2020 ................

March 20, 2020

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.

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). 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.

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). 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.

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).

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.

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).

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.

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).

Am. Jur. 2d.
C.J.S.

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

  1. 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.
  2. 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.
  3. 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.

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

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.

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). 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).

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).

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.

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.

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.

  1. 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.
  2. 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.
  3. 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.

  1. All rights to divert and use the waters of this state for beneficial purposes shall hereafter be acquired and confirmed under the provisions of this chapter and not otherwise. And after the passage of this title, all the waters of this state shall be controlled and administered in the manner herein provided. Such appropriation shall be perfected only by means of the application, permit and license procedure as provided in this title; provided, however, that in the event an appropriation has been commenced by diversion and application to beneficial use prior to the effective date of this act, it may be perfected under such method of appropriation.
  2. No person shall use the public waters of the state of Idaho except in accordance with the laws of the state of Idaho. No person shall divert any water from a natural watercourse or apply water to land without having obtained a valid water right to do so, or apply it to purposes for which no valid water right exists.
  3. Notwithstanding the provisions of subsection (2) of this section or section 42-229, Idaho Code, water may be diverted and used at any time, with or without a water right:
    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.
  4. For purposes of subsection (3)(b) of this section, no person shall divert water from a canal or other irrigation facility while the water is lawfully diverted, captured, conveyed, used or otherwise physically controlled by the appropriator.
  5. If water is to be diverted from a natural watercourse within a water district, or from a natural watercourse from which an irrigation delivery entity diverts water, a person diverting water pursuant to subsection (3)(b) of this section shall give notice to the watermaster of the intent to divert water for the purposes set forth in said subsection. In the event that the water to be diverted pursuant to subsection (3)(b) of this section is not within a water district, but an irrigation delivery entity diverts water from the same natural watercourse, the required notices shall be given to said irrigation delivery entity. For uses authorized in subsection (3)(a) of this section, notice shall not be required but may be provided when it is reasonable to do so. (6) A water right holder who determines that a use set forth in subsection (3) of this section is causing a water right to which the holder is entitled to be deprived of water to which it may be otherwise entitled may petition the director of the department of water resources to order cessation of or modification of the use to prevent injury to a water right. Upon such a petition, the director shall cause an investigation to be made and may hold hearings or gather information in some other manner. In the event that the director finds that an injury is occurring to a water right, he may require the use to cease or be modified to ensure that no injury to other water rights occurs. A water right holder feeling aggrieved by a decision or action of the director shall be entitled to contest the action of the director pursuant to section 42-1701A(3), Idaho Code.

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

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

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

History.

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).

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).

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).

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).

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.

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).

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.

  1. 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.
  2. 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.
  3. 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.

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).

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).

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).

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).

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).

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.

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).

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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:

  1. “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.
  2. “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.
  3. “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.
  4. “Municipality” means a city incorporated under section 50-102, Idaho Code, a county, or the state of Idaho acting through a department or institution.
  5. “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.
  6. “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.
  7. “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.
  8. “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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.

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).

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

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).

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.

  1. 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.

  1. 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.
  2. 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

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 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.

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

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

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

  1. 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.
  2. Water cannot be appropriated for hydropower development uses within or using existing man-made irrigation facilities without the permission of the owner thereof.
  3. 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.

The words “this act” at the end of the section 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.

The name of the director of the department of water administration (formerly the state reclamation engineer) 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).

§ 42-208. Cancellation or revocation for noncompliance.

Every permit to appropriate water for power purposes hereafter issued by the director of the department of water resources shall have plainly printed thereon, that the same is issued subject to the provisions of this act and in the event of its sale, transfer, assignment or of its being mortgaged without a compliance with the provisions of this act, such permit shall be immediately canceled and revoked by the director of the department of water resources.

History.

1937, ch. 142, § 4, p. 233; am. 1947, ch. 66, § 4, p. 106.

STATUTORY NOTES

Cross References.

Petition for cancellation,§ 42-302.

Compiler’s Notes.

The words “this act” in two places in the section 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.

The name of the director of the department of water administration (formerly the state reclamation engineer) 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, § 28 (§ 42-1801a).

§ 42-209. Effect of illegal transfer.

Every permit to appropriate water for power purposes that shall be sold, transferred, assigned or mortgaged in violation of the provisions of this act shall be immediately canceled, and the transfer thereof shall not be binding on the state of Idaho.

History.

1937, ch. 142, § 5, p. 233; am. 1947, ch. 66, § 5, p. 106.

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.

§ 42-210. Application of act.

The provisions of this act shall not apply to any municipal corporations within the state.

History.

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.

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).

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. Hardy v. Higginson, 123 Idaho 485, 849 P.2d 946 (1993).

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.

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

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).

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).

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.

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).

§ 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.

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).

Federal Law.

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).

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.

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

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).

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 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).

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.

  1. 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.
  2. 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.
  3. 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).
  4. 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.

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).

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.

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). 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.

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).

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.

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

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.

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).

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.

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).

