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title-42•Title 42 — Irrigation and Drainage — Water Rights and Reclamation
title-42Idaho Code tit. 42CodeJan 1, 1881
Idaho Code, published by the Idaho Legislative Services Office. Idaho Statutes are updated to the website July 1 following the legislative session.
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.
[(42-101) 1900, p. 191, sec. 9b; reen. R.C. & C.L., sec. 3240; C.S., sec. 5556; I.C.A., sec. 41-101.]
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.
[(42-102) 1899, p. 380, secs. 1, 21; reen. R.C. & C.L., sec. 3241; C.S., sec. 5557; I.C.A., sec. 41-102.]
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.
[(42-103) R.S., sec. 3155; 1899, p. 380, sec. 2; reen. R.C. & C.L., sec. 3242; C.S., sec. 5558; I.C.A., sec. 41-103; am. 1971, ch. 177, sec. 1, p. 843.]
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.
[(42-104) R.S., sec. 3156; 1899, p. 380, sec. 3; reen. R.C. & C.L., sec. 3243; C.S., sec. 5559; I.C.A., sec. 41-104.]
(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:
(a) 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;
(b) 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.
[(42-105) R.S., sec. 3158; reen. R.C., sec. 3244; am. 1911, ch. 149, sec. 1, p. 454; C.L., sec. 3244; C.S., sec. 5560; I.C.A., sec. 41-105; am. 1969, ch. 300, sec. 1, p. 900; am. 1998, ch. 424, sec. 1, p. 1339.]
As between appropriators, the first in time is first in right.
[(42-106) R.S., sec. 3159; 1899, p. 380, sec. 4; reen. R.C. & C.L., sec. 3245; C.S., sec. 5561; I.C.A., sec. 41-106.]
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.
[(42-107) 1899, p. 380, sec. 23; reen. R.C. & C.L., sec. 3246; C.S., sec. 5562; I.C.A., sec. 41-107.]
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.
[(42-108) R.S., sec. 3157; 1899, p. 380, sec. 11; reen. R.C. & C.L., sec. 3247; C.S., sec. 5563; I.C.A., sec. 41-108; am. 1943, ch. 53, sec. 1, p. 101; am. 1947, ch. 80, sec. 1, p. 130; am. 1969, ch. 303, sec. 1, p. 905; am. 1981, ch. 147, sec. 1, p. 253; am. 1986, ch. 313, sec. 1, p. 764.]
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.
[42-108A, added 1981, ch. 267, sec. 1, p. 566.]
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.
[42-108B, added 1981, ch. 267, sec. 2, p. 567; am. 2011, ch. 243, sec. 1, p. 655.]
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.
[(42-109) R.S., part of sec. 3189; reen. R.C. & C.L., sec. 3248; C.S., sec. 5564; I.C.A., sec. 41-109.]
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.
[(42-110) 1899, p. 380, sec. 32; reen. R.C. & C.L., sec. 3249; C.S., sec. 5565; I.C.A., sec. 41-110; am. 2004, ch. 191, sec. 1, p. 601.]
(1) For purposes of sections 42-221, 42-227, 42-230, 42-235, 42-237a, 42-242, 42-243, and 42-1401A, Idaho Code:
(a)(i) "Domestic purposes" or "domestic uses" means:
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 (1/2) acre of land, if the total use does not exceed thirteen thousand (13,000) gallons per day; or
The use of water for any other purpose, if the total use does not exceed a diversion volume of two and eight-tenths (2.8) acre feet per year.
(ii) "Domestic purposes" or "domestic uses" shall not include water for the following purposes, unless the use meets the diversion volume limitations set forth in paragraph (a)(i)2. of this subsection:
Mobile home parks or recreational vehicle parks;
Apartments, condominiums, and similar developments with multiple dwelling units;
Subdivisions, except as provided in subsection (3) of this section; or
Commercial or business establishments or mixed-use establishments where the water is used primarily for commercial or business purposes.
(b) "In-home use" means the utilization of water within a residence or household, including all activities that require water, such as drinking, cooking, bathing, and cleaning within and around the household. It does not include irrigation of lawns, gardens, landscaping, pastures, or other open spaces.
(c) "Subdivision" means a tract of land divided into five (5) or more lots, parcels, or sites for the purpose of sale or building development, whether immediate or future; provided that this definition shall not include a bona fide division or partition of agricultural land for agricultural purposes. For purposes of this paragraph, "bona fide division or partition of agricultural land for agricultural purposes" means the division of land into lots, all of which are five (5) acres or larger and maintained as agricultural lands.
(2) Except as provided in subsection (3) of this section, multiple water rights for domestic uses or domestic purposes 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.
(3) Multiple water rights for domestic purposes or uses may be established and exercised from the same point or points of diversion if the use is limited to residential, in-home use. This subsection does not affect any other permitting requirement or other requirement that may apply to the use of water within a subdivision.
[(42-111) 1899, p. 380, part of sec. 12; reen. R.C. & C.L., sec. 3250; C.S., sec. 5566; I.C.A., sec. 41-111; am. 1990, ch. 319, sec. 1, p. 870; am. 1995, ch. 233, sec. 1, p. 790; am. 2025, ch. 129, sec. 1, p. 663; am. 2026, ch. 2, sec. 1, p. 7.]
By completion is meant conducting the waters to the place of intended use.
[(42-112) R.S., sec. 3162; 1899, p. 380, sec. 7; reen. R.C. & C.L., sec. 3251; C.S., sec. 5567; I.C.A., sec. 41-112.]
(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:
(a) 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
(b) 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.
(a) 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:
(i) The water is diverted from a surface water source to a trough or tank through an enclosed water delivery system;
(ii) 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;
(iii) 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;
(iv) The diversion of water out of the stream in this manner does not injure other water rights;
(v) The use of the water diverted is for watering livestock; and
(vi) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
[42-113, added 1984, ch. 124, sec. 1, p. 299; am. 1998, ch. 344, sec. 1, p. 1095; am. 2000, ch. 255, sec. 1, p. 722; am. 2018, ch. 146, sec. 1, p. 303.]
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.
[42-114, added 1986, ch. 199, sec. 1, p. 498.]
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.
[42-115, added 2019, ch. 16, sec. 1, p. 18.]
(1) All rights to divert and use the waters of this state for beneficial purposes shall hereafter be acquired and confirmed under the provisions of this chapter and not otherwise. And after the passage of this title, all the waters of this state shall be controlled and administered in the manner herein provided. Such appropriation shall be perfected only by means of the application, permit and license procedure as provided in this title; provided, however, that in the event an appropriation has been commenced by diversion and application to beneficial use prior to the effective date of this act, it may be perfected under such method of appropriation.
(2) No person shall use the public waters of the state of Idaho except in accordance with the laws of the state of Idaho. No person shall divert any water from a natural watercourse or apply water to land without having obtained a valid water right to do so, or apply it to purposes for which no valid water right exists.
(3) Notwithstanding the provisions of subsection (2) of this section or section 42-229, Idaho Code, water may be diverted and used at any time, with or without a water right:
(a) To extinguish an existing fire on private or public lands, structures, or equipment, or to prevent an existing fire from spreading to private or public lands, structures, or equipment endangered by an existing fire;
(b) For forest practices as defined in section 38-1303(1), Idaho Code, and forest dust abatement. Such forest practices and forest dust abatement use is limited to two-tenths (0.2) acre-feet per day from a single watercourse; or
(c) For the immediate cleanup or removal of hazardous substances or petroleum, as defined in section 39-7203, Idaho Code, that is part of an emergency response by a state emergency response team or local emergency response authority to a release, as defined in section 39-7103, Idaho Code, to protect public health or the environment. The Idaho department of environmental quality, in coordination with the Idaho office of emergency management, shall report to the Idaho department of water resources within seventy-two (72) hours the location, need, and expected duration of the emergency response and shall consult the director of the Idaho department of water resources on maintaining delivery of existing water rights during cleanup or removal operations.
(4) For purposes of subsection (3)(b) of this section, no person shall divert water from a canal or other irrigation facility while the water is lawfully diverted, captured, conveyed, used or otherwise physically controlled by the appropriator.
(5) If water is to be diverted from a natural watercourse within a water district, or from a natural watercourse from which an irrigation delivery entity diverts water, a person diverting water pursuant to subsection (3)(b) of this section shall give notice to the watermaster of the intent to divert water for the purposes set forth in said subsection. In the event that the water to be diverted pursuant to subsection (3)(b) of this section is not within a water district, but an irrigation delivery entity diverts water from the same natural watercourse, the required notices shall be given to said irrigation delivery entity. For uses authorized in subsection (3)(a) of this section, notice shall not be required but may be provided when it is reasonable to do so.
(6) A water right holder who determines that a use set forth in subsection (3) of this section is causing a water right to which the holder is entitled to be deprived of water to which it may be otherwise entitled may petition the director of the department of water resources to order cessation of or modification of the use to prevent injury to a water right. Upon such a petition, the director shall cause an investigation to be made and may hold hearings or gather information in some other manner. In the event that the director finds that an injury is occurring to a water right, he may require the use to cease or be modified to ensure that no injury to other water rights occurs. A water right holder feeling aggrieved by a decision or action of the director shall be entitled to contest the action of the director pursuant to section 42-1701A(3), Idaho Code.
(7) This title delegates to the department of water resources exclusive authority over the appropriation of the public surface and ground waters of the state. No other agency, department, county, city, municipal corporation or other instrumentality or political subdivision of the state shall enact any rule or ordinance or take any other action to prohibit, restrict or regulate the appropriation of the public surface or ground waters of the state, and any such action shall be null and void.
(8) Notwithstanding the provisions of subsection (2) of this section, a municipality or municipal provider as defined in section 42-202B, Idaho Code, a sewer district as defined in section 42-3202, Idaho Code, or a regional public entity operating a publicly owned treatment works shall not be required to obtain a water right for the collection, treatment, storage or disposal of effluent from a publicly owned treatment works or other system for the collection of sewage or stormwater where such collection, treatment, storage or disposal, including land application, is employed in response to state or federal regulatory requirements. If land application is to take place on lands not identified as a place of use for an existing irrigation water right, the municipal provider or sewer district shall provide the department of water resources with notice describing the location of the land application, or any change therein, prior to land application taking place. The notice shall be upon forms furnished by the department of water resources and shall provide all required information.
(9) Notwithstanding the provisions of subsection (2) of this section, a person or entity operating a canal or conduit for irrigation or other beneficial uses authorized by a water right that permits water to be diverted from a natural watercourse for such purposes shall not be required to obtain an additional water right for the incidental use of that same water where the water is diverted for irrigation or other beneficial use and thereafter used to generate hydroelectricity in the canal or conduit, if (a) the use for hydroelectric purposes does not increase the rate of diversion of water from the natural watercourse, and (b) the person or entity has the right to generate electricity under a license or exemption issued under the federal power act, a lease of power privileges or other authorization, agreement or contract with reclamation or other federal, state or local governmental agency. The incidental hydropower use shall be junior to and fully subordinated to all existing and future uses and shall be nonconsumptive. To qualify for this exemption, the person or entity must give written notice to the department of water resources and the watermaster describing the hydropower use, location and capacity of the project upon completion of the project. The notice must include a copy of the order or document authorizing the project. The notice must also certify that the incidental use of water for hydropower purposes under the existing water right meets all the requirements of this subsection.
[(42-201) 1903, p. 223, sec. 41; am. R.C. & C.L., sec. 3252; C.S., sec. 5568; I.C.A., sec. 41-201; am. 1971, ch. 177, sec. 2, p. 843; am. 1986, ch. 313, sec. 2, p. 765; am. 2000, ch. 291, sec. 1, p. 1007; am. 2006, ch. 256, sec. 1, p. 793; am. 2008, ch. 320, sec. 1, p. 887; am. 2012, ch. 218, sec. 1, p. 596; am. 2016, ch. 139, sec. 1, p. 405; am. 2019, ch. 211, sec. 1, p. 641; am. 2020, ch. 6, sec. 1, p. 6.]
