To sell, lease, encumber, alienate, or otherwise dispose of works or facilities, water, water rights, wells, pipelines, ditches, reservoirs, recharge facilities, and any other real and personal property owned by the district within or without its boundaries, and to incur indebtedness on behalf of the district as specified in this chapter;
To enter into contracts and agreements, cooperative and otherwise, including contracts with the United States of America and any of its agencies or instrumentalities, and tribes, and contracts with corporations, public or private, municipalities, or governmental subdivisions necessary or convenient to fully exercise its powers;
To hire and retain agents, employees, engineers, hydrologists, geologists, and attorneys as shall be necessary and convenient to transact the district’s business and to represent the district’s interests;
To levy assessments for the operation of the district and its programs;
To represent district members, with respect to their individual water rights, in general water rights adjudications and other legal and administrative proceedings or before political bodies, provided that the board may levy assessments for these matters against only those members who have given written consent for the representation;
To represent district members in proceedings or meetings of a water district established by the director of the department notwithstanding any provision to the contrary in chapter 6, title 42, Idaho Code. Provided however, that the board shall not be authorized to cast a vote in any proceeding or meeting of a water district established pursuant to chapter 6, title 42, Idaho Code, on behalf of any district member who has, prior to such proceeding or meeting, given written notice to the board and to the water district that such district member intends to vote on his own behalf, or on behalf of any district member who attends such meeting or proceeding and intends to vote on his own behalf. The board shall provide a verified list of the water rights that it represents at any water district proceeding or meeting to the chairman of the water district proceeding or meeting;
To appropriate, develop, store, and transport water within the state;
To acquire stock in canal companies, water companies, and water users’ associations;
To invest any surplus money in the district treasury pursuant to the public depository law as contained in chapter 1, title 57, Idaho Code;
To develop, maintain, operate and implement mitigation plans designed to mitigate any material injury caused by ground water use within the district upon senior water uses within and/or without the district; (12) To finance the repair or abandonment of wells in the ground water district which have experienced or are experiencing declines in water level or water pressures because of reasons including, but not limited to, flow, leakage, and waste from improper construction, maintenance, and operation of wells;

(13) To have and exercise the power of eminent domain in the manner provided by law for the condemnation of private property for easements, rights-of-way, and other rights of access to property necessary to the exercise of the mitigation powers herein granted, both within and without the district;

(14) To sue and be sued, and be a party to suits, actions and proceedings;

(15) To enter into joint powers agreements and/or memoranda of understanding with other districts, governmental or quasi-public entities;

(16) To develop and acquire water rights for, and operate, aquifer storage or recharge projects;

(17) To monitor, measure, study, and implement programs in the interests of the district’s members regarding the protection of ground water diversions, depth of water in wells, aquifer water levels and characteristics;

(18) To adopt and amend bylaws not in conflict with the constitution and laws of the state for carrying on the business, objects and affairs of the board and of the district and to establish a fiscal year;

(19) To enter upon land to make surveys, locate district property, works, or facilities, and to otherwise conduct the affairs of the district;

(20) To make, record and report annually to the director sufficient measurements of diversions and water levels of district members to allow the district to be excluded from any water measurements district created pursuant to sections 42-705 through 42-715, Idaho Code;

(21) To manage and conduct the affairs of the district and to have and exercise all rights and powers necessary or incidental to or implied from the specific powers granted herein. Such specific powers shall not be considered as a limitation upon any power necessary or appropriate to carry out the purposes and intent of this chapter.

History.

I.C.,§ 42-5224, as added by 1995, ch. 290, § 1, p. 982; am. 1996, ch. 298, § 8, p. 977; am. 2003, ch. 137, § 1, p. 400; am. 2005, ch. 367, § 10, p. 1155.

STATUTORY NOTES

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 2 of S.L. 2003, ch. 137 declared an emergency retroactively to January 1, 2003 and approved March 27, 2003.

Section 20 of S.L. 2005, ch. 367 declared an emergency. Approved April 12, 2005.

CASE NOTES

Cited

North Snake Ground Water Dist. v. Idaho Dep’t of Water Res. (In re Permit No. 36-16979), 160 Idaho 518, 376 P.3d 722 (2016).

§ 42-5225. Authority to construct and operate ground water recharge or storage project.

Any ground water district organized under the laws of this state is authorized in section 42-234, Idaho Code, to file an application with the department to acquire water rights or to appropriate the unappropriated waters of the state for the purpose of storing waters in, or recharging, ground water basins within the district to aid in the efficient irrigation of district lands, to serve domestic, commercial, municipal or industrial uses within the district, or to carry out a mitigation plan. Upon approval of the application for permit by the director, the district shall proceed in the manner provided by law to construct and operate the ground water storage or recharge project. The construction and operation of the project shall be subject to such additional conditions and limitations as shall be imposed by the director pursuant to sections 42-203A, 42-222 and 42-234, Idaho Code.

History.

I.C.,§ 42-5225, as added by 1995, ch. 290, § 1, p. 982; am. 2009, ch. 242, § 4, p. 743.

Cross References.

State controller,§ 67-1001 et seq.

§ 42-5231. County commission to have access to books.

Any district board, or the secretary thereof, shall at any time allow any member of the county commission, when acting under resolution of the commissioners, to have access to all books, records and vouchers of the district which are in possession or control of the board of directors or secretary of the board.

History.

I.C.,§ 42-5231, as added by 1995, ch. 290, § 1, p. 982.

§ 42-5232. Levy of assessments.

The secretary of the board shall be the assessor of the district, and on or before August 1 of each year shall prepare an assessment book containing a full and accurate list of all lands within the district that are subject to assessment under this chapter.
At a regular meeting of the board between August 1 and November 1 of each year, the board of directors shall determine the amount necessary to be raised for payment of the annual payment on any and all indebtedness of the district for the following year. Money received in payment of such assessments shall be deposited in a separate fund to be known as the debt retirement fund.
The board shall, in addition, determine the assessments necessary to pay, without limitation, the expenses of developing, operating or maintaining any mitigation plan established by the district and the cost of contracts with any person for mitigation plans, or evaluation of proposed contracts. Money received in payment of such assessments shall be deposited in a separate fund to be known as the mitigation expense fund.
The board shall, in addition, determine the assessments necessary to pay maintenance and operation of the district not related to mitigation plans or purposes. These operation and maintenance duties include making the assessment book, giving notice of assessments and making collections thereof, and other duties, programs or projects of the district to the extent such duties, programs or projects are not attributable to mitigation plans or purposes. Money received in payment of such assessments shall be deposited in a separate fund of the district to be known as the operating expense fund.
If, after levying the regular assessments described in this section, the board determines that the money held in such fund is inadequate or prior to the next regular assessment is likely to become inadequate to pay the expenses for which such fund exists, the board may levy an emergency assessment to pay such additional expenses; provided, that the board shall, at least fourteen (14) days prior to the meeting at which the board determines the amount necessary to pay such expenses, mail written notice of the board’s intent to levy an emergency assessment to each member of the district at the address on file with the district.
If a mitigation plan has been approved and a district member fails to operate in accordance with the plan, the board may take action to mitigate such member’s noncompliance and levy a special assessment against such member equal to one hundred twenty-five percent (125%) of all costs incurred by the district to mitigate such member’s noncompliance. If the noncompliance constitutes excess water use, the board may alternatively levy a special assessment equal to one hundred dollars ($100) per acre-foot of excess water use.
Any ground water user who becomes a member of a district for mitigation purposes shall be subject to no assessment beyond his proportional share of the costs, including administrative costs and other reasonable expenses, of any mitigation plan or actions or activities in furtherance of the district’s mitigation plans or purposes.
No assessment made pursuant to this chapter shall be a lien against any municipal property.