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:

  1. For filing an application for a permit to appropriate the public waters of this state:
  2. For filing an application for an extension of time within which to resume the use of water under a vested water right ............................... $100
  3. For filing application for amendment of permit ............................... $100
  1. For a quantity of 0.2 c.f.s. or less or for a storage volume of 20 acre feet or less ............................... $100
  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 ............................... $250
  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 ............................... $250
  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 ............................... $1,010
  5. 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
  6. For a quantity greater than 500 c.f.s., or for a storage volume greater than 50,000 acre feet ............................... $6,610
  7. 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.
  8. 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.

  1. 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.
  2. 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.
  3. 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 record did not identify any measurable five-year period of downstream owners’ non-use of their senior rights, the trial court was correct in finding that no forfeiture occurred. Gilbert v. Smith, 97 Idaho 735, 552 P.2d 1220 (1976).

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).

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).

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.

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).

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.

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).

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).

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).

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.

  1. 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.
  2. Any order to show cause shall contain the director’s findings.
  3. 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.
  4. 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.
  5. 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.
  6. The director may consider multiple stockwater rights held by a single owner in a single order to show cause.
  7. 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.
  8. 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.
  9. 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

Duty of department. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised S.L. 1903, p. 223, § 33; reen. R.C., § 3266; compiled and reen. C.L., § 3266; C.S., § 5604; I.C.A.,§ 41-218; 1967, ch. 338, § 1, p. 974, was repealed by S.L. 1978, ch. 345, § 3.

§ 42-225a. [Amended and Redesignated.]

STATUTORY NOTES

Compiler’s Notes.

Former§ 42-225a was amended and redesignated as§ 42-243 by S.L. 1978, ch. 345, § 6.

§ 42-225b. [Amended and Redesignated.]

STATUTORY NOTES

Compiler’s Notes.

Former§ 42-225b was amended and redesignated as§ 42-244 by S.L. 1978, ch. 345, § 7.

§ 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).

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).

Subsequent Appropriators.

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).

§ 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.

  1. “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.
  2. “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.
  3. “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.
  4. “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.
  5. “Water right” is the legal right, however acquired, to the use of water for beneficial purposes.
  6. “Operator” is the employee of the well driller who, through his work at the drilling site, causes the well to be drilled.
  7. “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.

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

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.

The name of the director of the department of water administration (formerly the state reclamation engineer) 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, § 28 (§ 42-1801a).

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.

  1. 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.
  2. 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.
  3. 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.

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).

§ 42-233a. “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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

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).

§ 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:

  1. 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.
  2. 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.
  3. c. To prescribe uniform scientific methods to determine water levels in and calculate waters withdrawn from wells.
  4. 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.
  5. 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.
  6. 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.
  7. 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.

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).

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:

  1. The name and post-office address of the claimant.
  2. 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.
  3. A similar description of the respondent’s water right so far as is known to the claimant.
  4. 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.

The name of the director of the department of water administration (formerly the state reclamation engineer) 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, § 28 (§ 42-1801a).

§ 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.

The name of the director of the department of water administration (formerly the state reclamation engineer) 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, § 28 (§ 42-1801a).

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 name of the director of the department of water administration (formerly the state reclamation engineer) 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, § 28 (§ 42-1801a).

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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:

  1. “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.
  2. “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:

  1. a. The name and post-office address of the claimant.
  2. b. The quantity of water claimed to have been used.
  3. c. The source of the water supply.
  4. d. The location of the point or points of diversion.
  5. e. The nature of the use and the period during each year when the water is used for such purposes.
  6. 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.
  7. g. If water is claimed for irrigation, the legal description of the lands irrigated.
  8. 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:

  1. 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.
  2. 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.
  3. It shall cause a notice in writing to be placed in a prominent and conspicuous location in each county courthouse in the state.
  4. 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.]

  1. 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.
  2. 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.
  3. 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 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).

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.

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).

§ 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.

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

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.]

STATUTORY NOTES

Compiler’s Notes.

These sections, which comprised 1909, p. 299, §§ 2 to 5; reen. C.L., §§ 3265e to 3265i; C.S., §§ 5588 to 5592; I.C.A.,§§ 41-305 to 41-309, were repealed by S.L. 1980, ch. 238, § 24.

§ 42-310. Record of cancellation.

In case the decision of the department of water resources shall be adverse to the contestee and in case no appeal has been taken and no action commenced in the district court within ninety (90) days from said notice of decision, as hereinbefore provided for, said department shall cause to be spread upon the record copy of the permit in question an order of cancellation, which order shall be final and shall determine said permit to be cancelled and voided, by reason of the facts established on the hearing of the contest.

History.

1909, p. 299, § 6; compiled and reen. C.L., § 3265j; C.S., § 5593; I.C.A.,§ 41-310.

STATUTORY NOTES

Compiler’s Notes.

“Contestant” changed to “contestee” in second line of this section on authority of Speer v. Stephenson , 16 Idaho 707, 102 P. 365 (1909).

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).

§ 42-311. Cancellation of permit — Grounds — Hearing — Permittee defined.