(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:
(a) The name and post-office address of the applicant.
(b) The source of the water supply.
(c) 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.
(d) 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.
(e) 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. An application for reasonably anticipated future needs for or including geothermal heating and cooling shall include sufficient information and documentation to demonstrate where and how injection of the diverted low temperature geothermal water is or will be accomplished.
(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.
[(42-202) 1903, p. 223, sec. 1; am. 1905, p. 357, sec. 1; reen. R.C., sec. 3253; am. 1913, ch. 37, sec. 1, p. 136; reen. C.L., sec. 3253; C.S. sec. 5569; am. 1929, ch. 281, sec. 1, p. 675; I.C.A., sec. 41-202; am. 1935, ch. 145, sec. 1, p. 353; am. 1967, ch. 374, sec. 1, p. 1079; am. 1973, ch. 184, sec. 1, p. 428; am. 1994, ch. 180, sec. 83, p. 482; am. 1996, ch. 297, sec. 1, p. 968; am. 2012, ch. 120, sec. 1, p. 335; am. 2026, ch. 65, sec. 1, p. 266.]
(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:
(a) For prevention of flood damage;
(b) For ground water recharge;
(c) For ground or surface water remediation; or
(d) 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.
(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.
[42-202A, added 1993, ch. 255, sec. 1, p. 880; am. 2017, ch. 210, sec. 1, p. 513.]
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:
(a) A municipality that provides water for municipal purposes to its residents and other users within its service area;
(b) 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
(c) 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)(a) "Municipal purposes" refers to water that a municipal provider is entitled or obligated to supply to users within a service area, including those located outside the boundaries of a municipality served by a municipal provider, for residential use, commercial use, industrial use, irrigation of parks and open spaces, geothermal heating and cooling, and related purposes, or a combination thereof.
(b)(i) Geothermal heating and cooling are considered "municipal purposes" if:
It is provided by a municipality from a low temperature geothermal water source, as that term is defined in section 42-230(a)(1), Idaho Code;
The water use is non-consumptive under normal operating conditions; and
The use otherwise complies with section 42-233, Idaho Code.
(ii) A municipality is obligated to supply geothermal heating and cooling only to those users approved for service in accordance with its local codes and policies.
(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. Reasonably anticipated future needs for geothermal heating and cooling require injection of diverted low temperature geothermal water back into the same aquifer from which it was diverted and shall be considered when determining what needs will be expected within the planning horizon.
(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.
[42-202B, added 1996, ch. 297, sec. 2, p. 970; am. 1997, ch. 373, sec. 1, p. 1188; am. 2000, ch. 132, sec. 36, p. 344; am. 2002, ch. 306, sec. 1, p. 870; am. 2003, ch. 298, sec. 1, p. 806; am. 2004, ch. 258, sec. 1, p. 733; am. 2005, ch. 167, sec. 15, p. 526; am. 2026, ch. 65, sec. 2, p. 268.]
(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.
[(42-203A) C.S., sec. 5569A, as added by 1929, ch. 212, sec. 1, p. 429; I.C.A., sec. 41-203; am. 1935, ch. 145, sec. 2, p. 353; am. 1967, ch. 374, sec. 2, p. 1079; am. 1969, ch. 469, sec. 1, p. 1346; am. 1978, ch. 306, sec. 1, p. 767; am. 1980, ch. 238, sec. 2, p. 527; am. and redesig. 1985, ch. 17, sec. 1, p. 23; am. 1990, ch. 141, sec. 4, p. 317; am. 1994, ch. 64, sec. 1, p. 122; am. 2003, ch. 298, sec. 2, p. 808; am. 2011, ch. 170, sec. 1, p. 488.]
(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.
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:
(a) The term of any power purchase contract which is, or reasonably may become, applicable to, such permit or license;
(b) 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);
(c) The term of any FERC license granted, or which reasonably may be granted, with respect to any particular permit or license for power purpose;
(d) Existing downstream water uses established pursuant to state law.
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.
(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.
[42-203B, added 1985, ch. 17, sec. 2, p. 25 and ch. 224, sec. 1, p. 537; am. 1986, ch. 117, sec. 1, p. 309; am. 2013, ch. 45, sec. 1, p. 94.]
(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.
(2) (a) The director in making such public interest determinations for purposes of this section shall consider:
(i) The potential benefits, both direct and indirect, that the proposed use would provide to the state and local economy;
(ii) 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;
(iii) The promotion of the family farming tradition;
(iv) The promotion of full economic and multiple use development of the water resources of the state of Idaho;
(v) 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.
No single factor enumerated above shall be entitled to greater weight by the director in arriving at this determination.
(b) The burden of proof under the provisions of this section shall be on the protestant.
[42-203C, added 1985, ch. 17, sec. 3, p. 26; am. 1986, ch. 117, sec. 2, p. 311.]
(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.
[42-203D, added 1985, ch. 17, sec. 4, p. 27; am. 1986, ch. 117, sec. 3, p. 311; am. 1993, ch. 216, sec. 32, p. 612.]
(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 related to the permit holder’s land or water development, 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.
(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: (i) under any permit authorizing the diversion of two (2) or more cubic feet per second of water or the development or cultivation of one hundred (100) or more acres of land or (ii) under any permit that, when combined with another permit, authorizes the diversion of two (2) or more cubic feet per second of water or the development or cultivation of one hundred (100) or more acres of land, provided the permits have a common or combined diversion and distribution system, are owned by the same permit holder, and are approved within five (5) years of each other 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.
(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.
(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.
(7) The provisions of this section as it becomes effective on July 1, 2021, shall apply to all existing permits pending before the department of water resources on July 1, 2021. Permits pending before the department on July 1, 2021, are entitled to the maximum qualifying extension available pursuant to the provisions of this section regardless of whether the permittee received a prior extension under subsection (3)(f) of this section.
[42-204, added 1903, sec. 2, p. 223; am. 1905, sec. 2, p. 357; reen. R.C., sec. 3254; am. 1911, ch. 64, sec. 1, p. 184; am. 1915, ch. 133, sec. 1, p. 289; reen. C.L., sec. 3254; C.S., sec. 5570; am. 1923, ch. 135, sec. 1, p. 196; I.C.A., sec. 41-204; am. 1935, ch. 145, sec. 3, p. 353; am. 1941, ch. 161, sec. 1, p. 320; am. 1949, ch. 127, sec. 1, p. 222; am. 1963, ch. 214, sec. 1, p. 618; am. 1967, ch. 374, sec. 3, p. 1079; am. 1980, ch. 238, sec. 3, p. 529; am. 1982, ch. 62, sec. 1, p. 122; am. 1986, ch. 313, sec. 3, p. 765; am. 1989, ch. 96, sec. 1, p. 223; am. 2013, ch. 82, sec. 1, p. 201; am. 2020, ch. 164, sec. 1, p. 477; am. 2021, ch. 162, sec. 1, p. 459.]
(1) The intent of this section is to conserve ground water resources and secure the maximum use and benefit from surface water resources in Idaho by requiring that permits to appropriate ground water to irrigate land with surface water rights for irrigation be conditioned to require use of available surface water as the primary irrigation supply and use of ground water as a supplemental water supply when surface water is not available. Surface water rights include decreed, licensed, claimed, or permitted water rights diverted from surface sources, such as springs, streams, rivers, drains, or lakes.
(2) When the department of water resources receives an application to appropriate ground water, as defined in section 42-230(a), Idaho Code, for irrigation purposes, it shall determine whether the proposed place of use:
(a) Has appurtenant surface water rights for irrigation purposes; or
(b) Is entitled to distribution of surface water from an irrigation district, canal company, ditch users association, or other water delivery entity for irrigation purposes and whether the entity’s distribution system is capable of delivering the water to the land.
(3) When the department finds the proposed place of use meets the criteria of subsection (2) of this section and the requirements of section 42-203A(5), Idaho Code, have been met, the department shall condition the permit for irrigation from ground water to:
(a) Require use of all surface water rights identified in subsection (2) of this section when irrigating the proposed place of use and limit the use of ground water to those times when the surface water supply is not reasonably sufficient to irrigate the place of use or is not available due to drought, curtailment by priority, or the seasonal startup and shutoff or maintenance schedules for surface water deliveries; and
(b) Prohibit the diversion and use of ground water for irrigation purposes if use of surface water is intentionally discontinued or reduced or is not deliverable due to nonpayment of annual assessments levied by the water delivery entity.
(4) The department may elect to not condition a permit pursuant to subsection (3) of this section if the department finds that:
(a) The appurtenant surface water rights for irrigation are not distributed by a water delivery entity identified by subsection (2)(b) of this section and the applicant demonstrates that the use of surface water for irrigation is not necessary to protect the local public interest or to conserve water resources in the state of Idaho; or
(b) The application is submitted in connection with a proposed or approved mitigation plan or ground water management plan that allows the diversion of ground water to irrigate land with appurtenant surface water rights.
(5) This section, and any determinations by the department concerning the appropriation of ground water as provided in this section, shall be binding upon the applicant and the applicant’s successors and assigns in any proceedings before all other state and local governmental entities.
[42-204A, added 2023, ch. 97, sec. 1, p. 292.]
(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.
[42-205, added 1937, ch. 142, sec. 1, p. 233; am. 1947, ch. 66, sec. 1, p. 106; am. 1981, ch. 206, sec. 1, p. 372.]
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.
[42-206, added 1937, ch. 142, sec. 2, p. 233; am. 1947, ch. 66, sec. 2, p. 106; am. 1986, ch. 217, sec. 1, p. 554.]
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, 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.
[42-207, added 1937, ch. 142, sec. 3, p. 233; am. 1947, ch. 66, sec. 3, p. 106.]
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.
[42-208, added 1937, ch. 142, sec. 4, p. 233; am. 1947, ch. 66, sec. 4, p. 106.]
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.
[42-209, added 1937, ch. 142, sec. 5, p. 233; am. 1947, ch. 66, sec. 5, p. 106.]
The provisions of this act shall not apply to any municipal corporations within the state.
[42-210, added 1937, ch. 142, sec. 6, p. 233.]
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, 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, 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.
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.
[(42-211) 1907, p. 314, sec. 1; reen. R.C. & C.L., sec. 3255; C.S., sec. 5571; I.C.A., sec. 41-205; am. 1967, ch. 374, sec. 4, p. 1079; am. 1980, ch. 238, sec. 4, p. 531.]
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.
[(42-212) 1911, ch. 230, sec. 1, p. 782; reen. C.L., sec. 3255a; C.S., sec. 5572; I.C.A., sec. 41-206.]
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.
[(42-213) 1911, ch. 230, sec. 2, p. 783; reen. C.L., sec. 3255b; C.S., sec. 5573; I.C.A., sec. 41-207.]
(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:
(a) The name and post office address of the permit holder;
(b) The permit number;
(c) A description of the extent of the use;
(d) In the case of a municipal provider, a description of the current service area;
(e) The source of the water used; and
(f) 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:
(a) 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.
(b) 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.
[42-217, added 1903, sec. 7, p. 223; reen. R.C., sec. 3260; am. 1913, ch. 36, sec. 1, p. 134; am. 1915, ch. 94, sec. 1, p. 216; reen. C.L., sec. 3260; C.S., sec. 5577; I.C.A., sec. 41-211; am. 1967, ch. 374, sec. 8, p. 1079; am. 1979, ch. 138, sec. 1, p. 434; am. 1986, ch. 242, sec. 1, p. 658; am. 1996, ch. 297, sec. 3, p. 971; am. 1998, ch. 332, sec. 1, p. 1066; am. 2020, ch. 164, sec. 2, p. 480.]
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.
[42-217a, added 1987, ch. 97, sec. 1, p. 192.]
Whenever a less period of time than the maximum prescribed in section 42-204 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. 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.
[(42-218) 1913, ch. 47, sec. 1, p. 154; am. by implication, 1915, ch. 94, sec. 1, p. 216; adding a proviso extending the maximum period of ten years in some cases; compiled and reen. C.L., sec. 3260a; C.S., sec. 5578; I.C.A., sec. 41-212; am. 1967, ch. 374, sec. 9, p. 1079.]