History.

(9) Except as otherwise provided in this chapter, each member shall pay a proportionate share of the total of all amounts to be assessed for the purposes aforementioned, which share shall be based on (a) the ratio which the quantity of water the member is authorized to divert under the member’s ground water right(s) bears to the total quantity of water authorized for diversion under the ground water rights of all members of the district, or (b) the ratio which the number of acres the member is authorized to irrigate under the member’s ground water right bears to the total number of acres authorized for irrigation under the ground water rights of all members of the district; provided, that the board shall be entitled to levy assessments that adjust a member’s proportionate share to take into consideration priority dates, consumptive use under the members’ respective ground water rights, other attributes of the ground water rights appurtenant to the assessed lands, and/or the benefits the member derives from a mitigation plan or other activity of the district. Any nonirrigator who is a member of a ground water district, or whose ground water rights are appurtenant to property located within a ground water district, and who has adopted and implemented a mitigation plan that has been approved by the director and that is not inconsistent with such a plan approved by the director and adopted and implemented by the ground water district, shall be entitled to an assessment credit for the contribution made by that nonirrigator’s mitigation plan toward the district’s mitigation obligation as determined by the director. History.

I.C.,§ 42-5232, as added by 1995, ch. 290, § 1, p. 982; am. 2006, ch. 355, § 2, p. 1085; am. 2016, ch. 112, § 1, p. 317; am. 2019, ch. 33, § 1, p. 93.

STATUTORY NOTES

Amendments.

The 2006 amendment, by ch. 355, added the last sentence in (7).

The 2016 amendment, by ch. 112, in the first sentence of subsection (7), inserted the designation (a) and inserted “or (b) the ratio of acres the water use is authorized to irrigate under the member’s ground water right bears to the total quantity of water authorized for appropriation under the ground water rights of all water users in the district”.

The 2019 amendment, by ch. 33, added present subsections (5) and (6); redesignated former subsections (5) to (7) as subsections (7) to (9); and, in subsection (9), rewrote the first sentence, which formerly read: “Except as otherwise provided in this chapter, each member shall pay a proportionate share of the total of all amounts to be assessed for the purposes aforementioned, which share shall be based on (a) the ratio which the quantity of water the water user is authorized to appropriate under the member’s ground water right(s) bears to the total quantity of water authorized for appropriation under the ground water rights of all water users in the district, or (b) the ratio of acres the water use is authorized to irrigate under the member’s ground water right bears to the total quantity of water authorized for appropriation under the ground water rights of all water users in the district; provided, that the board shall be entitled to levy assessments that adjust a member’s proportionate share to take into consideration priority dates, consumptive use under the members’ respective ground water rights, other attributes of the ground water rights appurtenant to the assessed lands, and/or the benefits the member derives from a mitigation plan or other activity of the district.”

Compiler’s Notes.

Effective Dates.

Section 5 of S.L. 2006, ch. 355 declared an emergency. Approved April 7, 2006.

§ 42-5233. Power to incur indebtedness — Assessments to secure repayment — Warrants.

In order to secure funds for the mitigation plan or plans for the district, the board of directors may, by resolution duly adopted and entered upon the minutes, incur indebtedness by contract with a money lending institution; provided however, that the term of such indebtedness shall not exceed thirty (30) years. To secure the repayment of any indebtedness so incurred, the board shall levy assessments over the term of the indebtedness in amounts sufficient to repay the interest and principal as it falls due. Such assessments shall be levied in the manner and shall be subject to the limitations set forth in section 42-5232, Idaho Code. Assessments to repay debt with a term exceeding one (1) year may be levied only if the indebtedness has been approved at an election pursuant to sections 42-5234 through 42-5238, Idaho Code.
Notwithstanding the provisions of subsection (1) of this section, the board of directors may, before the collection of the first assessment, incur indebtedness for the purpose of organization, or for any of the purposes of this chapter, and cause warrants of the district to issue therefor, provided that the total dollar amount of the warrants authorized to be issued shall not exceed three dollars ($3.00) for each acre of land authorized to be irrigated with ground water within the district, or for each two-hundredths (.02) of a cubic foot per second of ground water authorized to be diverted and used upon lands or facilities located within the district. Following the collection of the first assessment, the board of directors may at any time issue warrants of the district for the purpose of paying claims of indebtedness against the district, including salaries of officers and employees, not to exceed the district’s anticipated revenue.
The warrants herein authorized shall be in form and substance the same as county warrants or as nearly the same as may be practicable and shall be signed by the chairman and attested by the secretary of said board. All such warrants shall be presented by the holder thereof to the treasurer of the district for payment who shall endorse thereon the day of presentation for payment with the additional endorsement thereon, in case of nonpayment, that they are not paid for want of funds, and such warrants shall draw interest at a rate to be established by the board of directors from the date of their presentation to the treasurer for payment as aforesaid until such warrants are paid. No warrants shall be issued in payment of any indebtedness of such district for less than face or par value. It shall be the duty of the treasurer from time to time when sufficient funds are available for that purpose to advertise in a newspaper in the county in which the district is situated requiring the presentation to the treasurer for payment of as many of the outstanding warrants as are able to be paid. Ten (10) days after the first publication of said notice by the treasurer calling in any of said outstanding warrants, said warrants shall cease to bear interest, which shall be stated in the notice. Said notice shall be published two (2) weeks consecutively and said warrants shall be called in and paid in the order of their endorsement.

History.

I.C.,§ 42-5233, as added by 1995, ch. 290, § 1, p. 982; am. 2005, ch. 367, § 11, p. 1155; am. 2015, ch. 309, § 1, p. 1214; am. 2016, ch. 112, § 2, p. 317; am. 2016, ch. 113, § 1, p. 321. STATUTORY NOTES

Amendments.