  1. If the director of the department of water resources finds, on the basis of available information at any time after a permit is issued but prior to license, that the permittee has refused or failed to comply with any of the conditions in the permit, or has refused or failed to comply with the provisions of the law governing the permit, then the director of the department of water resources may issue (a) an order to show cause before the director of the department or the director’s designee on or before a date therein set, which shall be not less than thirty (30) days from the date of service, why the director of the department should not cancel said permit; or (b) an order directing the permittee to cease and desist the activity or activities alleged to be in violation of the conditions of the permit or in violation of provisions of the law governing the permit. A cease and desist order may direct compliance with the permit forthwith or may provide for a time schedule to bring the permittee into compliance with the conditions of the permit.
  2. Any order to show cause or order to cease and desist shall contain a statement of findings of fact and of conclusions of law that provide a factual and legal basis for the order of the director of the department of water resources.
  3. The director of the department of water resources shall serve a copy of any such order on the permittee by personal service or by certified mail. If reasonable efforts to personally serve the order fail, or if the certified mail is returned unclaimed, the department 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 certified mail shall be complete upon receipt of the 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 publication shall be complete upon the date of the last publication.
  4. The permittee shall have a right to an administrative hearing before the department if requested in writing within twenty-one (21) days from the date of service of the order, and to judicial review, all as provided in section 42-1701A, Idaho Code.
  5. The term “permittee,” as used in this chapter, includes the heirs, successors, or assigns of the person to whom the department issued a water right permit.
History.

I.C.,§ 42-311, as added by 1986, ch. 313, § 7, p. 763; am. 1988, ch. 83, § 1, p. 143.

STATUTORY NOTES

Prior Laws.

Former§ 42-311, which comprised 1909, p. 299, § 7; am. 1915, ch. 34, § 2, p. 103; am. 1917, ch. 9, § 1, p. 11; compiled and reen. C.L. § 3265k; C.S., § 5594; I.C.A.§ 41-311; am. 1967, ch. 188, § 1, p. 618; am. 1980, ch. 238, § 12, p. 526, was repealed by S.L. 1986, ch. 313, § 6.

§ 42-312 — 42-349. [Reserved.]

  1. If the director of the department of water resources finds, on the basis of available information at any time after a license is issued, that the licensee has ceased to put the water to a beneficial use for a period of five (5) continuous years or that the licensee has wilfully or intentionally failed to comply with any of the conditions in the license, or has wilfully or intentionally failed to comply with provisions of the law governing the license, then the director of the department of water resources may issue (a) an order to show cause before the director of the department or the director’s designee on or before a date therein set, which shall be not less than thirty (30) days from the date of service, why the director of the department should not revoke said license; or (b) an order directing the licensee to cease and desist the activity or activities alleged to be in violation of the conditions of the license or in violation of provisions of the law governing the license. A cease and desist order may direct compliance with the license forthwith or may provide for a time schedule to bring the licensee into compliance with the conditions of the license.
  2. Any order to show cause or order to cease and desist shall contain a statement of findings of fact and of conclusions of law that provide a factual and legal basis for the order of the director of the department of water resources.
  3. The director of the department of water resources shall serve a copy of any such order on the licensee by personal service or by certified mail. If reasonable efforts to personally serve the order fail, or if the certified mail is returned unclaimed, the department 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 certified mail shall be complete upon receipt of the 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 publication shall be complete upon the date of the last publication.
  4. The licensee shall have a right to an administrative hearing before the department, if requested in writing within twenty-one (21) days from the date of service of the order, and to judicial review, all as provided in section 42-1701A, Idaho Code.
  5. If the director of the department of water resources has issued an order to show cause why the director should not revoke a license, the licensee may, within twenty-one (21) days from the date of service of the order, notify the director in writing of the intent of the licensee to waive the right to an administrative hearing before the department and to file a complaint in the district court for a determination of the validity of the license. The complaint shall name the director of the department of water resources as a defendant and shall be filed either in the county where the point of diversion or the place of use under the license is located, or in the county where the director issued the order to show cause. The complaint shall be filed within forty-two (42) days of the date of service of the order to show cause by the director. (6) The term “licensee,” as used in this chapter, includes the heirs, successors, or assigns of the person to whom the department issued a water right license.
History.

I.C.,§ 42-350, as added by 1986, ch. 313, § 8, p. 763; am. 1988, ch. 83, § 2, p. 143.

§ 42-351. Illegal diversion or use of water — Enforcement procedure — Injunctive relief.

  1. 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.
  2. 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.
  3. 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.
  4. 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.

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.

§ 42-352. 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.

  1. 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.
  2. 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.
  3. 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.

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 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).

RESEARCH REFERENCES

Am. Jur. 2d.

§ 42-402. Application and permit.

The application for permit and the permit issued thereon as provided in section 42-401[, Idaho Code], shall be in accordance with the laws of the state of Idaho, relative to the filing of application for permit and the obtaining of permit to appropriate the public waters of the state of Idaho.

History.

1915, ch. 111, § 2, p. 254; reen. C.L., § 3265o; C.S., § 5596; I.C.A.,§ 41-402.

STATUTORY NOTES

Cross References.

Application, hearing, proof of completion and issuance of license,§§ 42-202, 42-203A, and 42-219.

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

§ 42-403. Proof of completion of works.

Proof of completion of works under such permit shall be made in accordance with the laws of the state of Idaho relative to proof of completion under a permit to appropriate the public waters of the state of Idaho, as to all works of diversion under such permit: provided, that the department of water resources may as a condition to the issuance of a certificate of completion under such proof require from the officer or official mentioned in section 42-401[, Idaho Code,] a certificate to the effect that the proper public records of such sister state show the works to have been completed under said permit, said certificate to show in second feet the capacities of the various conduits constructed and to show in acre feet the capacities of reservoir, if any there be, constructed in such sister state under said permit.