(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:
(a) 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.
(b) A statement of reasonable cause for filing a late proof of beneficial use.
(c) A reinstatement fee of two hundred fifty dollars ($250).
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.
(4) The original priority date of a lapsed permit shall not be reinstated except upon a showing of error or mistake of the department.
[42-218a, added 1967, ch. 374, sec. 10, p. 1079; am. 1983, ch. 157, sec. 1, p. 435; am. 2011, ch. 171, sec. 1, p. 490; am. 2020, ch. 164, sec. 3, p. 481.]
(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.
[42-219, added 1903, sec. 8, p. 233; reen. R.C., 3261; modified by 1913, ch. 47, sec. 1, p. 154, and 1915, ch. 94, sec. 2, p. 216; compiled and reen. C.L., sec. 3261; C.S., sec. 5579; am. 1925, ch. 44, sec. 1, p. 61; I.C.A., sec. 41-213; am. 1967, ch. 374, sec. 11, p. 1079; am. 1980, ch. 238, sec. 5, p. 533; am. 1996, ch. 297, sec. 4, p. 972; am. 1998, ch. 332, sec. 2, p. 1067; am. 2002, ch. 306, sec. 2, p. 871; am. 2011, ch. 210, sec. 1, p. 591; am. 2020, ch. 164, sec. 4, p. 481.]
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.
[42-220, added 1903, sec. 9, p. 223; 1905, ch. 166, sec. 1, p. 174; reen. R.C. & C.L., sec. 3262; C.S., sec. 5580: I.C.A., sec. 41-214; am. 2020, ch. 164, sec. 5, p. 483.]
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:
A. For filing an application for a permit to appropriate the public waters of this state:
For a quantity of 0.2 c.f.s. or less or for a storage volume of 20 acre feet or less
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
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
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.
B. For filing an application for an extension of time within which to resume the use of water under a vested water right
C. For filing application for amendment of permit
D. 1. For filing claim to use right under section 42-243
, Idaho Code
i. After June 30, 1998
ii. After June 30, 2005
iii. For every ten (10) years after June 30, 2005, an additional
E. For filing an assignment of permit
F. For readvertising application for permit, change, exchange, or extension to resume use
G. For certification, each document
H. For making photocopies of office records, maps and documents for public use
I. For filing request for extension of time within which to submit proof of beneficial use on a water right permit
J. For tasks requiring in excess of one (1) hour research or for computerized data provided for public use
.
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:
except no fee shall be charged for domestic use for which a permit is not required.
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
For a quantity greater than 1.0 c.f.s., or for a storage volume greater than 100 acre feet
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
M. For filing an application to alter a stream channel pursuant to chapter 38, title 42, Idaho Code:
Application for recreational dredge permits by residents of the state
Application for recreational dredge permits by nonresidents of the state
Other applications
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:
For a quantity of 0.2 c.f.s. or less, or for a storage volume of 20 acre feet or less
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
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
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.
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.
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.
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.
For any application to change the nature of use of water under one (1) or more vested water right(s), an additional fee of $250 shall apply.
For an application to change only the legal description for the place of use or the point of diversion when there will be no physical change in the location of the place of use or the point of diversion and no unauthorized physical change in the location of the place of use or the point of diversion has occurred inconsistent with the decree, license or transfer defining the water right, the total filing fee shall be $50.00 per water right.
P. For filing a notice of land application of effluent as required by section 42-201
(8), Idaho Code
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.
[(42-221) 1903, p. 223, sec. 10; reen. R.C. & C.L., sec. 3263; C.S., sec. 5581; am. 1923, ch. 53, sec. 1, p. 60; I.C.A., sec. 41-215; am. 1941, ch. 116, sec. 1, p. 228; am. 1967, ch. 374, sec. 12, p. 1079; am. 1968 (2nd E.S.), ch. 25, sec. 1, p. 47; am. 1971, ch. 151, sec. 1, p. 750; am. 1978, ch. 143, sec. 1, p. 323; am. 1980, ch. 151, sec. 1, p. 320; am. 1981, ch. 147, sec. 2, p. 253; am. 1983, ch. 61, sec. 2, p. 141; am. 1985, ch. 226, sec. 1, p. 540; am. 1986, ch. 242, sec. 2, p. 657; am. 1986, ch. 313, sec. 4, p. 763; am. 1990, ch. 319, sec. 2, p. 870; am. 1994, ch. 64, sec. 2, p. 123; am. 1997, ch. 305, sec. 1, p. 908; am. 1998, ch. 79, sec. 1, p. 282; am. 2000, ch. 177, sec. 1, p. 445; am. 2011, ch. 172, sec. 1, p. 491; am. 2012, ch. 218, sec. 2, p. 597; am. 2018, ch. 42, sec. 1, p. 105.]
(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.
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. An application for reasonably anticipated future needs for or including geothermal heating and cooling shall include sufficient information and documentation to demonstrate where and how injection of the diverted low temperature geothermal water is or will be accomplished.
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.
(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.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(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.
[(42-222) 1903, p. 223, sec. 11; am. 1905, p. 27, sec. 1; am. 1907, p. 507, sec. 1; reen. R.C., sec. 3264; am. 1915, ch. 34, sec. 1, p. 103; am. 1917, ch. 166, sec. 1, p. 495; C.L., sec. 3264; C.S., sec. 5582; am. 1921, ch. 146, sec. 1, p. 334; I.C.A., sec. 41-216; am. 1933, ch. 193, sec. 1, p. 382; am. 1943, ch. 53, sec. 2, p. 101; am. 1945, ch. 63, sec. 1, p. 79; rep. and reen. 1969, ch. 303, sec. 2, p. 905; am. 1980, ch. 238, sec. 6, p. 534; am. 1981, ch. 147, sec. 3, p. 255; am. 1982, ch. 202, sec. 1, p. 531; am. 1986, ch. 313, sec. 5, p. 769; am. 1988, ch. 153, sec. 1, p. 273; am. 1990, ch. 141, sec. 5, p. 319; am. 1994, ch. 64, sec. 3, p. 125; am. 1996, ch. 297, sec. 5, p. 973; am. 1996, ch. 333, sec. 1, p. 1128; am. 1997, ch. 373, sec. 2, p. 1189; am. 2000, ch. 85, sec. 1, p. 181; am. 2003, ch. 298, sec. 3, p. 809; am. 2004, ch. 62, sec. 1, p. 280; am. 2020, ch. 296, sec. 1, p. 849; am. 2026, ch. 65, sec. 3, p. 269.]
(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.
(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.
[42-222A, added 1993, ch. 161, sec. 1, p. 411; am. 2001, ch. 126, sec. 1, p. 447.]
(1) A change to the generally described place of use of a water right held by any corporation organized for the operation, control, or management of an irrigation project or canal system may be made without applying for a change in use of the corporation’s water right under the provisions of section 42-222, Idaho Code. The corporation must file with the department of water resources a map portraying the changes to the generally described place of use within which the corporation’s water rights will be exercised. For this filing requirement, it is sufficient to provide a drawing on a seven-and-one-half (7.5) minute quadrangle map having a scale of one to twenty-four thousand (1:24,000) that shows the changes to the generally described place of use to include each quarter-quarter section within which irrigation occurs. The corporation may alternatively submit a digital file depicting a map that shows the boundaries of the generally described place of use, delineated at a minimum scale of one to twenty-four thousand (1:24,000), with a defined projection, and in a format that can be opened using standard geographic information system software and includes each quarter-quarter section within which irrigation occurs.
(2) The director shall review the change to the generally described place of use filed with the department to verify that it will not result in an increase in either the rate of flow diverted or in the total number of acres irrigated as authorized by the water right, shall not result in an enlargement of other water rights within the place of use of the corporation’s water rights, and shall cause no injury to other water rights. Upon request from the director, the corporation shall submit information to support the director’s inquiry regarding the review criteria.
(3) Following the director’s review and approval or denial, if the holder of any water right or the corporation seeks to challenge the director’s decision, the challenge may be commenced only by requesting a hearing pursuant to 42-1701A(3), title 42, Idaho Code, thereby initiating a contested case before the department, pursuant to the administrative procedures act, chapter 52, title 67, Idaho Code.
[42-222B, added 2021, ch. 156, sec. 1, p. 432.]
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.
(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:
(a) Instituted proceedings to declare a forfeiture;
(b) Obtained a valid water right authorizing the use of such water with a priority date prior to the resumption of use; or
(c) Used the water made available by nonuse pursuant to an existing water right.
[42-223, added 2000, ch. 85, sec. 3, p. 185; am. 2002, ch. 343, sec. 1, p. 961; am. 2003, ch. 166, sec. 1, p. 470; am. 2004, ch. 178, sec. 1, p. 560; am. 2008, ch. 239, sec. 1, p. 719; am. 2020, ch. 296, sec. 2, p. 852.]
(1) Within thirty (30) days of receipt by the director of the department of water resources of a petition or other information that a stockwater right has not been put to beneficial use for a term of five (5) years, the director must determine whether the petition or other information, or both, presents prima facie evidence that the stockwater right has been lost through forfeiture pursuant to section 42-222(2), Idaho Code. If the director determines the petition or other information, or both, is insufficient, he shall notify the petitioner of his determination, which shall include a reasoned statement in support of the determination, and otherwise disregard for the purposes of this subsection the other, insufficient, information.
(2) If the director determines the petition or other information, or both, contains prima facie evidence of forfeiture due to nonuse, the director must within thirty (30) days issue an order to the stockwater right owner to show cause before the director why the stockwater right has not been lost through forfeiture pursuant to section 42-222(2), Idaho Code. Any order to show cause must contain the director’s findings of fact and a reasoned statement in support of the determination.
(3) The director must serve a copy of any order to show cause on the stockwater right owner by personal service or by certified mail with return receipt. 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 all or a part of the place of use is on federal or state grazing lands, the director must mail by certified mail with return receipt a copy of the order to show cause to the holder or holders of any livestock grazing permit or lease for said lands. However, the director shall not issue an order to show cause where the director has or receives written evidence signed by the principal and the agent, prior to issuance of said order, that a principal/agent relationship existed during the five (5) year term mentioned in subsection (1) of this section or currently exists between the owner of the water right as principal and a permittee or lessee as agent for the purpose of obtaining or maintaining the water right.
(5) The director may consider multiple stockwater rights held by a single owner in a single order to show cause.
(6) The stockwater right owner has twenty-one (21) days from completion of service of the order to show cause to request in writing a hearing pursuant to section 42-1701A(1) and (2), Idaho Code.
(7) If the stockwater right owner fails to timely respond to the order to show cause, the director must issue an order within fourteen (14) days regarding forfeiture stating the stockwater right has been forfeited pursuant to section 42-222(2), Idaho Code.
(8) If the stockwater right owner timely requests a hearing, the hearing shall be in accordance with section 42-1701A(1) and (2), Idaho Code, and the rules of procedure promulgated by the director. Following the hearing, the director must issue an order regarding forfeiture that sets forth findings of fact, conclusions of law, and a determination of whether the stockwater right has been forfeited pursuant to section 42-222(2), Idaho Code. The director must issue the order regarding forfeiture no later than forty-five (45) days after completion of the administrative proceeding.
(9) Any order determining that a stockwater right has been forfeited pursuant to subsection (7) or (8) of this section shall have no legal effect except as provided for in subsection (11) of this section. No judicial challenge to an order determining that a stockwater right has been forfeited pursuant subsection (7) or (8) of this section shall be allowed except within the civil action authorized in subsections (10) and (11) of this section.
(10) Within sixty (60) days after issuance of an order by the director determining that a stockwater right has been forfeited, the state of Idaho, by and through the office of the attorney general, must initiate a civil action by electronically filing in the district court for the fifth judicial district, Twin Falls county, the following: a complaint requesting a declaration that the stockwater right is forfeited; certified copies of the order regarding forfeiture; and the record of the administrative proceeding. A copy of the complaint and accompanying documents shall be served on the stockwater right holder who shall be named as the defendant in the action, all parties to the administrative proceeding, and any holder or holders of livestock grazing permits or leases for the place of use of the stockwater right for which the director possesses an address. Any person may move to intervene in the action pursuant to the Idaho rules of civil procedure, but only if such a motion is filed at least twenty-one (21) days before the date set for the hearing under the scheduling order.