The 2015 amendment, by ch. 309, substituted “three dollars ($3.00)” for “one dollar ($1.00)” in the first sentence in subsection (2).

This section was amended by two 2016 acts which appear to be compatible and have been compiled together.

The 2016 amendment, by ch. 112, inserted “each acre of land authorized to be irrigated with ground water within the district, or for” following “three dollars ($3.00) for” in the first sentence of subsection (2).

The 2016 amendment, by ch. 113, at the beginning of the last sentence in subsection (1), added “Assessments to repay debt with a term exceeding one (1) year”.

Effective Dates.

Section 20 of S.L. 2005, ch. 367 declared an emergency. Approved April 12, 2005.

§ 42-5234. Election for indebtedness — Referendum petition.

The board may by resolution adopted by a two-thirds (2/3) majority of the board, determine that the interest of the district and the public interest and necessity demand the development and operation of a mitigation plan and shall set forth the amount of obligation or contract indebtedness proposed to be issued by the district under the provisions of this chapter for the development of such mitigation plan. If any obligation or contract indebtedness has a repayment term exceeding one (1) year, the board shall submit the obligation or contract indebtedness in the proposed resolution to a vote of the qualified electors of the district as defined in section 42-5210, Idaho Code, at an election to be held only if within fifteen (15) days after the passage of such resolution a referendum petition signed by qualified electors of the district whose aggregate ground water rights equal not less than ten percent (10%), measured in cubic feet per second or acres irrigated, of the aggregate ground water rights of all qualified electors of the district, shall be filed with the secretary of the district requesting that an election upon the issuance of the contract indebtedness be held and conducted under the provisions of this section. Any election required to be held pursuant to a referendum petition filed in accordance with this section for the purpose of submitting any proposition or propositions of incurring such obligation or indebtedness shall be held in accordance with section 34-106, Idaho Code. The resolution, in addition to such declaration of public interest or necessity, shall recite the objects and purposes for which the indebtedness is proposed to be incurred, the estimated cost of the mitigation plan, the amount of principal of the indebtedness to be incurred therefor, and the sources of the revenues and assessments pledged to the payment of the indebtedness. The separate election upon the assessments, shall be held at the same time as and shall be combined with any such election required to be held upon the indebtedness question pursuant to a referendum petition.
Any election for indebtedness required to be held hereunder shall be called by resolution, which resolution shall also fix the date upon which such election shall be held, the manner of holding the same and the method of voting for or against the incurring of the indebtedness. Such resolution shall also fix the compensation to be paid the officers of the election and shall designate the precincts and polling places and shall appoint for each polling place, from each precinct from the electors thereof, the officers of such election, which officers shall consist of three (3) judges, one (1) of whom shall act as clerk, who shall constitute a board of election for each polling place. The description of precincts may be made by reference to any order or orders of the county commission of the county or counties in which the district or any part thereof is situated, or by reference to any previous order, or resolution of the board or by detailed description of such precincts. Precincts established by the county commissions of the various counties may be consolidated for special elections held hereunder. In the event any such election shall be called to be held concurrently with any other election or shall be consolidated therewith, the resolution calling the election hereunder need not designate precincts or polling places or the names of officers of election, but shall contain reference to the act or order calling such other election and fixing the precincts and polling places and appointing election officers therefrom. The resolution calling the election shall prescribe an official notice of election, which notice shall be published once a week for two (2) consecutive weeks, the last publication of which shall be at least ten (10) days prior to the date set for said election, in a newspaper of general circulation printed and published within the district, and no other or further notice of such election or publication of the names of election officers or of the precincts or polling places need be given or made. (3) The respective election boards shall conduct the election in their respective precincts in the manner prescribed by law for the holding of district elections to the extent the same shall apply and shall make their returns to the district secretary. At any regular or special meeting of the board held not earlier than five (5) days following the date of such election, the returns shall be canvassed and the results declared.

(4) If no referendum petition is filed, or if so filed, if it shall appear from the returns that the qualified electors of the district representing two-thirds (2/3) of the aggregate ground water rights of the district, such fraction computed according to cubic feet per second, have voted in favor of the proposition, the district thereupon shall be authorized to incur such indebtedness or obligations, or enter into such contracts, all for the purposes provided for in the proposition submitted in the resolution, and in the amount so provided. Submission of the proposition of incurring such obligation or other indebtedness at such an election shall not prevent or prohibit submission of the same or other propositions at subsequent election or elections called for such purpose.

History.

I.C.,§ 42-5234, as added by 1995, ch. 290, § 1, p. 982; am. 2016, ch. 112, § 3, p. 317; am. 2016, ch. 113, § 2, p. 321.

STATUTORY NOTES

Amendments.

This section was amended by two 2016 acts which appear to be compatible and have been compiled together.

The 2016 amendment, by ch. 112, inserted “or acres irrigated” following “measured in cubic feet per second” in the second sentence in subsection (1).

The 2016 amendment, by ch. 113, added “If any obligation or contract indebtedness has a repayment term exceeding one (1) year” at the beginning of the second sentence in subsection (1).

§ 42-5235. Judicial examination.

Prior to the incurring of indebtedness with a repayment term exceeding one (1) year, the board shall file a petition in the district court of the county in which the office of the board is located, pursuant to the provisions of sections 43-406 through 43-408, Idaho Code, as if the district were an irrigation district. Whenever any district which is required to file a petition hereunder has or proposes to enter into a contract or contracts with one (1) or more districts pursuant to law, and such other district or districts is authorized or required to bring a confirmation proceeding or proceedings pursuant to the provisions of section 43-406 or section 43-1808, Idaho Code, with respect to such contracts or the levy of assessments or the apportionment of costs, the boards of each of such other districts shall join in the filing of such petition, and the district court in which such petition is filed shall have jurisdiction to hear the petition and to grant the relief prayed for therein. Each such petition shall pray for a judicial examination and determination of any power conferred hereby or by any amendment hereto or of any assessment levied or of any apportionment of costs or of any act, proceeding or contract of the district or districts, whether or not said contracts shall have been executed, including, without limitation, proposed contracts for the reconstruction, rehabilitation, replacement and improvement of any well and other related structures and works and appurtenances, falling water contracts, contracts with other districts and contracts with other public and private persons, firms, corporations and associations. Such petition shall set forth the facts whereon the validity of such powers, assessments, apportionments, acts, proceedings or contracts is founded. Notice of the filing of said petition shall be given by the clerk of the court by mailing, and by publication in at least one (1) newspaper published and of general circulation within the boundaries of each district joining in the petition, or if no newspaper is so published within any district, then in a newspaper published in the same county in which any part of such district is located which is of general circulation in such district, pursuant to and in accordance with the requirements of section 43-407, Idaho Code, as if the district were an irrigation district under the seal thereof, stating in brief outline the contents of the petition and showing where a full copy of any contract or contracts, therein mentioned, may be examined.