History.

1915, ch. 111, § 3, p. 254; reen. C.L., § 3265p; C.S., § 5597; I.C.A.,§ 41-403; am. 1951, ch. 80, § 2, p. 149.

STATUTORY NOTES

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).

The bracketed insertion was added by the compiler to conform to the statutory citation style.

§ 42-404. License.

The department of water resources shall issue a license in accordance with the laws of the state of Idaho relative to the issuance of license under a permit, upon receipt of such proof as will satisfy the department as to application of the waters to beneficial use, and may as a condition of granting any such license require a certificate from the officer or official mentioned in section 42-401[, Idaho Code], to the effect that the proper public records of such sister state show that beneficial use has been made of the waters sought to be appropriated under said permit, said certificate to show the extent of such use in second feet. If such use is for irrigation, such certificate shall give a description by legal subdivisions of the land which is irrigated by such water. If such use is for power purposes such certificate shall describe the location of the point of use.

History.

1915, ch. 111, § 4, p. 254; reen. C.L., § 3265q; C.S., § 5598; I.C.A.,§ 41-404; am. 1951, ch. 80, § 3, p. 149.

STATUTORY NOTES

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).

The bracketed insertion was added by the compiler to conform to the statutory citation style.

§ 42-405. Idaho laws controlling.

Appropriations of water made under the provisions of this chapter shall be subject to the laws of the state of Idaho relative to administration, control and distribution of public waters, so long as said waters appropriated in accordance herewith shall remain within the state of Idaho: provided further, that such rights in their entirety shall be subject to all laws of the state of Idaho which have been or may be passed from time to time relative to the appropriation and control of public waters, to the end that such rights may be upon a parity with water rights within the state of Idaho.

History.

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.

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).

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

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.

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

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.

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).

§ 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

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).

§ 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.

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).

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.

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 1974, ch. 20, § 28 (§ 42-1801a).

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.

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

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.

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.

§ 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:

  1. Expenses of the district.
  2. Improvements to the district’s facilities, including a reasonable reserve for future improvements.
  3. Educational projects designed to increase public awareness in the area of water distribution, water rights and water conservation.
  4. 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.

History.

C.S., § 5615-B, as added by 1929, ch. 87, § 1, p. 140; I.C.A.,§ 41-517; am. 1992, ch. 339, § 19, p. 1014; am. 2000, ch. 83, § 3, p. 173.

§ 42-618. Alternate plan of collecting expenses in water districts. [Repealed.]

Repealed by S.L. 2020, ch. 52, § 11, effective July 1, 2020. For present comparable provisions, see§ 42-613.

History.

1947, ch. 11, § 1, p. 51; am. 1969, ch. 305, § 3, p. 913; am. 1992, ch. 339, § 20, p. 1014.

§ 42-619. Alternate plan for payment of district expenses — Treasurer — Election — Oath and bond — Removal — Compensation.

  1. The county commissioners of any county, having determined that providing the service of payment of water district expenses by the county treasurer from water district funds pursuant to section 42-613(2), Idaho Code, is an undue burden upon the county and shall no longer be provided, shall notify the director of the department of water resources of this action by December 1 in the year preceding the year for which the action shall first be effective by providing to the director a certified copy of the resolution of the commissioners taking such action.
  2. Notice of the action of the county commissioners shall be given to the water users of the district by the department of water resources together with the notice of the annual meeting given pursuant to section 42-605, Idaho Code.
  3. At each annual meeting of a district for which the county commissioners have taken the action provided for in subsection (1) of this section, or for which the water users have taken the action provided for in section 42-613(3), Idaho Code, the water users shall provide for the election and appointment of a water district treasurer. If a water district treasurer is not elected at the annual meeting, and one is found to be necessary, the director of the department of water resources is authorized to appoint a water district treasurer and fix the treasurer’s compensation. The water district treasurer shall keep a complete, accurate and permanent record of all moneys received by and disbursed for and on behalf of the district. The water district treasurer shall deposit all moneys of the district in a designated depository approved at the annual meeting and shall comply with the public depository law as contained in chapter 1, title 57, Idaho Code.
  4. Before undertaking the duties of the office, the water district treasurer shall take and subscribe to an oath before an officer authorized by the laws of the state to administer oaths, to faithfully perform the duties of the office, and shall file the oath with the director of the department of water resources. Upon issuance by the director of a certificate confirming the election or appointment of a water district treasurer, the actions taken by the water district treasurer in fulfillment of the duties of the office are covered by the state group surety bond as provided in sections 59-801 through 59-804, Idaho Code. A duly appointed treasurer 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 treasurer is reelected.
  5. The water district treasurer shall serve until a successor is elected or appointed, and qualified. A water district treasurer may be removed from office by the director for failure to perform the duties of the office in the manner provided for removal of a watermaster as provided by section 42-605(9), Idaho Code.
  6. Compensation for the services of the water district treasurer shall be set at the annual meeting and may be established on a fixed-sum, per diem, or voluntary basis. If a water district treasurer is appointed by the director in the absence of being elected at the annual meeting, the director shall fix the compensation to be paid, if any.
  7. With respect to any district for which the county commissioners have taken the action provided for in subsection (1) of this section, or for which the water users have taken the action provided for in section 42-613(3), Idaho Code, [,] the county auditor shall in the time and manner provided by section 63-1202, Idaho Code, transmit to the water district treasurer of the water district a settlement of all moneys belonging to such district paid into the county treasury and apportioned to such water district on or after the second Monday of the preceding month; provided, however, that in the months of July and January, the money may be transmitted no later than the 25th of the month. The treasurer of the water district shall immediately deposit the funds in the designated depository for the district. (8) The treasurer of the water district shall disburse moneys from the water district account only upon submission of a written voucher approved by the watermaster for expenses incurred for water district purposes related to the delivery of water or by a voucher approved by the chairman of the advisory committee for activities pursuant to resolutions adopted by the water users from district funds or funds retained pursuant to section 42-613A, Idaho Code.