(11) After the initiation of the civil action required by this section, the proceedings in the district court shall be like those in a civil action triable without right to a jury, provided that the department of water resources shall not be a party to the civil action but may appear as a witness to explain the basis for the director’s forfeiture determination. In any such proceeding, the director’s order determining forfeiture shall constitute prima facie evidence that the right has been forfeited but shall not change the standard of proof for forfeiture of the water right established by section 42-222(2), Idaho Code.
(12) At the conclusion of the action, the district court shall issue an order determining whether the stockwater right has been forfeited pursuant to section 42-222, Idaho Code. If the district court determines that the stockwater right has been forfeited, the court shall also enter a judgment that the stockwater right has been forfeited.
(13) For purposes of this section, the following terms have the following meanings:
(a) "Stockwater right" means water rights for the watering of livestock meeting the requirements of section 42-1401A(11), Idaho Code.
(b) "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.
(14) This section applies to all stockwater rights except those stockwater rights decreed to the United States based on federal law.
[42-224, added 2020, ch. 253, sec. 1, p. 738; am. 2022, ch. 215, sec. 1, p. 686.]
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.
[42-226, added 1951, ch. 200, sec. 1, p. 423; am. 1953, ch. 182, sec. 1, p. 277; am. 1980, ch. 186, sec. 1, p. 413; am. 1987, ch. 347, sec. 1, p. 742.]
(1) Except as provided in subsection (4) of this section, excavation and opening of wells and the withdrawal of water therefrom for domestic purposes or uses as defined in section 42-111, Idaho Code, shall not be subject to permit requirements under section 42-229, Idaho Code. Rights to ground water for such domestic purposes may be acquired by withdrawal and use.
(2) Wells and withdrawal devices for domestic purposes or uses shall be subject to inspection by the department of water resources and the department of environmental quality.
(3) Well drillers shall be licensed pursuant to the licensing provisions of section 42-238, Idaho Code.
(4) For purposes of new diversions for use within subdivisions, as defined in section 42-111, Idaho Code, where the completed application to develop the subdivision is filed pursuant to chapter 65, title 67, Idaho Code, on or after July 1, 2025, in any area where the director of the department of water resources has issued a moratorium order on the development of new water rights or has designated a critical ground water area or ground water management area, a permit pursuant to section 42-229, Idaho Code, shall be required for the diversion of water for any new domestic purposes or uses, as defined in section 42-111, Idaho Code, other than for in-home uses, as defined in section 42-111, Idaho Code, or watering livestock.
[42-227, added 1951, ch. 200, sec. 2, p. 423; am. 1970, ch. 187, sec. 1, p. 541; am. 1978, ch. 324, sec. 1, p. 819 ; am. 2001, ch. 103, sec. 79, p. 318; am. 2025, ch. 129, sec. 2, p. 664; am. 2026, ch. 2, sec. 2, p. 8.]
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.
[42-228, added 1951, ch. 200, sec. 3, p. 423; am. 1970, ch. 187, sec. 2, p. 541.]
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.
[42-229, added 1951, ch. 200, sec. 4, p. 423; am. 1963, ch. 216, sec. 1, p. 623.]
(a) "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.
(b) "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.
(c) "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.
(d) "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.
(e) "Water right" is the legal right, however acquired, to the use of water for beneficial purposes.
(f) "Operator" is the employee of the well driller who, through his work at the drilling site, causes the well to be drilled.
(g) "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.
[42-230, added 1951, ch. 200, sec. 5, p. 423; am. 1970, ch. 187, sec. 3, p. 541; am. 1971, ch. 149, sec. 1, p. 739; am. 1980, ch. 209, sec. 1, p. 479; am. 1987, ch. 347, sec. 2, p. 743; am. 1990, ch. 319, sec. 3, p. 872.]
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.
[42-231, added 1951, ch. 200, sec. 6, p. 423; am. 1953, ch. 182, sec. 2, p. 277.]
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.
[42-232, added 1978, ch. 366, sec. 3, p. 957.]
(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:
(a) The proposed use will not detrimentally affect existing water rights, including water rights for low temperature geothermal water;
(b) The proposed use will not diminish the temperature of or artesian pressure of the low temperature geothermal aquifer; and
(c) 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.
[42-233, added 1987, ch. 347, sec. 3, p. 744; am. 1988, ch. 311, sec. 1, p. 968; am. 2012, ch. 111, sec. 4, p. 305; am. 2017, ch. 271, sec. 29, p. 709; am. 2019, ch. 51, sec. 1, p. 139.]
"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.
[42-233a, added 1951, ch. 200, sec. 9; am. 1953, ch. 182, sec. 5, p. 277; am. 1963, ch. 216, sec. 2, p. 623; am. 1967, ch. 187, sec. 1, p. 616; am. 1978, ch. 366, sec. 2, p. 956; am. 1995, ch. 286, sec. 1, p. 949; am. 2000, ch. 85, sec. 5, p. 185; am. 2018, ch. 41, sec. 1, p. 103.]
"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.
[42-233b, added 1982, ch. 90, sec. 1, p. 165; am. 2000, ch. 85, sec. 6, p. 187; am. 2016, ch. 297, sec. 1, p. 848.]
(1) The area having a common ground water supply for the eastern Snake plain aquifer, as that term is used in the administration of water rights pursuant to the rules for the conjunctive management of surface and ground water resources, is the aquifer underlying the eastern Snake river plain as described in model calibration report, eastern Snake plain aquifer model version 2.2. of May 2021.
(2) The director of the department of water resources may expand the area having a common ground water supply for the eastern Snake plain aquifer to include tributary basins that affect the eastern Snake river plain aquifer. The director shall not expand the area having a common ground water supply for the eastern Snake plain aquifer to include areas that have been designated as a critical ground water area or a ground water management area and that have approved ground water management plans unless the director determines that the existing ground water management plan for such tributary basin is insufficient to manage the effects of ground water withdrawals on the aquifer from which withdrawals are made and on any other hydraulically connected sources of water, including the eastern Snake plain aquifer.
(3) Before entering an order expanding the eastern Snake plain aquifer area of common ground water supply pursuant to subsection (2) of this section, the director shall, by regular mail, send notice of the proposed action to the owner of each water right proposed to be administered in the tributary basin. The notice shall describe the proposed action to be taken, the reasons therefor, and the time and place of a hearing to be held concerning the proposed action, and shall 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 having general circulation within the tributary basin, with the second publication appearing at least ten (10) days before the date set for the hearing. The hearing shall be held within the tributary basin or at some nearby location convenient to the affected water users. The department shall allow for both oral and written comments to be provided.
(4) The director may issue an order expanding the eastern Snake plain aquifer area of common ground water supply after the hearing. Any person aggrieved by the action of the director may contest such action pursuant to section 42-1701A(3), Idaho Code.
[42-233c, added 2024, ch. 110, sec. 1, p. 483; am. 2025, ch. 211, sec. 18, p. 984.]
(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.
[42-234, added 1978, ch. 366, sec. 1, p. 955; am. 1994, ch. 433, sec. 1, p. 1397; am. 2009, ch. 242, sec. 1, p. 743.]
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.
[42-235, added 1987, ch. 347, sec. 4, p. 745; am. 1990, ch. 164, sec. 1, p. 361; am. 1996, ch. 267, sec. 1, p. 868; am. 1998, ch. 173, sec. 1, p. 596.]
The provisions relating to loss of water rights by nonuse and abandonment, as set forth in section 42-222, shall apply to ground water rights. The provisions of section 42-222, 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.
[42-237, added 1951, ch. 200, sec. 12(14), p. 423; am. 1953, ch. 182, sec. 7, p. 277.]
In the administration and enforcement of this act and in the effectuation of the policy of this state to conserve its ground water resources, the director of the department of water resources in his sole discretion, is empowered:
a. To require all flowing wells to be so capped or equipped with valves that the flow of water can be completely stopped when the wells are not in use.
b. To require both flowing and nonflowing wells to be so constructed and maintained as to prevent the waste of ground waters through leaky wells, casings, pipes, fittings, valves or pumps either above or below the land surface.
c. To prescribe uniform scientific methods to determine water levels in and calculate waters withdrawn from wells.
d. To go upon all lands, both public and private, for the purpose of inspecting wells, pumps, casings, pipes, and fittings, including wells used or claimed to be used for domestic purposes.
e. To order the cessation of use of a well pending the correction of any defect that the director of the department of water resources has ordered corrected.
f. To commence actions to enjoin the illegal opening or excavation of wells or withdrawal or use of water therefrom and to appear and become a party to any action or proceeding pending in any court or administrative agency when it appears to the director of the department of water resources that the determination of such action or proceeding might result in depletion of the ground water resources of the state contrary to the public policy expressed in this act.
g. To supervise and control the exercise and administration of all rights to the use of ground waters and in the exercise of this discretionary power he may initiate administrative proceedings to prohibit or limit the withdrawal of water from any well during any period that he determines that water to fill any water right in said well is not there available. To assist the director of the department of water resources in the administration and enforcement of this act, and in making determinations upon which said orders shall be based, he may establish a ground water pumping level or levels in an area or areas having a common ground water supply as determined by him as hereinafter provided. Water in a well shall not be deemed available to fill a water right therein if withdrawal therefrom of the amount called for by such right would affect, contrary to the declared policy of this act, the present or future use of any prior surface or ground water right or result in the withdrawing of the ground water supply at a rate beyond the reasonably anticipated average rate of future natural recharge. However, the director may allow withdrawal at a rate exceeding the reasonably anticipated rate of future natural recharge if the director finds it is in the public interest and if it satisfies the following criteria:
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.
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.
[42-237a, 1951, ch. 200, sec. 15, as added by 1953, ch. 182, sec. 8, p. 277; am. 1977, ch. 258, sec. 1, p. 757; am. 1987, ch. 347, sec. 5, p. 745; am. 1994, ch. 430, sec. 2, p. 1390; am. 1994, ch. 450, sec. 3, p. 1436.]
Any person dissatisfied with any decision, determination, order or action of the director of the department of water resources 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.
[42-237e, 1951, ch. 200, sec. 19, as added by 1953, ch. 182, sec. 8, p. 277; am. 1980, ch. 238, sec. 8, p. 537; am. 2021, ch. 36, sec. 1, p. 89.]
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.
[42-237f, 1951, ch. 200, sec. 20, as added by 1953, ch. 182, sec. 8, p. 277.]
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.
[42-237h, added 1987, ch. 347, sec. 7, p. 747.]
(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 that 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 may 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:
(a) 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;
(b) Knowledge of the various types of drilling tools and their use;
(c) General knowledge of underground geology and ground water hydrology and their relation to well construction;
(d) Ownership or access to equipment capable of adequately constructing a well;
(e) Knowledge of types of well casing and their use;
(f) 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;
(g) Previous drilling experience; and
(h) 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.
(a) 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.
(b) An operator shall operate drilling equipment only for the driller listed on the operator’s permit.
(c) 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.
(d) The applicant for an operator’s permit shall successfully complete a written or oral examination.
(e) The water resource board may 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:
(i) Knowledge of Idaho water laws and the rules of the water resource board in connection with the drilling of wells;
(ii) Demonstrated previous compliance with well-drilling laws and rules including well construction standards; and
(iii) 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 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 to 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) Violations. 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 ensure 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.
[42-238 as reen. by 1967, ch. 339, sec. 1, p. 977; am. 1970, ch. 187, sec. 4, p. 541; am. 1971, ch. 149, sec. 2, p. 730; am. 1974, ch. 20, sec. 1, p. 533; am. 1980, ch. 238, sec. 9, p. 538; am. 1987, ch. 347, sec. 8, p. 748; am. 1990, ch. 366, sec. 1, p. 999; am. 1993, ch. 216, sec. 33, p. 613; am. 1997, ch. 361, sec. 1, p. 1062; am. 1998, ch. 173, sec. 2, p. 597; am. 2021, ch. 65, sec. 1, p. 197.]