History.

(2) Any ground water user in any district joining in the petition or any other person interested in the contracts or proposed contracts may appear and answer the petition at any time prior to the date fixed for the hearing or within such further time as may be allowed by the court; and the petition shall be taken as confessed by all persons who fail so to appear. The said petition and notice shall be sufficient to give the court jurisdiction and, upon hearing, the court shall examine into and determine all matters and things affecting the question submitted, shall examine all of the proceedings of all of the districts as set forth in the petition, shall hear all objections either filed in the proceeding or brought up from the hearings before any of the boards, shall correct all errors in the assessments and apportionments of costs, shall ratify, approve and confirm all apportionments of costs and assessments levied, shall make such findings with reference thereto and render a judgment and decree thereon approving and confirming all of the powers, assessments, apportionments, acts, proceedings and contracts of each of the districts as set forth in the petition as the case warrants. Costs may be divided or apportioned among the contesting parties in the discretion of the trial court. Review of the judgment of the court may be had as in other similar cases. The Idaho rules of civil procedure shall govern in matters of pleading and practice where not otherwise specified herein. The court shall disregard any error, irregularity or omission which does not affect the substantial rights of the parties. Except as provided herein, the provisions of sections 43-406 through 43-408, Idaho Code, shall apply to the proceeding herein authorized as though the ground water district were an irrigation district. History.

I.C.,§ 42-5235, as added by 1995, ch. 290, § 1, p. 982; am. 2016, ch. 113, § 3, p. 321.

STATUTORY NOTES

Amendments.

The 2016 amendment, by ch. 113, inserted “with a repayment term exceeding one (1) year” in the first sentence of subsection (1).

§ 42-5236. Judicial proceedings to test validity.

I.C.,§ 42-5238, as added by 1995, ch. 290, § 1, p. 982.

§ 42-5239. Lending institutions — Right to compel assessments — Alternative remedy.

History.

I.C.,§ 42-5239, as added by 1995, ch. 290, § 1, p. 982.

§ 42-5240. Lien of assessment.

From and after January 1 of any year, all assessments, other than those levied against municipalities, shall be liens against the land of ground water users to which the water rights used to determine assessments are appurtenant, and notwithstanding anything to the contrary in this chapter or any provisions incorporated therein by reference, shall be superior to the lien of any mortgage or deed of trust, whether prior in time or not, provided that notice of the assessment delinquency is sent to the mortgage or deed of trust holder at least sixty (60) days prior to any foreclosure sale of the property. Said assessment liens shall not be removed until the assessments are paid or the property is sold for the payment thereof, and shall constitute such lien until paid. Upon any sale of the property the purchaser at such sale shall take the property subject to any annual assessments of the district subsequent in time to the assessment for which the foreclosure occurred. Nothing in this section alters or affects any liens of water related districts or entities authorized pursuant to Idaho law.

History.

I.C.,§ 42-5240, as added by 1995, ch. 290, § 1, p. 982; am. 2011, ch. 325, § 1, p. 950.

STATUTORY NOTES

Amendments.

The 2011 amendment, by ch. 325, rewrote this section, which formerly read: “From and after January 1 of any year, all assessments, other than those levied against municipalities, shall be liens against the land of ground water users to which the water rights used to determine assessments are appurtenant. Such liens shall not be removed until the assessments are paid or the property is sold for the payment thereof.”

§ 42-5241. Payment of assessments — When delinquent — Interest and penalties.

District assessments levied pursuant to subsections (2) through (4) of section 42-5232, Idaho Code, shall be billed and collected in one (1) of the following ways:
1. On or before the first day of December, the treasurer of the district shall mail an assessment bill to each water user and shall publish a notice for a period of not less than two (2) weeks in a newspaper published or having general circulation in each of the counties in which any part of the district is situated, which bill and notice shall set forth the date by which assessments must be paid and the times and places at which payment may be made. Assessments collected by the ground water district shall be due and payable on or before December 31 of each year, after which date each unpaid assessment shall be delinquent; shall bear interest at the rate of interest established for money due on judgments until paid; shall entitle the district to take any appropriate action to collect the assessment, including suit and the foreclosure of liens as provided in this chapter; and, in addition, shall be subject to a penalty in the amount of fifteen dollars ($15.00) per delinquent assessment; or
2. The board of directors of any ground water district organized under the laws of this state desiring to provide for the collection of district assessments by the county treasurer instead of the district treasurer may do so by adopting a resolution providing for collection by the county treasurer, and furnishing a copy of the resolution to the county auditor of each county in which any of the district lands are located; provided that the county commissioners of the county or counties must first approve the ground water district resolution by a proper resolution of the board of county commissioners adopted by a majority of the county commissioners and made and entered upon the minutes of the board or boards of county commissioners. The board of county commissioners’ resolution may provide for collection fees and for any additional fee against the ground water district for the cost of transferring records and initiating the collection process. The board of county commissioners of any county, having determined that the collection of ground water district assessments is an undue burden upon the county and shall no longer be provided, shall notify the board of directors of the ground water district by December 1 in the year preceding the year for which the action shall first be effective by providing to the board of directors a certified copy of the majority decision of the board of county commissioners.
District assessments levied pursuant to subsection (5) or (6) of section 42-5232, Idaho Code, shall be billed and collected in one (1) of the ways as provided in subsection (1) of this section, provided that assessments billed and collected pursuant to subsection (1)(a) of this section may be mailed at any time of the year and shall be due and payable within thirty (30) days after mailing.

If the ground water district board determines to issue assessments through the respective counties, the treasurer of the ground water district first shall prepare a list containing the legal description, the assessor’s parcel number, the name and last known address of the owner of record, and the amount of the assessment for each parcel. The sum assessed and charged against each parcel shall be entered by the ground water district as the operation and maintenance assessment of the (name of district) ground water district. On or before the third Tuesday of July of each year, the list shall be certified by the treasurer of the ground water district to the county auditor of the county in which the lands are located, and the county treasurer shall enter the same upon the tax rolls, as provided by law for the entry of taxes, against the land of each of the persons named in the list, together with the amounts thereof; and the same shall be subject to the same interest and penalties in case of delinquency as in the case of property taxes and shall be collected in the same manner as taxes and subject to the same right of redemption, and the lands sold for the collection of delinquency shall be subject to the same right of redemption as the sale of land for property taxes. When a ground water district includes lands in more than one (1) county, the treasurer of the ground water district shall prepare separate lists for the county assessor for each county. When a parcel lies partly in one county and partly in another county, only the portion in a county shall be included on the list for that county. If the legal description of any parcel on any such list differs from the legal description as shown by the assessor’s records, the assessor shall notify the district treasurer of the discrepancy and the district treasurer shall submit to the county assessor an addendum changing the description to conform with the assessor’s records; provided, that where the discrepancy between the descriptions occurs because a portion of the parcel lies outside the district, no change in description shall be required and the district assessments shall be effective only as to the portions of any parcel that are within district boundaries.