(9) It shall be the duty of the water district treasurer to prepare a statement of the financial affairs of the district at the end of each fiscal year and to file the statement with the director of the department of water resources. An audit of the financial affairs of the district shall be made as required in section 67-450B, Idaho Code. A certified copy of the audit shall be filed with the director of the department of water resources following the audit.

(10) In water districts with an annual budget of seven thousand five hundred dollars ($7,500) or less, the water users may, by resolution adopted at the annual meeting, authorize the watermaster to serve as water district treasurer. Watermasters in water districts with annual budgets in excess of seven thousand five hundred dollars ($7,500) shall not be authorized to act as water district treasurer.

History.

I.C.,§ 42-619, as added by 1989, ch. 286, § 2, p. 710; am. 1992, ch. 339, § 21, p. 1014; am. 1993, ch. 387, § 11, p. 1417; am. 1996, ch. 322, § 36, p. 1029; am. 2011, ch. 176, § 4, p. 498; am. 2020, ch. 52, § 12, p. 123.

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.

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.

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.

History.

1917, ch. 53, part of § 3, p. 124; reen. C.L., § 3282d; C.S., § 5620; I.C.A.,§ 41-602.

STATUTORY NOTES

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).

§ 42-703. Measuring devices along streams.

It shall also be the duty of those using water in any district to place in the streams from which said water is diverted and at such places and intervals on said streams as the department of water resources may require suitable systems or devices for measuring the flow of water.

History.

1917, ch. 53, part of § 3, p. 124; reen. C.L., § 3282e; C.S., § 5621; I.C.A.,§ 41-603.

STATUTORY NOTES

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).

§ 42-704. Act of 1927 not retroactive. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised 1927, ch. 69, § 3, p. 85; I.C.A.,§ 41-604, was repealed by S.L. 1995, ch. 291, § 2, effective March 21, 1995.

§ 42-705. Director of the department of water resources authorized to create and supervise water measurement districts.

The director of the department of water resources is authorized to create water measurement districts to carry out the water measuring requirements of this chapter and shall have direction and control of the measurement of water existing therein or diverted from all public water sources, including ground water sources, within a water measurement district. Measurement of water within water measurement districts created pursuant to section 42-706, Idaho Code, shall be accomplished by district hydrographers as provided in this chapter and supervised by the director. Administration of water rights within water measurement districts shall be pursuant to the authority of the director of the department of water resources found elsewhere in title 42, Idaho Code, except such curtailment of diversion as is specifically authorized in section 42-714, Idaho Code.

History.

I.C.,§ 42-705, as added by 1995, ch. 291, § 3, p. 1013.

§ 42-706. Creation of water measurement districts.

  1. 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.
  2. 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.
  3. 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.

(14) At such meeting the appropriators or water users shall choose a district treasurer to be selected as may be determined at the meeting. The district treasurer shall assume the duties specified in section 42-715, Idaho Code. If a water measurement district treasurer is not selected at the annual meeting, and one is found to be necessary, the director of the department of water resources shall appoint a water measurement district treasurer.

History.

I.C.,§ 42-707, as added by 1995, ch. 291, § 3, p. 1013; am. 1998, ch. 44, § 1, p. 189.

§ 42-708. Reports of district hydrographers.

All district hydrographers shall make and certify annually a report to the department of water resources, in a form and containing the information required by the director of the department of water resources, prior to the expiration of the district hydrographer’s appointment for the current year. This report shall show the amount of water diverted at each diversion as measured or determined by the district hydrographer during the preceding period from November 1 through October 31, the total expense of the district 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 records of stream flow, depth to ground water measurements, current names and addresses of appropriators or water users within the district and such other information as the district hydrographer collected or caused to be collected in the course of completing the duties of the district as instructed by the director. The director may also ask for other information deemed necessary in assuring proper administration of water within the district. The reports of district hydrographers to the department of water resources shall be filed and kept in the office of the department.

History.

I.C.,§ 42-708, as added by 1995, ch. 291, § 3, p. 1013.

§ 42-709. Measurement of water.