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, 42-238, 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.
[42-238a, 1951, ch. 200, sec. 23, as added by 1953, ch. 182, sec. 10, p. 277; am. 1968 (2nd E.S.), ch. 25, sec. 2, p. 47; am. 1974, ch. 20, sec. 2, p. 533; am. 1987, ch. 158, sec. 3, p. 311; am. 2021, ch. 36, sec. 6, p. 89.]
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 15 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.
[42-239, added 1951, ch. 200, sec. 15(25), p. 423; am. 1953, ch. 182, sec. 11, p. 277.]
(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.
[42-240, added 1998, ch. 424, sec. 2, p. 1340; am. 2003, ch. 298, sec. 4, p. 812.]
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.
[42-241, added 1978, ch. 345, sec. 4, p. 887.]
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.
[42-242, added 1978, ch. 345, sec. 5, p. 887; am. 1990, ch. 319, sec. 4, p. 873.]
In order to allow for the recording of historic uses of the waters of this state, any person using or claiming rights to the use of water for uses other than domestic purposes, which have heretofore been established by diversion and application to a beneficial use shall file a claim of such right with the department of water resources not later than June 30, 1983, or if mailed, shall be postmarked not later than June 30, 1983. Such claim shall be in affidavit form on forms furnished by the department of water resources and shall set forth:
a. The name and post-office address of the claimant.
b. The quantity of water claimed to have been used.
c. The source of the water supply.
d. The location of the point or points of diversion.
e. The nature of the use and the period during each year when the water is used for such purposes.
f. The priority of the right claimed which shall be determined by the date when the water was first applied to a beneficial use provided there has been no period of abandonment or nonuse or forfeiture of the water right since that date.
g. If water is claimed for irrigation, the legal description of the lands irrigated.
h. Such other information as shall be required by the blank form furnished by the department.
Such claim may be accompanied by maps showing the place of use, affidavits of witnesses familiar with the uses claimed, measurements of the water diverted and used, and such other information as the claimant may wish to submit.
If the claim is filed with the department of water resources later than June 30, 1983, or if it is mailed to the department of water resources and the postmark is later than June 30, 1983, the claim shall be classified as follows:
a. If the only use identified on the claim is domestic purposes, then the claim will be considered to be filed in a timely manner.
b. If the use(s) identified on the claim includes other than domestic purposes, then the claim shall be considered to be a late claim, with a unique filing fee as set forth in section 42-221, Idaho Code.
This section shall not apply to any water rights which are based on the authority of a permit or license issued by the department of water resources or one of its predecessors or water rights which have previously been adjudicated by a court having jurisdiction of such matters.
[(42-243) I.C., sec. 42-225a, as added by 1967, ch. 338, sec. 2, p. 974; am. and redesig. 1978, ch. 345, sec. 6, p. 888; am. 1983, ch. 61, sec. 1, p. 141; am. 1985, ch. 226, sec. 2, p. 542; am. 1990, ch. 319, sec. 5, p. 874; am. 1998, ch. 79, sec. 2, p. 284.]
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.
[(42-244) I.C., sec. 42-225b, as added by 1967, ch. 338, sec. 3, p. 974; am. and redesig. 1978, ch. 345, sec. 7, p. 889.]
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.
[42-245, added 1978, ch. 345, sec. 8, p. 889; am. 1988, ch. 152, sec. 1, p. 272; am. 1994, ch. 63, sec. 1, p. 121; am. 2020, ch. 146, sec. 1, p. 447.]
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.
[42-246, added 1978, ch. 345, sec. 9, p. 890.]
(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, shall provide notice to the department of any change in ownership of any part of the water right or of any change in the owner’s mailing address. Notice shall be provided within one hundred twenty (120) days of any change using forms acceptable to the director.
(2) The department may rely on the name and address of the owner of the water right shown in the records of the department when sending notice of any action related to that water right.
(3) 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 provided the requirements of subsections (5) and (6) of this section are met. The fee requirements of subsection (4) 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.
(4) A filing fee of twenty-five dollars ($25.00) per right shall accompany a notice of change of water right ownership, 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. No fee is required for a notice of change of ownership of a claim pending in a water rights adjudication. A notice of change of ownership of all or part of a water right not accompanied by the required filing fee is incomplete and shall be returned without processing to the person who submitted the notice.
(5) A notice of change of water right ownership of all or part of a water right shall be accompanied by deeds, court decrees, or other evidence of conveyance of the water right and how the water right is divided if the change divides the water right among multiple owners.
(6) If the person filing the notice of a change of water right ownership does not own the land identified as the place of use for the water right, the notice shall be accompanied by evidence that written notice of the change of water right ownership has been mailed or hand-delivered to the landowner of record, as identified in the records of the county recorder.
(7) If the department receives the required notice, fee, and satisfactory evidence of conveyance of the water right as required in subsection (5) of this section, and evidence that the notice requirements of subsection (6) of this section, if applicable, have been met, the department shall update the ownership information in the water right records maintained by the department. If any required information is not provided, the department shall return the notice of change of ownership to the person filing the notice.
(8) Any action by the department updating the ownership of a water right in the department’s records or returning the notice of change of ownership to the person filing the notice is not a determination of water right ownership, is not an administrative action subject to challenge under the Idaho administrative procedure act, chapter 52, title 67, Idaho Code, and is not subject to a request for hearing pursuant to section 42-1701A, Idaho Code. Water right ownership disputes arising from a notice of change of water right ownership under this section must be resolved either in a water rights adjudication or in an action to quiet title pursuant to section 6-401, Idaho Code.
(9) 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.
[42-248, added 1996, ch. 149, sec. 1, p. 487; am. 2000, ch. 313, sec. 1, p. 1052; am. 2011, ch. 172, sec. 2, p. 493; am. 2021, ch. 157, sec. 1, p. 433.]
(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.
[42-250, added 2003, ch. 166, sec. 2, p. 471.]
(1) Legislative Findings.
(a) In the absence of storage reservoirs in the Lemhi Basin, the diversion of "high water or flood water" onto irrigated land in the spring developed as a way of holding water underground within the basin, which would later contribute to the flows in the Lemhi River and its tributaries.
(b) The 1982 Lemhi Basin Decree recognized the practice of diverting "high water or flood water" onto irrigated lands. It defined "high water or flood water" as "natural flow of water over and above the amount required to fulfill (1) existing quantified rights as shown in the decree of water rights and (2) any future rights that may be established pursuant to statutory procedures of the state of Idaho." Proposed Findings of Water Rights, In the Matter of the General Determination of the Rights to the Use of the Surface Waters and Tributaries from Whatever Source of the Lemhi River Drainage Basin, Civil No. 4948, Feb. 16, 1982, at 3, paragraph n. The Lemhi Decree included a conclusion of law stating the practice "of diverting so called ‘high waters or flood waters’ in addition to the quantified rights as described in the recommended decree of water rights (and future rights that may be established pursuant to statutory procedures) [is] allowed provided: (a) the waters so diverted are applied to beneficial use. (b) the existing quantified rights (including future appropriations of water) are first satisfied."
(c) Based on the conclusions of law in the Lemhi Basin Decree, many Lemhi Basin irrigators filed claims in the Snake River Basin Adjudication (SRBA) seeking water rights for their historic "high water or flood water" practice.
(d) On January 3, 2012, the SRBA Court affirmed the Special Master’s Report and Recommendation finding that "Idaho case law precludes the high flow claimants from seeking to establish high flow water rights in the SRBA as a matter of law." Memorandum Decision and Order on Challenge at 11, Subcase Nos. 74-15051, In re SRBA Case No. 39576. Although the SRBA Court disallowed the high flow claims, it reaffirmed the Lemhi Basin Decree conclusion of law regarding "high water or flood water" use through its Partial Decree pursuant to I.R.C.P. 54(b) of the Basin 74 High Flow General Provision (Basin 74 General Provision). Basin 74 General Provision provides: "The following general provision shall govern the use of ‘High Flow’ surface water for irrigation use within the Lemhi Basin: The practice of diverting high flows in the Lemhi Basin, in addition to diverting decreed and future water rights that may be established pursuant to statutory procedures of the State of Idaho, is allowed provided (a) the waters so diverted are applied to beneficial use. (b) existing decreed rights and future appropriations of water are first satisfied."
(e) Since the early 1990s Lemhi irrigators, with the assistance of state agencies, have led an effort to protect and enhance salmon runs in the Lemhi River Basin, including but not limited to providing passage flows for salmon, screening diversion works and implementing habitat improvement projects.
(f) The long-term goal of the Lemhi irrigators is to conserve, restore, and enhance sufficient habitat to sustain viable fish populations in the Lemhi River Basin while protecting private property rights and preserving and enhancing the farming and ranching lifestyle and economy of the Lemhi River Basin.
(g) In 2001, the Idaho Legislature enacted section 42-1506, Idaho Code, at the request of the Lemhi Basin irrigators. This statute authorized the Idaho Water Resource Board to appropriate a minimum stream flow in the lower reach of the Lemhi River for the purpose of providing fish passage and for protection of Lemhi water users from enforcement actions under the Endangered Species Act.
(h) Use of high flows under the Basin 74 General Provision is not a protected property interest under Idaho law. Because the SRBA Court disallowed all "high water or flood water" claims, a conflict developed between irrigators who rely on the use of high flows under the Basin 74 General Provision and persons desiring to appropriate high flow for new uses.
(i) The legislature finds (1) that the use of Lemhi River Basin high flow for holding water underground to augment the natural flow of the Lemhi River later in the irrigation season is a beneficial use of water; and (2) that it is in the public interest to protect through the appropriation process the entitlements to divert and use high flows under the Basin 74 General Provision for efficient administration of such uses and to aid in the proper planning for future development of the water resources of the Lemhi River Basin.
(j) The Lemhi Basin stream flow maintenance applications provided for in this section are based upon the historic practice recognized by the Basin 74 High Flow General Provision, and therefore, are not intended to nor shall be construed as establishing a precedent for issuance of any future water rights in the State of Idaho.
(2) Stream Flow Maintenance Applications. Lemhi irrigators who hold irrigation water rights decreed in the SRBA, and claim authority to divert and use Lemhi Basin high flows for stream flow maintenance pursuant to the Basin 74 General Provision may file an application for permit with the department of water resources to convert such use into a protectable water right on or before July 1, 2024. The application shall be upon forms provided by the department. The department shall process the application as provided in section 42-203A, Idaho Code.
(3) Quantity of Right. The quantity of a stream flow maintenance water right shall be limited to the historic high flow use under the Basin 74 General Provision ancillary to irrigation water rights decreed in the SRBA, but not to exceed the ditch capacity of the decreed irrigation water rights on August 25, 2014.
(4) Proof of Beneficial Use. The department may consider as part of its beneficial use examination for licensing of a permit under this section a permit holder’s past historic diversions of high flow under the Basin 74 General Provision.
(5) Comprehensive Settlement. All applications filed under this section shall be subject to the terms and conditions of the Lemhi Basin Comprehensive Settlement Agreement Between the Idaho Water Resource Board, Idaho Department of Fish and Game, Idaho Office of Species, Minerals, and Energy Coordination, and Various Lemhi Water Users, including but not limited to the following conditions:
(a) Regardless of their priority dates, stream flow maintenance water rights shall include a condition requiring them to cease diversion while the McFarland Campground minimum stream flow water right established pursuant to section 42-1506A, Idaho Code, is being exercised.
(b) Regardless of priority date, the water supply legally available to stream flow maintenance water rights created under this section that divert from a common source shall be distributed proportionately among the stream flow maintenance water rights diverting from the common source, except as otherwise provided for in the Lemhi Basin Comprehensive Settlement Agreement Between the Idaho Water Resource Board, Idaho Department of Fish and Game, Idaho Office of Species, Minerals, and Energy Coordination, and Various Lemhi Water Users. For purposes of this section each tributary administered as a separate source pursuant to the SRBA Basin 74 Separate Streams General Provision is a common source. The mainstem Lemhi River and all tributaries in Basin 74 not listed in the SRBA Basin 74 Separate Streams General Provision are a common source.