Assessments shall be due and payable on the date specified in the county’s tax notice, shall be collected and accounted for by the county treasurer in the same manner as property taxes, and shall be paid over to the ground water district treasurer together with any penalties or interest collected. The county shall enforce the collection of assessments in the same manner as it enforces the collection of taxes of the county, and failure to pay the assessment shall be subject to the same penalties. The collection of a ground water district’s assessments by the county treasurer shall not make the district’s obligations respecting any bond, contract, debt, or interest the obligation of the county.

History.

I.C.,§ 42-5241, as added by 1995, ch. 290, § 1, p. 982; am. 1996, ch. 298, § 9, p. 977; am. 2019, ch. 33, § 2, p. 93.

STATUTORY NOTES

Amendments.

The 2019 amendment, by ch. 33, added the subsection (1) designation to the existing introductory paragraph; redesignated former subsection (1) and (2) as paragraphs (1)(a) and (b); added subsection (2); in subsection (1), inserted “levied pursuant to subsections (2) through (4) of section 42-5232, Idaho Code” near the beginning of the introductory paragraph, and substituted twice “commissioners” for “commissioner’s” near the end of the first and near the beginning of the second sentences in paragraph (b).

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 10 of S.L. 1996, ch. 298 declared an emergency. Approved March 18, 1996.

§ 42-5242. Entry of delinquent assessments — Filing of delinquency list.

On or before the 15th day of January of each year the treasurer shall enter the amount of all delinquent assessments upon the assessment book, which entry shall be considered to be dated as of the first day of January. Such entry shall have the force and effect of a sale to the treasurer of the district as grantee in trust for the district of all property to which a lien has attached as a result of such unpaid assessments.
The treasurer shall compile a list of such delinquency entries which shall contain the names of the persons or entities to whom the assessments were directed and the amount of such delinquent assessments together with the amount of the penalties to be added thereto. A certified copy of the delinquency list, duly acknowledged by the treasurer, shall be filed with the county recorder of each county in which the properties affected by such delinquent assessments are located, and the treasurer shall then provide by certified mail a notice of delinquency to each ground water user having a delinquent assessment.
Upon the payment in full of any delinquent assessment and penalty that was entered on a recorded delinquency list, the treasurer shall file with the county recorder of each county in which the list of delinquent assessments was recorded an acknowledged notice that the delinquent assessment and any penalty owed has been paid in full. The treasurer shall file any notices of payment of delinquent assessments with the county recorders, as required, on at least a monthly basis.

History.

I.C.,§ 42-5242, as added by 1995, ch. 290, § 1, p. 982; am. 2005, ch. 367, § 12, p. 1155.

Section 4 of S.L. 2019, ch. 261 declared an emergency, effective April 1, 2019. Approved March 29, 2019.

§ 42-5244B. Delinquent assessments — Noncompliance with mitigation plan.

A water user who is delinquent in the payment of any assessment under this chapter, or who has failed to comply with any apportionment of mitigation obligations imposed by the board under this chapter, shall not be entitled to divert ground water until such delinquent assessment is paid in full and noncompliance is remedied in full. To commence enforcement, the district shall submit to the director a report documenting the delinquent assessment or noncompliance with the apportionment of mitigation plan obligations. For delinquent assessments, the report shall contain an accounting of the basis for the assessment, the apportionment of those assessments among district members, and the ground water user’s delinquency in the payment of those assessments. For noncompliance with the apportionment of mitigation plan obligations, the report shall identify the mitigation plan under which the mitigation plan obligations were apportioned, explain the basis for the apportionment of those obligations among district members, and document the water user’s noncompliance with the apportioned mitigation obligations. If, after the director analyzes information in the report, the director concludes that the district has reasonably apportioned those assessments based on the factors set forth in section 42-5232(7), Idaho Code, or has reasonably apportioned those mitigation plan obligations based on the factors set forth in section 42-5244A, Idaho Code, the director shall instruct the water master to curtail all ground water diversions by the water user for which assessments are delinquent or for which the user has not complied with the mitigation obligations apportioned to the user. Any person aggrieved by the action of the director and who has not previously been afforded an opportunity for a hearing on the matter shall be entitled to a hearing before the director to contest the action pursuant to section 42-1701A(3), Idaho Code. No district shall commence enforcement under the provisions of this section prior to January 1, 2020. The director shall not curtail ground water diversions based on delinquent assessments levied prior to April 1, 2019, or based on mitigation plan noncompliance that occurred prior to April 1, 2019.

History.

I.C.,§ 42-5244B, as added by 2019, ch. 261, § 3, p. 771.

STATUTORY NOTES

Effective Dates.

Section 4 of S.L. 2019, ch. 261 declared an emergency, effective April 1, 2019. Approved March 29, 2019.

§ 42-5245. Petition for annexation of land.

Any ground water user, as defined in section 42-5201(8), Idaho Code, as well as any user of ground water for domestic or stock use as defined by sections 42-111 and 42-1401A, Idaho Code, may file with the board a petition in writing praying that the land and/or facilities listed under the ground water user’s ground water right(s) may be annexed into the district. The petition shall contain a legal description of the lands and any other information the district may require, and the petitioner shall state under oath that petitioner holds the title to said lands. If the ground water user is a nonirrigator, the petition shall state if the ground water user is seeking to join the district solely to participate in the district’s mitigation plans and other mitigation activities.

History.

I.C.,§ 42-5245, as added by 1995, ch. 290, § 1, p. 982; am. 2005, ch. 367, § 14, p. 1155; am. 2016, ch. 109, § 1, p. 314.

STATUTORY NOTES

STATUTORY NOTES

Amendments.

The 2016 amendment, by ch. 109, in subsection (2), inserted “of a nonirrigator” and substituted “the district’s mitigation plans and other mitigation activities” for “a district mitigation plan”.

§ 42-5249. Order accepting or rejecting petition.