  1. It shall be the duty of the district hydrographer to:
    1. Measure the diversion from the water supply within the district by each appropriator or water user, or as the director of the department of water resources may otherwise require, and report the results as provided in section 42-708, Idaho Code.
    2. Take and record measurements from devices within the district required in sections 42-702 and 42-703, Idaho Code, and report the results as provided in section 42-708, Idaho Code.
    3. Monitor the ground water levels at ground water diversions, as required by the director of the department of water resources, before the pumping period begins and during the pumping period and report the results as provided in section 42-708, Idaho Code.
    4. Maintain current records of names and addresses of ground and surface appropriators or water users within the district and report the names and addresses as provided in section 42-708, Idaho Code.
    5. Maintain and report, as provided in section 42-708, Idaho Code, any change in the diversion facilities of any appropriator or water user in the district.
    6. Immediately report to the director of the department of water resources the diversion of any water appearing to be diverted without a water right or in violation of a water right.
  2. Data collected pursuant to the provisions of subsection (1) of this section during the period November 1 through December 31 shall be reported in the report required in section 42-708, Idaho Code, submitted the following year.
  3. The district hydrographer and his assistants may make reasonable entry upon any lands in the state for the purpose of making water measurements or in direct support of making water measurements.
  4. Appropriators or water users may be required by the director, pursuant to subsections (1) through (4) of section 42-701, Idaho Code, or section 42-702 or 42-703, Idaho Code, to install measuring devices to facilitate the measurement of water required in this section.
History.

I.C.,§ 42-709, as added by 1995, ch. 291, § 3, p. 1013.

§ 42-710. District hydrographer’s term of service.

A district hydrographer shall serve throughout the year from January 1 through December 31. 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 hydrographer’s term of service to correspond with consecutive annual meeting dates or other annual dates as determined by the appropriators or water users. Assistants to the district hydrographer shall serve when necessary to make the water measurements required of the district or for such period of time as specified by resolution at any annual meeting of the appropriators or water users, provided, the period of time set by resolution is sufficient for the assistants to make all needed water measurements in the district.

History.

I.C.,§ 42-710, as added by 1995, ch. 291, § 3, p. 1013; am. 1998, ch. 44, § 2, p. 189.

§ 42-711. Expenses of the district — Approval — Allotment and charge against water user.

  1. 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.
  2. The accounting shall be submitted to the director of the department of water resources for approval.
  3. 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).
  4. 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.

The accounting shall be certified by the district hydrographer and the chairman of the advisory committee.

History.

I.C.,§ 42-711, as added by 1995, ch. 291, § 3, p. 1013; am. 2001, ch. 169, § 1, p. 581.

§ 42-712. Proposed budget for succeeding year.

Each district hydrographer shall, at least thirty (30) days prior to the annual meeting of the appropriators or water users of the water measurement district, also prepare and file with the department of water resources a proposed budget for the succeeding year, together with an allocation of the amount of the budget to the respective appropriators or water users, using the actual amounts for the past year or years as the basis for the allocation, which proposed budget and allocation shall be submitted to the appropriators or water users for consideration and approval at the next annual district meeting.

History.

I.C.,§ 42-712, as added by 1995, ch. 291, § 3, p. 1013.

§ 42-713. Budget of water measurement district — Adoption and contents — Debt of appropriator or water user.

At any annual meeting the appropriators or water users must adopt a budget covering the estimated expenses of water measurements and data collection, as required in section 42-709, Idaho Code, of the district for the ensuing year, and by resolution determine that the budget shall be collected, and the compensation of the district hydrographer and the district hydrographer’s assistants and any other expenses of the district, including the costs of the advisory committee in implementing resolutions adopted by the appropriators or water users of the district for activities in addition to the payment of the salary and operating expenses of the district hydrographer and assistants, shall be paid in the manner provided in this section. The budget shall show the aggregate amount to be collected from all the appropriators or water users in the district, and the amount to be paid by each ditch, canal company, irrigation district or other appropriator or water user, and for the purpose of computing the respective amounts, the cost of measuring the various diversions and other measurements during the past year or years not exceeding five (5) years, shall be used as a basis. Upon the adoption of the budget the amount payable by each ditch, canal company, irrigation district or other appropriator or water user, as shown by the budget, shall become the debt of each respectively and shall become due and payable as in this chapter provided.

History.

I.C.,§ 42-713, as added by 1995, ch. 291, § 3, p. 1013.

§ 42-714. Budget — Collection method — Enforcement.

  1. The budget, when approved, shall be filed with the secretary of the meeting and the district treasurer and thereupon the district hydrographer shall immediately prepare and file a certified copy thereof with the director of the department of water resources. The budget so approved shall be due and payable on the first day of April of each year unless a different due date is specified by resolution of the appropriators or water users at the annual meeting. Any assessments not paid by the due date shall bear interest from the due date until paid at the rate of eight percent (8%) per annum.
  2. The district hydrographer is authorized to collect his compensation and that of his assistants, and other expenses of the district, directly from the appropriators or water users, canal companies, and irrigation districts. The district hydrographer shall collect such compensation and expenses directly from the appropriators or water users and shall turn the collected funds over to the water measurement district treasurer for deposit and disbursement in accordance with section 42-715, Idaho Code.
  3. The district hydrographer is authorized to cause the delivery of water to be withheld or to cause diversions of water to cease by those users who have not paid their pro rata share of the cost of operating the district as levied until such time as the pro rata share of the cost is paid.
  4. The water measurement district shall have the right to collect any charges due and unpaid, by civil action, the action to be brought in any court of competent jurisdiction, in the name of the district hydrographer 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 the action.
  5. The appropriators or water users may by resolution request the department of water resources to prepare and mail the billings for the collections authorized in this section. The resolution will agree to reimburse to the department the actual cost incurred by the department in preparing and mailing the billings.
History.