(6) Notice – How Given – Requirements. To ensure all persons claiming authority to divert or withdraw and use water under the Basin 74 General Provision are notified of the provisions of this section, the department of water resources is directed to give notice of the provisions of this section as follows:
(a) By regular mail upon all persons within Idaho department of water resources Administrative Basin 74 who currently own an irrigation water right decreed in the SRBA a notice in writing of the existence of this section;
(b) By publishing a notice in writing in a prominent and conspicuous place in at least one (1) newspaper of general circulation in Lemhi County, for at least one (1) day a month for three (3) consecutive months;
(c) By posting a written notice, with the cooperation of the Lemhi County commission, in a prominent and conspicuous location in the Lemhi County courthouse;
(d) By providing sufficient number of copies of the notice and declaration to the Lemhi County treasurer for enclosure with each mailing of one (1) or more statements of taxes due issued in 2023; and
(e) By such other means the director of the department in his discretion determines will carry out the purposes of this section.
[42-251, added 2022, ch. 290, sec. 1, p. 921; am. 2026, ch. 66, sec. 10, p. 280.]
Data centers, as that term is defined in section 63-3622VV, Idaho Code, that begin construction on or after July 1, 2026, may not use water for cooling purposes as a consumptive use, unless the water is supplied by a municipal, water district, or water and sewer district water system.
[42-252, added 2026, ch. 291, sec. 2, p. 1212.]
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 (1/2) 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.
[(42-301) 1909, p. 299, sec. 1; reen. C.L., sec. 3265a; C.S., sec. 5584; I.C.A., sec. 41-301.]
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.
[(42-302) 1909, p. 299, part of sec. 2; reen. C.L., sec. 3265b; C.S., sec. 5585; I.C.A., sec. 41-302.]
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.
[(42-303) 1909, p. 299, part of sec. 2; reen. C.L., sec. 3265c; C.S., sec. 5586; I.C.A., sec. 41-303.]
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.
[(42-304) 1909, p. 299, part of sec. 2; reen. C.L., sec. 3265d; C.S., sec. 5587; I.C.A., sec. 41-304; am. 1980, ch. 238, sec. 11, p. 542.]
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.
[(42-310) 1909, p. 299, sec. 6; compiled and reen. C.L., sec. 3265j; C.S., sec. 5593; I.C.A., sec. 41-310.]
(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.
[42-311, added 1986, ch. 313, sec. 7, p. 772; am. 1988, ch. 83, sec. 1, p. 143.]
(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.
[42-350, added 1986, ch. 313, sec. 8, p. 773; am. 1988, ch. 83, sec. 2, p. 144.]
(1) It is unlawful for any person to divert or use water:
(a) From a natural watercourse or from a ground water source without having obtained a valid water right to do so;
(b) Not in conformance with a valid water right; or
(c) 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.
(2) Upon investigation of available information, the director of the department of water resources shall have the discretion to:
(a) 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; or
(b) Proceed with enforcement actions pursuant to section 42-1701C, Idaho Code, in cases of diversions for domestic purposes or uses as defined in section 42-111, Idaho Code; and
(3) Notwithstanding the provisions of subsection (2) of this section, 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.
[42-351, added 1986, ch. 313, sec. 8, p. 774; am. 1988, ch. 83, sec. 3, p. 145; am. 1994, ch. 450, sec. 5, p. 1438; am. 1998, ch. 173, sec. 4, p. 602; am. 2003, ch. 165, sec. 1, p. 467; am. 2025, ch. 129, sec. 3, p. 665.]
(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:
(a) The supply of water available to the state of Idaho;
(b) The current and reasonably anticipated water demands of the state of Idaho;
(c) Whether there are current or reasonably anticipated water shortages within the state of Idaho;
(d) 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;
(e) The supply and sources of water available to the applicant in the state where the applicant intends to use the water; and
(f) 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.
[42-401, added 1990, ch. 141, sec. 3, p. 316; am. 2014, ch. 245, sec. 1, p. 614.]
The application for permit and the permit issued thereon as provided in section 42-401, 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.
[(42-402) 1915, ch. 111, sec. 2, p. 254; reen. C.L., sec. 3265o; C.S., sec. 5596; I.C.A., sec. 41-402.]
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 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.
[(42-403) 1915, ch. 111, sec. 3, p. 254; reen. C.L., sec. 3265p; C.S., sec. 5597; I.C.A., sec. 41-403; am. 1951, ch. 80, sec. 2, p. 149.]
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, 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.
[(42-404) 1915, ch. 111, sec. 4, p. 254; reen. C.L., sec. 3265q; C.S., sec. 5598; I.C.A., sec. 41-404; am. 1951, ch. 80, sec. 3, p. 149.]
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.
[(42-405) 1915, ch. 111, sec. 5, p. 254; reen. C.L., sec. 3265r; C.S., sec. 5599; I.C.A., sec. 41-405.]
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.
[(42-406) 1915, ch. 111, sec. 6, p. 254; compiled and reen. C.L., sec. 3265s; C.S., sec. 5600; I.C.A., sec. 41-406.]
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.
[(42-407) 1915, ch. 111, sec. 7, p. 254; reen. C.L., sec. 3265t; C.S., sec. 5601; I.C.A., sec. 41-407; am. 1980, ch. 238, sec. 13, p. 544.]
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.
[42-501, added 2017, ch. 178, sec. 2, p. 408; am. 2018, ch. 320, sec. 1, p. 747; am. 2020, ch. 253, sec. 2, p. 739.]
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.
[42-502, added 2017, ch. 178, sec. 2, p. 409; am. 2020, ch. 253, sec. 3, p. 740.]
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.
[(42-504) 42-503, added 2017, ch. 178, sec. 2, p. 409; am. and redesig. 2018, ch. 320, sec. 3, p. 749; am. 2020, ch. 253, sec. 5, p. 740.]
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.
[(42-505) 42-504, added 2017, ch. 178, sec. 2, p. 409; am. and redesig. 2018, ch. 320, sec. 4, p. 749.]
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.
[(42-506) 42-505, added 2017, ch. 178, sec. 2, p. 409; am. and redesig. 2018, ch. 320, sec. 5, p. 749.]
Insofar as the provisions of this act are inconsistent with the provisions of any other law, the provisions of this act shall be controlling.
[(42-507) 42-506, added 2017, ch. 178, sec. 2, p. 409; am. and redesig. 2018, ch. 320, sec. 6, p. 749.]
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.
[(42-602) First paragraph: 1915, ch. 34, sec. 4, p. 103; second paragraph: 1903, p. 223, sec. 32; reen. R.C., sec. 3283; am. 1915, ch. 34, sec. 17, p. 112; reen. C.L., sec. 3270; C.S., sec. 5606; I.C.A., sec. 41-502; am. 1992, ch. 339, sec. 2, p. 1015; am. 1994, ch. 450, sec. 1, p. 1435.]
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.
[(42-603) 1915, ch. 34, sec. 8, p. 103; reen. C.L., sec. 3273; C.S., sec. 5607; I.C.A., sec. 41-503; am. 1992, ch. 339, sec. 4, p. 1015.]
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.
[(42-604) 1903, p. 223, sec. 23; am. 1907, p. 532, sec. 2; reen. R.C., sec. 3274; am. 1909, p. 326, sec. 1; am. 1915, ch. 34, sec. 9, p. 103; reen. C.L., sec. 3274; C.S., sec. 5608; am. 1927, ch. 63, sec. 1, p. 78; I.C.A., sec. 41-504; am. 1986, ch. 78, sec. 1, p. 236; am. 1992, ch. 339, sec. 5, p. 1016.]
(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.
[(42-605) 1903, sec. 24, p. 223; reen. R.C., sec. 3275; am. 1909, sec. 1, p. 326; am. 1915, ch. 34, sec. 10, p. 103; C.L., sec. 3275; C.S., sec. 5609; am. 1925, ch. 60, sec. 1, p. 86; am. 1931, ch. 94, sec. 1, p. 160; I.C.A., sec. 41-505; am. 1947, ch. 9, sec. 1, p. 9; am. 1969, ch. 305, sec. 1, p. 913; am. 1973, ch. 262, sec. 1, p. 534; am. 1982, ch. 14, sec. 1, p. 19; am. 1984, ch. 175, sec. 1, p. 421; am. 1987, ch. 112, sec. 1, p. 225; am. 1988, ch. 31, sec. 1, p. 39; am. 1991, ch. 101, sec. 1, p. 225; am. 1992, ch. 339, sec. 6, p. 1017; am. 2006, ch. 146, sec. 1, p. 458; am. 2011, ch. 176, sec. 1, p. 498; am. 2013, ch. 42, sec. 1, p. 87; am. 2013, ch. 327, sec. 1, p. 856; am. 2015, ch. 82, sec. 1, p. 204; am. 2018, ch. 40, sec. 1, p. 100; am. 2020, ch. 52, sec. 1, p. 124.]
(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.
[42-605A, added 1991, ch. 101, sec. 2, p. 227; am. 1992, ch. 339, sec. 7, p. 1019; am. 2020, ch. 52, sec. 2, p. 126.]
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.
[(42-606) 1903, sec. 25, p. 223; reen. R.C., sec. 3276; am. 1915, ch. 34, sec. 11, p. 103; reen. C.L., sec. 3276; C.S., sec. 5610; I.C.A., sec. 41-506; am. 1992, ch. 339, sec. 8, p. 1021; am. 2020, ch. 52, sec. 3, p. 127.]
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.
[(42-607) 1903, sec. 26, p. 223; reen. R.C., sec. 3277; am. 1909, sec. 1, p. 326; am. 1915, ch. 34, sec. 12, p. 103; C.L., sec. 3277; C.S., sec. 5611; am. 1927, ch. 63, sec. 2, p. 78; I.C.A., sec. 41-507; am. 1969, ch. 305, sec. 2, p. 913; am. 1973, ch. 262, sec. 2, p. 534; am. 1992, ch. 339, sec. 9, p. 1021; am. 2020, ch. 52, sec. 4, p. 128.]
(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.
[(42-608) 1903, p. 223, sec. 27; reen. R.C., sec. 3278; am. 1909, p. 326, sec. 1; am. 1915, ch. 34, sec. 13, p. 103; reen. C.L., sec. 3278; C.S., sec. 5612; am. 1927, ch. 63, sec. 3, p. 78; I.C.A., sec. 41-508; am. 1939, ch. 199, sec. 1, p. 378; am. 1991, ch. 101, sec. 3, p. 228; am. 1992, ch. 339, sec. 10, p. 1022; am. 2011, ch. 176, sec. 2, p. 501.]
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.
[(42-609) 1903, p. 223, sec. 28; reen. R.C., sec. 3279; am. 1915, ch. 34, sec. 14, p. 103; reen. C.L., sec. 3279; C.S., sec. 5613; am. 1927, ch. 63, sec. 4, p. 78; I.C.A., sec. 41-509; am. 1980, ch. 277, sec. 1, p. 721; am. 1992, ch. 339, sec. 11, p. 1023.]
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.
[(42-610) 1903, sec. 29, p. 223; am. 1907, sec. 1, p. 482; reen. R.C., sec. 3280; am. 1915, ch. 34, sec. 15, p. 110; reen. C.L., sec. 3280; C.S., sec. 5614; am. 1925, ch. 60, sec. 2, p. 86; am. 1927, ch. 81, sec. 1, p. 99; I.C.A., sec. 41-510; am. 1992, ch. 339, sec. 12, p. 1023; am. 2020, ch. 52, sec. 5, p. 128.]
(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 shall adopt a budget covering the estimated expenses of delivering the water of the district for the succeeding year and shall, by resolution, determine how the moneys composing 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 provided for by this section.