If the board of directors deems a proposed annexation not to be in the best interests of the district to include the lands mentioned in the petition, the board shall reject the petition. But if they deem it for the best interest of the district, the board may order the lands mentioned in the petition or some part thereof be annexed to the district.
The order shall describe the lands to be annexed to said district and the board may cause a survey thereof to be made if deemed necessary. Thereafter the annexed land shall be subject to such assessments from time to time as the board of directors shall deem right under the circumstances, and such assessments shall be deemed to be assessments for benefits to said lands by reason of their annexation to said district. The directors shall state on their minutes at their next regular meeting which division and election precinct in said district the said lands so annexed shall be attached, and, if necessary, the board shall make an order redividing the district into divisions and election precincts, in the same manner and to like effect, as near as may be, as provided for that purpose on the formation of a district.

History.

I.C.,§ 42-5249, as added by 1995, ch. 290, § 1, p. 982.

§ 42-5250. Order to be recorded.

Upon a change of the boundaries of a district becoming effective, a copy of the order of the board of directors ordering such change, certified by the president and secretary of the board, shall be filed for record in the recorder’s office of each county within which are situated any of the lands of the district, and thereupon the district shall be and remain a ground water district, as fully and to every intent and purpose as if the lands which are included in the district by the change of the boundaries had been included therein at the original organization of the district.

History.

I.C.,§ 42-5250, as added by 1995, ch. 290, § 1, p. 982.

§ 42-5251. Petition for exclusion of lands — Ground water irrigated lands — Lands of nonirrigator — Lands may remain in the district for mitigation purposes.

Any district member who is an irrigator may file with the district board a petition requesting that the member’s irrigated lands be excluded from the district. The petition may request that the lands either be excluded for all purposes or be excluded for all purposes except mitigation. The petition shall be signed by each petitioner, and shall state that continued inclusion of the irrigated lands in the district is inappropriate or unwarranted:
1. Because the diversions of ground water under the ground water irrigator’s water right have no depletive effect on any water source, either individually or cumulatively when considered in conjunction with other similar diversions;
2. Because the only ground water use associated with the lands sought to be excluded by the petition is a domestic or stock water use as defined by sections 42-111 and 42-1401A, Idaho Code;
3. Because the exclusion of the lands will not impair the district’s ability to repay debt or carry out mitigation plans;
4. Because the exclusion is in the best interests of the district and its members; or
5. For other compelling reasons.
Any district member who is a nonirrigator, may file with the district board a petition requesting that the member’s lands be excluded from the district. The petition may request that the lands either be excluded for all purposes or be excluded for all purposes except mitigation. The petition shall be signed by each petitioner, but need not be acknowledged. The board shall consider the petition and grant or deny the petition within ninety (90) days of the date it is filed, unless the board, in its sole discretion, grants a hearing on the petition within such time period, in which case the board shall issue a final decision within sixty (60) days after the conclusion of the hearing.
All costs incurred by the district in carrying out an exclusion proceeding shall be assessed as provided in section 42-5253, Idaho Code. A person purchasing land under a written contract shall be deemed to be the owner of that land for purposes of this section.

The board shall consider the petition and, based on findings concerning such factors, the board shall grant or deny the petition within ninety (90) days of the date it is filed, unless the board, in its sole discretion, grants a hearing on the petition within such time period, in which case the board shall issue a final decision within sixty (60) days after the conclusion of the hearing.

History.

I.C.,§ 42-5251, as added by 1995, ch. 290, § 1, p. 982; am. 2005, ch. 367, § 15, p. 1155; am. 2006, ch. 355, § 4, p. 1085.

STATUTORY NOTES

Amendments.

The 2006 amendment, by ch. 355, inserted “Ground water irrigated lands — Lands of nonirrigator —” in the section heading; designated the introductory language as subsection (1) and redesignated the remainder of the section accordingly; inserted “who is an irrigator” following “district member” in the first sentence of the introductory language of subsection (1); inserted “irrigated” or “irrigators” in the introductory language in subsection (1) and in subsection (1)(a); and added subsection (2).

Effective Dates.

Section 20 of S.L. 2005, ch. 367 declared an emergency. Approved April 12, 2005.

Section 5 of S.L. 2006, ch. 355 declared an emergency. Approved April 7, 2006.

§ 42-5252. Contents of petition — Representations, certification and liability — Waiver of benefits upon exclusion.

A petition for exclusion shall set forth or include the following:
1. A description of the land and/or facilities of petitioner for which exclusion is requested, together with such evidence of ownership of the land and/or facilities as is satisfactory to the district board;
2. A representation that no mortgagee or other person holds a lien of record in the county where the land for which exclusion is requested is located, for which the lienholder’s consent to the exclusion is required or that, if such consent is required, the consent has been granted by the lienholder;
3. If the member seeks exclusion for all purposes, an explicit written waiver and relinquishment, on a form provided by the board or otherwise, of all right to rely upon or be covered by any program, plan, activity or benefits of any kind provided by or through the district;
4. If the member seeks to be excluded from the district for all purposes except mitigation, an explicit written waiver and relinquishment stating that the member recognizes and agrees that:
  1. The member no longer will be entitled to vote or participate in the governance of the district, to nominate directors, or to serve as a director of the district except as specified in this chapter;
  2. The member will remain subject to all assessments pertaining to the district’s mitigation program(s) or plans;
  3. The member will be entitled to receive no benefits of any kind from the district except those pertaining to mitigation purposes.
5. Regardless of whether the exclusion will be for all purposes or for all except mitigation purposes, an explicit written statement, on a form provided by the board or otherwise, that the member recognizes and agrees that he will remain liable to the district, and subject to assessment, for any financial indebtedness the member may have to the district for indebtedness incurred before exclusion occurs.
The district board shall return to the petitioner any petition not accompanied by the information required in subsection (1) of this section, and no further action shall be required of the board with respect to such petition. The petitioner shall be liable for any expenses or damages to lienholders or to other landowners or to the district resulting directly or indirectly from wrongful exclusion of lands by reason of untrue or incorrect statements in the petition.
The petition for exclusion shall be signed by the member and be acknowledged in front of a notary public in the same manner as for deeds of land.

History.

I.C.,§ 42-5252, as added by 1995, ch. 290, § 1, p. 982.

STATUTORY NOTES

Compiler’s Notes.

The “s” enclosed in parentheses so appeared in the law as enacted.

§ 42-5253. Order of exclusion.

In the event the district’s board of directors grants a petition for exclusion, the board shall, by resolution, make an order forthwith excluding the lands described in the petition either for all purposes or for only those purposes not related to mitigation. No hearing is required prior to granting a petition for exclusion.
At a minimum, the order of exclusion shall specify that:
1. Lands excluded for all purposes shall not be a part of or be entitled to receive any benefits from the district;
2. Lands excluded only for purposes not related to mitigation, shall continue to be part of the district for mitigation purposes only and shall be assessed for these purposes as provided under this chapter;
3. Any excluded lands are subject to the requirements of section 42-5257, Idaho Code.
4. When the petition is filed on or before December 1 in any calendar year, any assessment, other than those specified in section 42-5257, Idaho Code, against the land for any calendar year subsequent to the year in which the petition was filed shall not be valid and no lien for any such attempted assessment shall attach under section 42-5240, Idaho Code.