I.C.,§ 42-714, as added by 1995, ch. 291, § 3, p. 1013.

§ 42-715. Duties of the water measurement district treasurer.

  1. The water measurement district treasurer shall keep a complete, accurate and permanent record of all moneys received by and disbursed for and on behalf of the district. The water measurement district treasurer shall deposit all moneys of the district in a designated depository approved at the annual meeting, and shall comply with the public depository law as contained in chapter 1, title 57, Idaho Code.
  2. Before undertaking the duties of the office, the water measurement district treasurer shall take and subscribe to an oath before an officer authorized by the laws of the state to administer oaths, to faithfully perform the duties of the office, and shall file the oath with the director of the department of water resources. Upon issuance by the director of a certificate confirming the selection of a water measurement district treasurer, the actions taken by the water measurement district treasurer in fulfillment of the duties of the office are covered by the state group surety bond as provided in sections 59-801 through 59-804, Idaho Code.
  3. The water measurement district treasurer shall serve until a successor is elected or appointed, and qualified. A water measurement district treasurer may be removed from office by the director for failure to perform the duties of the office in the manner provided for removal of a district hydrographer.
  4. Compensation for the services of the water measurement district treasurer shall be set at the annual meeting and may be established on a fixed sum, per diem, or voluntary basis. If a water measurement district treasurer is appointed by the director in the absence of being elected at the annual meeting, the director shall fix the compensation to be paid, if any.
  5. The treasurer of the water measurement district shall only disburse moneys from the water measurement district account upon submission of a written voucher approved by the district hydrographer for expenses incurred for water measurement district purposes related to the district or by a voucher approved by the chairman of the advisory committee for activities pursuant to resolutions adopted by the appropriators or water users from district funds.
  6. It shall be the duty of the water measurement district treasurer to prepare a statement of the financial affairs of the district at the end of each fiscal year and to file the statement with the director of the department of water resources. An audit of the financial affairs of the district shall be made as required in section 67-450B, Idaho Code. A certified copy of the audit shall be filed with the director of the department of water resources following the audit.
  7. In water measurement districts with an annual budget of three thousand dollars ($3,000) or less, the appropriators or water users may, by resolution adopted at the annual meeting, authorize the district hydrographer to serve as water measurement district treasurer. District hydrographers in water measurement districts with annual budgets in excess of three thousand dollars ($3,000) shall not be authorized to act as water measurement district treasurer.
History.

I.C.,§ 42-715, as added by 1995, ch. 291, § 3, p. 1013.

STATUTORY NOTES

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.

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).

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).

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).

§ 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 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).

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 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).

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.

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).

§ 42-908. 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.

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).

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.

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).

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).

RESEARCH REFERENCES

C.J.S.

§ 42-1002. Setting date for hearing.

Every such board of county commissioners shall, upon examination of such affidavit or affidavits, or from the oaths of witnesses thereto, if they find that the facts sworn to show the application to be in good faith, and that there are reasonable grounds to believe that unjust rates of compensation are, or are likely to be, charged or demanded for water from such ditch, canal, or conduit, enter an order fixing a day not sooner than ten (10) days thereafter, nor later than twenty (20) days (a special meeting may be called for that purpose), when they will hear all parties interested in such water-works aforesaid, or in procuring water therefrom, for any of the said purposes as well as all documentary or oral evidence or depositions taken according to law, touching said ditch or other water-works aforesaid, and the cost of furnishing water therefrom.

History.

1899, p. 380, § 27; reen. R.C. & C.L., § 3295; C.S., § 5642; I.C.A.,§ 41-902.

STATUTORY NOTES

Compiler’s Notes.

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

§ 42-1003. Service of notice of hearing — Depositions.

At the time so fixed all persons interested as aforesaid, on either side of the controversy, in lands which may be irrigated by such ditch or other water-works aforesaid, may appear by themselves or by their agents or attorneys, and said commissioners shall then proceed to take action in the matter of fixing such rates of compensation for the delivery of water: provided, the applicant or applicants, if the application be made by a party or parties as aforesaid desirous of procuring water, shall, within ten (10) days from the time of entering the said order fixing the hearing, cause a copy of such order, duly certified, to be delivered to the owner or owners of such ditch, canal or conduit or to the president, secretary, or agent of the company, if it be owned by a corporation or association having such officers; if any such owner cannot be found, a copy shall be left at the usual place of business of the company of which he is such officer, or at his residence if such company have [has] no place of business. And if such ditch or water-works aforesaid shall be owned by several owners, not being an incorporated company, it shall be sufficient to serve such notice by delivering a copy to a majority of them. If the applicant be the owner or party controlling such ditch, canal or conduit, such notice shall be given by causing printed copies of such order in handbill form, in conspicuous type, to be posted securely in ten (10) or more places throughout the county and section watered by such ditch or other water-works aforesaid, if the water be used for irrigation. The person or persons making such services or posting such printed copies shall make affidavit of the manner in which the same has been done, which affidavit shall be filed with the board of county commissioners. Depositions mentioned in the preceding section to be used before said commissioners shall be taken by any officer in the state authorized by law to take depositions, upon reasonable notice being given to the opposite party of the time and place of taking the same.