(3) To the extent possible, funding for advisory committee expenses associated with implementing resolutions adopted by the water users for activities 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. Notwithstanding other provisions of this section, if a water delivery organization or water user diverts water pursuant to a valid water right from a natural waterway that is regulated and assessed by one (1) water district, and that water is then conveyed through and rediverted from a different natural waterway pursuant to section 42-105(1), Idaho Code, that is regulated by a second water district, the second water district may, by resolution of the water users, charge a fee instead of an assessment for the water that is rediverted sufficient to pay the costs and expenses for watermaster services for data collection, water measurement, conveyance of water, and recordkeeping directly attributable to the conveyance of the water that is rediverted. A fee charged pursuant to this subsection is not an assessment. A water delivery organization or a water user that is charged a fee is not eligible to vote at an annual water district meeting as set forth in section 42-605, Idaho Code, unless the water delivery organization or water user holds other water rights that are assessed by the water district and voting is based on those assessed water rights.
(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.
(6) At the annual meeting, water users may, by resolution, authorize the water district to charge a fixed fee. The amount of such fee shall be set in the resolution and shall be used exclusively for administrative costs associated with transferring relevant water right documentation to new ownership. The water district shall maintain a record of how such fees were determined.
(7) 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.
[(42-612) C.S., sec. 5615-A, 1st par., added 1927, ch. 39, sec. 1, p. 51; I.C.A., sec. 41-512; am. 1933, ch. 217, sec. 1, p. 462; am. 1980, ch. 139, sec. 1, p. 305; am. 1992, ch. 339, sec. 13, p. 1024; am. 1998, ch. 179, sec. 1, p. 665; am. 2000, ch. 83, sec. 1, p. 174; am. 2014, ch. 65, sec. 1, p. 168; am. 2015, ch. 82, sec. 2, p. 207; am. 2020, ch. 52, sec. 6, p. 129; am. 2021, ch. 107, sec. 1, p. 348; am. 2026, ch. 110, sec. 1, p. 563.]
(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.
[42-613, added 2020, ch. 52, sec. 8, p. 130.]
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.
[42-613A, added 1986, ch. 78, sec. 3, p. 237; am. 1992, ch. 339, sec. 15, p. 1025.]
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.
[(42-616) C.S., sec. 5615-A, 6th par., as added by 1927, ch. 39, sec. 1, p. 51; I.C.A., sec. 41-516; am. 1992, ch. 339, sec. 18, p. 1026.]
(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.
[42-619, added 1989, ch. 286, sec. 2, p. 710; am. 1992, ch. 339, sec. 21, p. 1028; am. 1993, ch. 387, sec. 11, p. 1426; am. 1996, ch. 322, sec. 36, p. 1064; am. 2011, ch. 176, sec. 4, p. 502; am. 2020, ch. 52, sec. 12, p. 131; am. 2021, ch. 321, sec. 33, p. 974.]
(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:
(a) 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;
(b) 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
(c) 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.
[(42-701) 1899, p. 223, sec. 31; reen. R.C., sec. 3282; am. 1913, ch. 68, p. 305; am. 1915, ch. 34, sec. 16, p. 111; am. 1917, ch. 53, part of sec. 1, p. 122; reen. C.L., sec. 3282; C.S., sec. 5616; am. 1927, ch. 69, sec. 2, p. 85; I.C.A., sec. 41-601; am. 1994, ch. 430, sec. 1, p. 1388; am. 1995, ch. 291, sec. 1, p. 1014; am. 1996, ch. 298, sec. 2, p. 978; am. 1997, ch. 374, sec. 1, p. 1193; am. 1998, ch. 173, sec. 6, p. 604.]
Any person, firm or corporation using the channel of any stream or streams or any tributary of such stream or streams in this state as an impounding reservoir shall place therein at a point above and as near as practicable to the backwater of such reservoir such system or device as the department of water resources may require for measuring the flow of water at such point and in accordance with plans and specifications which shall be furnished by the department.
[(42-702) 1917, ch. 53, part of sec. 3, p. 124; reen. C.L., sec. 3282d; C.S., sec. 5620; I.C.A., sec. 41-602.]
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.
[(42-703) 1917, ch. 53, part of sec. 3, p. 124; reen. C.L., sec. 3282e; C.S., sec. 5621; I.C.A., sec. 41-603.]
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.
[42-705, added 1995, ch. 291, sec. 3, p. 1016.]
(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.
[42-706, added 1995, ch. 291, sec. 3, p. 1016; am. 1996, ch. 298, sec. 3, p. 980.]
(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:
(a) 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.
[42-707, added 1995, ch. 291, sec. 3, p. 1017; am. 1998, ch. 44, sec. 1, p. 189.]
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.
[42-708, added 1995, ch. 291, sec. 3, p. 1020.]
(1) It shall be the duty of the district hydrographer to:
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
[42-709, added 1995, ch. 291, sec. 3, p. 1020.]
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.
[42-710, added 1995, ch. 291, sec. 3, p. 1021; am. 1998, ch. 44, sec. 2, p. 192.]
(1) District hydrographers shall prepare an accounting of all expenses of the district for the year. The accounting shall show:
(a) 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.
(b) 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.
(c) 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.
(d) The cost to the district for all real or personal property, equipment or facilities acquired, and a description and the cost of each.
The accounting shall be certified by the district hydrographer and the chairman of the advisory committee.
(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:
(a) 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
(b) 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.
(c) 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.
[42-711, added 1995, ch. 291, sec. 3, p. 1021; am. 2001, ch. 169, sec. 1, p. 581.]
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.
[42-712, added 1995, ch. 291, sec. 3, p. 1022.]
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.
[42-713, added 1995, ch. 291, sec. 3, p. 1022.]
(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.
[42-714, added 1995, ch. 291, sec. 3, p. 1023.]
(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.
[42-715, added 1995, ch. 291, sec. 3, p. 1023.]
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.
[(42-801) 1909, p. 150, sec. 1; reen. C.L., sec. 3282h; C.S., sec. 5624; I.C.A., sec. 41-701; am. 1980, ch. 277, sec. 2, p. 721.]
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.
[(42-802) 1909, p. 150, sec. 2; reen. C.L., sec. 3282i; C.S., sec. 5625; am. 1921, ch. 133, sec. 1, p. 320; I.C.A., sec. 41-702.]
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 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.
[(42-901) 1899, p. 380, sec. 17; reen. R.C., sec. 3284; am. 1909, p. 104, sec. 1; reen. C.L., sec. 3284; C.S., sec. 5626; I.C.A., sec. 41-801.]
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.
[(42-902) 1881, p. 275; R.S., sec. 3205; am. R.C. & C.L., sec. 3285; C.S., sec. 5627; I.C.A., sec. 41-802.]
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.
[(42-903) 1897, p. 127, sec. 2; compiled R.C. & C.L., sec. 3286; C.S., sec. 5628; I.C.A., sec. 41-803.]
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.
[(42-904) 1901, p. 191, sec. 9a; reen. R.C. & C.L., sec. 3287; C.S., sec. 5629; I.C.A., sec. 41-804.]
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.
[(42-905) 1895, p. 174, part of sec. 17; reen. R.C. & C.L., sec. 3288; C.S., sec. 5630; I.C.A., sec. 41-805.]
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.
[(42-906) 1895, p. 174, part of sec. 17; reen. R.C., sec. 3288; reen. C.L., sec. 3288a; C.S., sec. 5631; I.C.A., sec. 41-806.]
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, 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.
[(42-907) 1895, p. 174, part of sec. 17; reen. R.C., sec. 3288; reen. C.L., sec. 3288b; C.S., sec. 5632; I.C.A., sec. 41-807.]
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, the person to be selected by such parties on or before April first of each year, as provided in section 42-907, 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.
[(42-908) 1909, p. 108, sec. 1; reen. C.L., sec. 3288c; C.S., sec. 5633; I.C.A., sec. 41-808.]
(1) If two (2) or more parties taking water from any main ditch, canal, other conduit, or reservoir at the same point to be conveyed to their respective premises for any distance, through the same distributing lateral, ditch, or other conduit do not select a manager for said distributing lateral, ditch, or other conduit 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 distributing lateral, ditch, or other conduit who shall have and exercise all the powers and perform all of the duties of a manager of the distributing lateral, ditch, or other conduit as provided in section 42-910, Idaho Code; provided, however, if an irrigation district, canal company, or other irrigation entity is the owner of the main ditch, canal, other conduit, or reservoir, then the board of directors of such district, canal company, or other irrigation entity may, upon such demand, make such appointment.
(2) 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, however, if an irrigation district, canal company, or other irrigation entity is the owner of the main ditch, canal, other conduit, or reservoir, the board of directors of such district, canal company, or other irrigation entity 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, canal company, or other irrigation entity shall prorate the amount of such compensation among the several parties taking water through such distributing lateral, ditch, or other conduit on 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 any such parties, no 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 any such parties fail or refuse at such time to remit to said secretary, then such manager may collect as provided in this section.
[(42-909) C.S., sec. 5633-A, added 1925, ch. 99, sec. 1, p. 144; am. 1929, ch. 45, sec. 1, p. 57; am. 1931, ch. 62, sec. 1, p. 105; I.C.A., sec. 41-809; am. 2025, ch. 38, sec. 1, p. 176.]
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 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 (3) 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.
In the event such water user or water users shall not furnish his or their respective share of such labor, material or money within three (3) days after notice so to do, as hereinabove provided, then said manager may, if he elects, notify the association or corporation delivering water into said distributing lateral of the failure, neglect or refusal of said water users or any of them to furnish his or their respective share of such labor, material or money for the proper repair and maintenance of such lateral or for the furnishing and installation of measuring weirs, head-gates and checks, and upon receipt of such notice said association or corporation may, if it chooses to do so, proceed to furnish all labor, material and money necessary for the proper repair and maintenance of such lateral and for the furnishing and installation of measuring weirs, head-gates and checks, or it may, if it chooses so to do, proceed to repair and maintain said laterals and furnish and install such measuring weirs, head-gates and checks as it shall deem necessary or proper for the distribution of water among the several water users. The cost of such repair and maintenance and the cost of furnishing and installing such measuring devices, head-gates, and checks shall be apportioned among the several water users on the basis of benefits derived therefrom by said water users, and the said association or corporation furnishing said funds or doing the aforesaid things or any of them shall within thirty days after completion thereof give each of such water users written notice of the amount or amounts to be paid by him and demand payment thereof. Should the water users or any of them desire to contest the assessment and apportionment made by such association or corporation, appeal may be taken from such assessment and apportionment to the district court in the county where the principal office of said association or corporation is located within ten (10) days after receipt of said notice and demand for payment, in the same manner as in the case of appeals from the boards of county commissioners. In case of appeal any sum or sums determined by said district court to be due, or in the event no appeal is taken then any sum or sums determined by such association or corporation to be due from any water users, shall be paid by such water user within ninety (90) days and the said association or corporation may refuse to deliver any water to any such water user until the amount due shall have been paid in full.
[(42-910) 1909, p. 108, sec. 2; reen. C.L., sec. 3288d; C.S., sec. 5634; I.C.A., sec. 41-810; am. 1939, ch. 213, sec. 1, p. 435.]
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.
[(42-911) 1909, p. 108, sec. 3; reen. C.L., sec. 3288e; C.S., sec. 5635; I.C.A., sec. 41-811.]
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.
[(42-912) 1899, p. 380, sec. 19; reen. R.C. & C.L., sec. 3289; C.S., sec. 5636; I.C.A., sec. 41-812.]
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.
[(42-913) 1899, p. 380, sec. 20; reen. R.C. & C.L., sec. 3290; C.S., sec. 5637; I.C.A., sec. 41-813.]
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.
[(42-914) 1895, p. 174, sec. 14; reen. R.C. & C.L., sec. 3291; C.S., sec. 5638; I.C.A., sec. 41-814.]
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.
[(42-915) 1895, p. 174, sec. 16; reen. R.C. & C.L., sec. 3292; C.S.., sec. 5639; I.C.A., sec. 41-815.]
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.
[(42-916) 1881, p. 273; R.S., sec. 3190; reen. R.C. & C.L., sec. 3293; C.S., sec. 5640; I.C.A., sec. 41-816.]