History.

I.C.,§ 42-5253, as added by 1995, ch. 290, § 1, p. 982; am. 2005, ch. 367, § 16, p. 1155.

STATUTORY NOTES

Effective Dates.

Section 20 of S.L. 2005, ch. 367 declared an emergency. Approved April 12, 2005.

§ 42-5254. Survey of land to be excluded.

The board of directors may cause any survey to be made it deems necessary for the purpose of determining the change in the district by reason of an exclusion or proposed exclusion. If the land described in the petition is described in accordance with the public survey or in accordance with a plat approved, filed and recorded as provided by law, the cost of survey shall be borne by the district, otherwise the cost shall be borne by petitioner.

History.

I.C.,§ 42-5254, as added by 1995, ch. 290, § 1, p. 982.

§ 42-5255. Costs of excluding land.

The costs of excluding any land as provided in this chapter shall be borne by the petitioner or petitioners except as provided in section 42-5254, Idaho Code. The board may require a deposit of the estimated costs before granting the petition. If the actual costs of completing the exclusion of the lands from the district are less than the amount deposited by the petitioner, the balance shall be refunded to the petitioner within fourteen (14) days after the final action for the exclusion is completed. If the actual costs of the exclusion of the lands is more than the deposit, the difference shall be paid to the district by the petitioner within fourteen (14) days after receipt of a statement to that effect from the district, and the board’s order of exclusion shall not be effective until the difference is paid.

History.

I.C.,§ 42-5255, as added by 1995, ch. 290, § 1, p. 982.

§ 42-5256. Changes to be filed for record.

Any decision and order of the board of directors or the district court, in case of appeal, excluding the petitioner’s land and changing the boundaries of such ground water district shall be filed for record in the recorder’s office of the county or counties within which are situated the lands of such ground water district.

History.

I.C.,§ 42-5256, as added by 1995, ch. 290, § 1, p. 982; am. 2005, ch. 367, § 17, p. 1155.

STATUTORY NOTES

Effective Dates.

Section 20 of S.L. 2005, ch. 367 declared an emergency. Approved April 12, 2005.

§ 42-5257. Exclusion — Effect — Obligations outstanding — Enforcement — Payment — Certificate.

Except as otherwise provided in this chapter, land and/or facilities excluded from any ground water district shall not thereafter be entitled to any of the rights and benefits of the district and shall be deemed to have fully relinquished all such rights and benefits.
Land and/or facilities fully excluded from a district and those excluded only from nonmitigation purposes shall be subject to assessment and be otherwise chargeable for the payment and discharge of all obligations outstanding at the time of the entry of the exclusion order as fully as though the land had not been excluded. Such obligations shall include, but are not limited to, their proportionate share of any of the district’s existing indebtedness that was incurred for a project or activity that: (a) provided a benefit to such lands prior to the exclusion and for which benefit the excluded lands remain indebted; or (b) continues to benefit such lands even after the exclusion. Where either of these circumstances exists, excluded lands shall remain a part of the district for the purpose of discharging such existing contract indebtedness, and otherwise shall be obligated to pay all regular and special assessments to retire such debt as if they had not been excluded. The district’s board of directors may allow any debt or obligation against any excluded land and/or facility to be paid in installments or in any other manner the board deems equitable.
All provisions which could be used to compel the payment by excluded land of its portion of the outstanding obligations had the exclusion not occurred, may be used to compel the payment on the part of the land of the portion of the outstanding obligations of the district for which it is liable.
When any member obtaining the exclusion of land from a ground water district has paid to the district all of the debts and obligations of the district assessable, chargeable or allocable to the land and/or facility excluded, the district may issue its certificate of full payment executed by the president and secretary of the district, and acknowledged so that the certificate may be recorded in the records of the county wherein the land is situate.

History.

I.C.,§ 42-5257, as added by 1995, ch. 290, § 1, p. 982.

§ 42-5258. Reinstatement of lands.

Where lands have been excluded from a ground water district they may be reinstated to the district by following the procedures provided in sections 42-5245 through 42-5250, Idaho Code, except that the board of directors, in its discretion, may refuse for any reason to annex such lands to the district.

History.

I.C.,§ 42-5258, as added by 1995, ch. 290, § 1, p. 982.

§ 42-5259. Participation by nonmember in district solely for mitigation purposes.

Upon written request from any ground water user who is not a member of a district, a district board of directors may enter a contract with such nonmember pursuant to which the nonmember shall be allowed to participate fully in, and obtain all benefits of, any mitigation plan, purpose or activity the district currently has in force or is developing, pursuant to terms and conditions acceptable to both parties, provided that:

The board finds that the plan is likely to be effective in mitigating the effects of such nonmember’s ground water use, and that including the nonmember within the mitigation plan’s coverage will not impair the plan’s effectiveness as to district members;
If the district’s mitigation plan has been approved by the director, the board shall evaluate the contract request in accordance with any conditions of the district’s mitigation plan which address equitable participation by ground water users who do not initially participate in such mitigation plan;
Before the contract may be effective, the board may collect from the nonmember a payment adequate to compensate the district for the nonmember’s proportional share of the costs the district already has incurred in developing and implementing the mitigation plan;
The board may include in the contract a provision requiring the nonmember to pay a reasonable surcharge, either annually or on some other basis, to reimburse the district for such nonmember’s proportional share of those past or future costs of operating the district attributable to formulating or implementing the mitigation plan or plans in which the nonmember is participating;
The board may require the nonmember to provide security to assure the payment of all assessments and charges related to the contract.

History.

I.C.,§ 42-5259, as added by 1995, ch. 290, § 1, p. 982; am. 2005, ch. 367, § 18, p. 1155; am. 2016, ch. 110, § 1, p. 315.

STATUTORY NOTES

Amendments.

The 2016 amendment, by ch. 110, rewrote the section to the extent that a detailed comparison would be impracticable, giving ground water districts the ability, but not the obligation, to contract with nonmembers who wish to participate in, and obtain the benefits of, the district’s mitigation plans.

Compiler’s Notes.

Effective Dates.

Section 20 of S.L. 2005, ch. 367 declared an emergency. Approved April 12, 2005.

§ 42-5260. Petition to annex state land.

The state board of land commissioners may, by resolution duly passed at any meeting of such state board and recorded in its minutes, after due consideration in each specific case, authorize the governor of the state of Idaho, as chairman of the board of land commissioners, to sign a petition for the annexation of adjacent Idaho state lands to a district, or sign a petition to exclude such state lands from a district. The governor shall be deemed the owner of such state lands for the purpose of signing any petition herein authorized, with like effect as the owner of private lands.