History.

1899, p. 380, § 28; reen. R.C. & C.L., § 3296; C.S., § 5643; I.C.A.,§ 41-903.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion near the middle of the section was added by the compiler to correct the enacting legislation.

§ 42-1004. Conduct of hearing — Order — Appeal.

Said board of commissioners may adjourn or postpone any hearing from time to time as may be found necessary; but when in session they shall hear and examine all legal testimony or proofs offered by any party interested as aforesaid, as well as concerning the original cost and present value of the works and structure of such ditch, canal or conduit, as well as the cost and expense of maintaining and operating the same, and all matters which may affect the establishment of reasonable maximum rates for water to be furnished and delivered therefrom, and they may issue subpoenas for witnesses, which subpoenas shall be served in the same manner in which subpoenas are served in civil cases; and said board may also issue subpoenas for the production of all books and papers required before them. The district court of the proper county, or the judge thereof in vacation, may, in case of refusal to obey the subpoenas of the board of county commissioners, compel obedience thereto, or punish for refusal to obey after hearing as in cases of attachment for contempt of such district court. Upon hearing and considering all the evidence and facts and matters involved in the case, said board of county commissioners shall enter an order describing the ditch, canal or conduit, or other water-works in question, with sufficient certainty, and fixing a just and reasonable maximum rate of compensation for water thereafter delivered from such ditch or other water-works as last aforesaid, within the county in which such commissioners act; and such rate shall not be changed within one (1) year from the time when such rate shall be so fixed: provided, that an appeal may be taken to the district court from any act, order or proceeding of the board by any person or corporation aggrieved thereby, as in other cases under the general statute of the state of Idaho, governing appeals from an order or proceeding of the board of county commissioners.

History.

1899, p. 380, § 29; am. 1905, p. 3, § 1; reen. R.C. & C.L., § 3297; C.S., § 5644; I.C.A.,§ 41-904.

STATUTORY NOTES

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.

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).

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.

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).

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

Am. Jur. 2d.
C.J.S.

§ 42-1107. Right of way for drains.

Whenever the owner or owners of any parcel or parcels of land desire to construct a drain for the purpose of carrying off surplus water, and they cannot agree among themselves or with the parties who own land below through which it is expedient to carry the drain in order to reach a natural waterway, then proceedings may be had in the same manner as in cases of eminent domain affecting irrigating works of diversion, and the right of way for such drains shall be regarded as equal to that of irrigation canals.

History.

1911, ch. 125, § 1, p. 413; reen. C.L., § 3304a; C.S., § 5652; I.C.A.,§ 41-1007.

CASE NOTES

Easement.

Turning of waste water into drainage ditch system constructed by plaintiffs could ripen into an easement only if there was an interference with the rights of another for the prescriptive period. Poole v. Olaveson, 82 Idaho 496, 356 P.2d 61 (1960).

RESEARCH REFERENCES

Am. Jur. 2d.

§ 42-1108. Right to cross ditches.

Any person, company or corporation, owners of any ditch, flume or other conduit, can not lawfully deny to any other person, company or corporation the right to cross their right of way with another ditch, flume or conduit either upon a higher or lower level, where the same can be done in a convenient and safe manner: provided, that such second person, company or corporation shall be liable for all damages that may accrue from the construction of such ditch, flume or other conduit across the conduit of another.

History.

1899, p. 380, last half of § 10; am. R.C. & C.L., § 3305; C.S., § 5653; I.C.A.,§ 41-1008.

CASE NOTES

Maintenance of Flume.

Where in crossing another’s ditch there was temporary elimination of same, and flume was constructed to take its place, crossing company was required to keep flume in good condition and was liable for all damages resulting from failure to do so. Mahaffey v. Carlson, 39 Idaho 162, 228 P. 793 (1924).

Chapter 12 MAINTENANCE AND REPAIR OF DITCHES

Sec.

§ 42-1201. Ditches to be kept full.

Every person, company or corporation owning or controlling any ditch, canal or conduit for the purpose of irrigation shall, during the time from April first to the first day of November of each year, keep a flow of water therein sufficient to the requirements of such persons as are properly entitled to the use of water therefrom: provided, however, that when the public streams or other natural water sources from which the water is obtained is [are] too low and inadequate for that purpose, or when the board of directors or governing body of an organization or entity furnishing water deem it in the best interests of that organization or entity to adjust the dates of availability and provide for termination of irrigation water, then such ditch, canal or conduit shall be kept with as full a flow of water therein as may be practicable, subject, however, to the rights of priority from the streams or other natural sources as provided by law.

History.

1899, p. 380, § 15; reen. R.C. & C.L., § 3306; C.S., § 5654; I.C.A.,§ 41-1101; am. 1989, ch. 236, § 1, p. 573.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion near the middle of the section was added by the compiler to grammatically correct the sentence.

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.

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).

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

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.

Where in crossing another’s ditch there was temporary elimination of same, and flume was constructed to take its place, crossing company was required to keep flume in good condition and was liable for all damages resulting from failure to do so. Mahaffey v. Carlson, 39 Idaho 162, 228 P. 793 (1924).

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.

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).

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.