History.

I.C.,§ 42-5260, as added by 1995, ch. 290, § 1, p. 982.

Compiler’s Notes.

The words “this act” near the beginning of the section refer to S.L. 1995, chapter 290, which is compiled as§§ 42-5201 to 42-5218D and 42-5223 to 42-5276.

§ 42-5272. Dissolution — Appeal.

Each party to any proceeding for dissolution of a district under this act shall have the right of appeal as in other civil cases.

History.

I.C.,§ 42-5272, as added by 1995, ch. 290, § 1, p. 982.

STATUTORY NOTES

Compiler’s Notes.

The words “this act” near the middle of the section refer to S.L. 1995, chapter 290, which is compiled as§§ 42-5201 to 42-5218D and 42-5223 to 42-5276.

§ 42-5273. Consolidation of two or more ground water districts.

Whenever the boards of directors of any two (2) or more ground water districts which together form a contiguous area determine that it is in the best interests of their respective districts that the districts be consolidated into a single ground water district and wish to proceed toward consolidation, the following procedures shall be followed:

Each board shall petition its respective county commission in the counties identified by reference to section 42-5203, Idaho Code, for an order for an election to vote upon the question of such consolidation, which petition shall state in detail the terms upon which such consolidation is proposed to be made, and also shall transmit a copy of the petition to the department of water resources.
Upon receiving the petitions, the department shall investigate questions affecting such proposed consolidation, and it shall make a report of the result of such investigations to each county commission with whom the petitions were filed not more than ninety (90) days after the department receives such petitions.
After receiving the department’s report, each county commission, if it deems it advisable, shall make an order fixing the time for an election in the districts to vote upon the question of proposed consolidation, which time shall be at the first available date in accordance with section 34-106, Idaho Code. Notice of the election shall be published as required for notice of election in section 42-5209, Idaho Code, and the boards of directors shall make all necessary arrangements for such election in their respective districts as provided in this title for other elections. The ballots shall be substantially as follows: “Consolidation—Yes.” “Consolidation—No.”
The boards of directors shall canvass the returns of the election as provided in case of usual ground water district elections, and shall immediately thereafter transmit, by messenger or registered mail, certified abstracts of the result of said election in their respective districts to the clerk of the county commission. Within ten (10) days after such returns are received by the clerk, the county commission shall meet and canvass the same.
If it appears that a majority of all the votes cast in each of said districts is “Consolidation—Yes.” said board shall make an order, and enter the same of record in its minutes, establishing said consolidated district, giving its boundaries and designation, and in detail the terms under which the consolidation has been effected, and dividing said consolidated districts into three (3) divisions, and shall appoint some person qualified under this title, to act as director for each of said divisions of said district until the next general election for the election of officers, when a board of directors shall be elected as provided in section 42-5218, Idaho Code; provided however, that the organization of such district shall not take effect until the first Tuesday of the January following said order of its establishment. If the date provided by law for the election of directors shall come between the date of said order of the county commission and the first Tuesday of January, then in making such order the board shall designate the board of directors of one (1) of the consolidated districts as a board to take charge of such election, and in that case a director shall be elected for each such division of the consolidated district, and no appointment of directors shall be made by the county commission. (6) If, however, upon such canvass by the county commission, it appears that a majority of the votes cast in any district thus proposed to be consolidated is “Consolidation—No,” then a record of that fact shall be entered in the same minutes of the county commission, and all the proceedings had under the preceding sections of this chapter shall be void.

History.

I.C.,§ 42-5273, as added by 1995, ch. 290, § 1, p. 982.

§ 42-5274. Procedure for consolidating one ground water district within another having substantially larger ground water diversions.

In those cases where the cumulative total ground water diversions (excluding diversions under domestic and stockwater rights) in one (1) district are less than one-tenth (1/10) of such diversions in the larger district, and the boards of directors deem it for the best interests of the respective districts that the two (2) districts be consolidated into a single district, such boards may seek to consolidate according to the following procedure as an alternative to that described in section 42-5273, Idaho Code:

The boards may propose a contract between them setting forth the terms and conditions of consolidating the district having the smaller ground water diversions into the other district, with the name and officers of the district having the larger ground water diversions still retained.
Once both boards have approved the contract, it shall be submitted for approval by the members of the district having the smaller ground water diversions, together with the question of whether the two (2) districts shall be consolidated under the contract’s terms, at a special election held for that purpose in such district. Notice of the election shall be published as required for notices of election for indebtedness. At the election should two-thirds (2/3) of the electors voting, vote in favor of the contract and the consolidation of the districts, the board of directors of the district having the smaller ground water diversions shall petition the board of directors of the district having the larger ground water diversions, which notice shall be published in a newspaper published within the county wherein the office of the board of directors of the district having the larger ground water diversions is situated, for such length of time and covering the same matters as required by a petition to annex land and/or facilities into a district.
The law applicable to the annexation of land into a district after the petition is filed and notice given, shall apply to the consolidation, including an annexation of a smaller district into a larger district.
After the board of directors of the district having the larger ground water diversions has approved the resolution or other decision including within its boundaries the district having the smaller ground water diversions, the board shall file a petition in the district court within the county wherein the principal office of its district is situated, asking for an approval and confirmation of the proceedings thereunder, and the same procedure shall be followed as provided in sections 43-406 through 43-408, Idaho Code, with reference to the confirmation of the proceedings within irrigation districts. In such petition the prayer shall be that the proceedings, together with the contract, may be examined and approved by the court; that after the confirmation of said proceedings the order of the board of directors admitting the smaller district into the district having the larger ground water diversions, containing a description of all the land properly certified by the secretary of the district, shall be filed for record in the office of the recorder of both counties with which the petition was filed.

History.

I.C.,§ 42-5274, as added by 1995, ch. 290, § 1, p. 982. STATUTORY NOTES

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

§ 42-5275. Exercise of powers under this chapter by irrigation districts organized under title 43.

Any irrigation district organized and operating pursuant to title 43, Idaho Code, may exercise the authorities provided under this chapter to the extent doing so does not conflict with any provision of title 43, Idaho Code.

History.

I.C.,§ 42-5275, as added by 1995, ch. 290, § 1, p. 982.

§ 42-5276. Inclusion of irrigation districts organized under title 43.

Where the water supply for lands is ground water provided by an irrigation district established under title 43, Idaho Code, and such lands are included in and subject to assessment by the irrigation district, such lands shall be included in a ground water district organized under the provisions of this chapter only if the board of the irrigation district serves notice in the same manner as that provided for nonirrigators in section 42-5214(2) and (3), Idaho Code.