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.
[(42-1001) 1899, p. 380, sec. 26; reen. R.C. & C.L., sec. 3294; C.S., sec. 5641; I.C.A., sec. 41-901.]
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.
[(42-1002) 1899, p. 380, sec. 27; reen. R.C. & C.L., sec. 3295; C.S., sec. 5642; I.C.A., sec. 41-902.]
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.
[(42-1003) 1899, p. 380, sec. 28; reen. R.C. & C.L., sec. 3296; C.S., sec. 5643; I.C.A., sec. 41-903]
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.
[(42-1004) 1899, p. 380, sec. 29; am. 1905, p. 3, sec. 1; reen. R.C. & C.L., sec. 3297; C.S., sec. 5644; I.C.A., sec. 41-904.]
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.
[(42-1005) 1899, p. 380, sec. 30; reen. R.C. & C.L., sec. 3298; C.S., sec. 5645; I.C.A., sec. 41-905.]
(1) Owners or claimants to land that do not have sufficient length of frontage on a stream to afford the requisite fall for a ditch, canal, lateral, drain, or other conduit on their own premises for the proper irrigation or drainage 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 a ditch, canal, lateral, drain, or conduit to convey water to the place of use for the purposes of irrigation or to provide drainage of irrigated land.
(2) The right-of-way for a ditch, canal, lateral, drain, or other conduit shall include but is not limited to the reasonable exercise of the following rights:
(a) The right to enter the land across which the right-of-way extends for the purposes of accessing, inspecting, operating, cleaning, maintaining, and repairing the ditch, canal, lateral, drain, conduit, embankments, and irrigation structures and to occupy such width of the land along the ditch, canal, lateral, drain, conduit, and embankments as is necessary to properly perform such work with personnel and with such equipment as is commonly used or is reasonably adapted to that work.
(b) The right to remove from the ditch, canal, lateral, drain, conduit, embankments, and irrigation structures the debris, soil, vegetation, and other material the ditch, canal, lateral, drain, or conduit owner or operator reasonably deems necessary to properly access, inspect, operate, clean, maintain, and repair them. The owner or operator has the right and discretion to transport the material from the right-of-way, to utilize the material for reconstruction, repair, or maintenance of the ditch, canal, lateral, drain, conduit, embankments, irrigation structures, and related roads and access areas, and to deposit and leave the material within the right-of-way, provided that the deposits occupy no greater width of land along the ditch, canal, lateral, drain, conduit, and embankments than is reasonably necessary.
(c) The right to occupy the right-of-way during any season of the year to perform the work of operating, cleaning, maintaining, and repairing the ditch, canal, lateral, drain, conduit, embankments, and irrigation structures without prior notice to the owner or occupant of the land across which the right-of-way extends.
(d) The right to construct, install, modify, maintain, or relocate any structure, headgate, siphon, measuring device, road, fence, gate, or other appurtenance within the right-of-way that facilitates the delivery or drainage of water or is used to access, protect, inspect, operate, clean, maintain, or repair the ditch, canal, lateral, drain, or other conduit.
(e) The owner or operator of the ditch, canal, lateral, drain, 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.
(f) A servient estate owner’s permission shall not be required to exercise the rights described in this section.
(3) Any servient estate owner shall be deemed to have notice that the owner of the ditch, canal, lateral, drain, or conduit has the right-of-way and all incidental rights confirmed or granted by this section if:
(a) The servient estate owner has actual or constructive knowledge of the ditch, canal, lateral, drain, or conduit; or
(b) The ditch, canal, lateral, drain, or conduit or any feature thereof is visible or reasonably discoverable.
(4) Rights-of-way provided by this section are essential for the operations of the ditches, canals, laterals, drains, 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. Such written permission shall not be unreasonably withheld.
(5) 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.
(a) The person or entity that caused or permitted the encroachment shall perform such removal, modification, repair, or restoration within a reasonable time after request from the owner or operator of the easement or right-of-way or immediately upon such request in the event of reduced delivery or drainage of water, property damage, safety risk, or other emergency. What constitutes a reasonable time to respond to the request depends on the circumstances affecting the use, operation, maintenance, and repair of the ditch, canal, lateral, drain, or conduit and associated easement or right-of-way.
(b) If the person or entity that caused or permitted the encroachment fails to timely perform the requested actions, or in the event of reduced delivery or drainage of water, property damage, safety risk, or other emergency, the owner or operator of the easement or right-of-way may proceed to perform such actions at the expense of the person or entity causing or permitting the encroachment, as long as no work is performed on any municipal or public utility line.
(6) Any person or entity that causes or permits an encroachment shall be responsible for its use, operation, maintenance, repair, and replacement to prevent unreasonable or material interference with the ditch, canal, lateral, drain, or conduit and the associated easement or right-of-way and shall be liable for all damages that may accrue therefrom.
(7) 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.
(8) This section shall apply to ditches, canals, laterals, drains, conduits, and embankments existing on the effective date of this act, as well as to ditches, canals, laterals, drains, conduits, and embankments constructed or existing after such effective date.
[(42-1102) 1881, p. 269; R.S., sec. 3181; reen. R.C. & C.L., sec. 3300; C.S., sec. 5647; I.C.A., sec. 42-1002; am. 1996, ch. 187, sec. 1, p. 594; am. 2004, ch. 179, sec. 1, p. 562; am. 2019, ch. 158, sec. 1, p. 511; am. 2019, ch. 183, sec. 1, p. 590; am. 2021, ch. 250, sec. 2, p. 778; am. 2024, ch. 93, sec. 1, p. 432; am. 2026, ch. 109, sec. 1, p. 557.]
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, lateral, drain, conduit or other works for the diversion or carrying of water for any beneficial use or to provide drainage; 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.
[(42-1104) 1899, p. 380, sec. 13; reen. R.C. & C.L., sec. 3302; C.S., sec. 5649; I.C.A., sec. 41-1004; am. 2024, ch. 93, sec. 3, p. 434.]
A water right owner has the right to install, operate, and maintain diversion works at the authorized point of diversion in any of the waters of the state described in section 42-101, Idaho Code, for the purpose of diverting and conveying water to the place of use in accordance with the water right. A right-of-way over and across the lands of others, for conducting said waters, may be acquired in the manner prescribed in section 42-1106, Idaho Code.
[42-1105, added 2024, ch. 93, sec. 5, p. 434.]
In case of the refusal of the owners or claimants of any lands, through which any ditch, canal, lateral, drain, 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.
[(42-1106) 1899, p. 380, sec. 14; reen. R.C. & C.L., sec. 3304; C.S., sec. 5651; I.C.A., sec. 41-1006; am. 2024, ch. 93, sec. 6, p. 435.]
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.
[(42-1107) 1911, ch. 125, sec. 1, p. 413; reen. C.L., sec. 3304a; C.S., sec. 5652; I.C.A., sec. 41-1007.]
As used in this chapter, "irrigation conduit" means a ditch, canal, lateral, drain, pipeline, or other surface channel or buried conduit that is used to convey water to the place of use for the purposes of irrigation or to provide drainage of irrigated land.
[42-1201, added 2026, ch. 109, sec. 2, p. 559.]
(1) Every person or entity owning or controlling any irrigation conduit for the purpose of irrigation shall:
(a) During the time the irrigation conduit is operated to deliver water for irrigation, keep a flow of water therein sufficient to meet the needs of the persons or entities entitled to the use of water therefrom. Such duty may be adjusted when there is insufficient water in the public streams or other natural water sources or when the board of directors or governing body of an entity furnishing water deems it in the best interests of that entity to reduce the water supply or dates of availability;
(b) Construct the necessary outlets in the irrigation conduit for proper delivery of water to persons and entities having rights to the use of the water;
(c) Not permit a greater quantity of water to be turned into the irrigation conduit than it will contain or than can be used for beneficial or useful purposes to prevent the wasting and useless discharge and running away of water; and
(d) Carefully keep and maintain the irrigation conduit in good repair and condition so as not to damage or in any way injure the property or premises of others and to prevent the water conveyed therein from wasting during the irrigation season.
(2) The duties to operate and maintain an irrigation conduit, 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 owners or operators thereof. The owners, constructors, or operators of irrigation conduits, while responsible for their own acts or omissions, shall not be liable for damage or injury caused by:
(a) The diversion or discharge of water into a irrigation conduit by a third party without the permission of the owner or operator thereof;
(b) Any other act or omission of a third party, other than an employee or agent of the owner or operator of the irrigation conduit; or
(c) An act of God, including but not limited to fire, earthquake, storm, or similar natural phenomenon.
(3) The provisions of this section shall not be construed to impair any defense that an owner, constructor, or operator of a irrigation conduit may assert in a civil action.
[(42-1202) 42-1201, added 1899, sec. 15, p. 380; reen. R.C. & C.L., sec. 3306; C.S., sec. 5654; I.C.A., sec. 41-1101; am. 1989, ch. 236, sec. 1, p. 573; am. 2024, ch. 93, sec. 8, p. 435; am. and redesig. 2026, ch. 109, sec. 3, p. 559.]
(1) Where any irrigation conduit has heretofore been, or may hereafter be, constructed across or beneath the lands of another:
(a) The servient estate owner may, at his own expense, relocate or pipe the irrigation conduit to any other part of his land, but such change must be made in such a manner as not to impede the flow of the water therein, or to otherwise injure any person or entity using or interested in such conduit; or
(b) The servient estate owner may, at his own expense, place the irrigation conduit in a pipe, culvert, or other conduit on his land, provided that the pipe, culvert, or other conduit installation and backfill reasonably meet standard specifications for such materials and construction, as set forth in the Idaho standards for public works construction or other standards recognized by the city or county in which the burying is to be done.
(2) The right and responsibility for operation and maintenance of an irrigation conduit that is relocated or placed in conduit by the servient estate owner shall remain with the owner of the irrigation conduit, or drain, but the servient estate owner, his heirs, executors, administrators, successors, and assigns shall be responsible for any increased operation and maintenance costs, including rehabilitation and replacement, unless otherwise agreed in writing with the owner of the irrigation conduit.
(3)(a) The written permission of the owner or operator of an irrigation conduit must first be obtained before it is relocated or placed in a pipe, culvert, or other conduit by the owner of the servient estate, in order to ensure that:
(i) Such change will not impede the flow of water therein, unreasonably or materially interfere with access, use, operation, maintenance, cleaning, or repair, or otherwise injure any person or entity using such conduit;
(ii) Adequate provision is made for the payment of any increased operation and maintenance costs, including rehabilitation and replacement, unless otherwise agreed in writing with the owner or operator of the irrigation conduit; and
(iii) Adequate provision is made documenting, protecting, and perpetuating the irrigation conduit right-of-way pursuant to section 42-1102, Idaho Code.
(b) Such written permission shall not be unreasonably withheld.
(4) An irrigation conduit that is relocated or placed in a pipe, culvert, or other conduit without such express written permission shall be removed, modified, repaired, or restored to its prior location or condition, as directed by the owner thereof, at the expense of the person or entity that caused or permitted such relocation or placement in pipe, culvert, or other conduit, in the event it unreasonably or materially interferes with the use and enjoyment of the easement or right-of-way.
(a) The person or entity that caused or permitted the relocation or the placement in pipe, culvert, or other conduit shall perform such removal, modification, repair, or restoration within a reasonable time after request from the owner or operator of the easement or right-of-way, or immediately upon such request in the event of reduced delivery or drainage of water, property damage, safety risk, or other emergency. What constitutes a reasonable time to respond to the request depends on circumstances affecting the use, operation, maintenance, and repair of the irrigation conduit and associated easement or right-of-way.
(b) If the person or entity that caused or permitted the relocation or the placement in pipe, culvert, or other conduit fails to timely perform the requested actions, or in the event of reduced delivery or drainage of water, property damage, safety risk, or other emergency, the owner or operator of the easement or right-of-way may proceed to perform such actions at the expense of the person or entity that caused or permitted the relocation or piping.
(5) An irrigation conduit that has been constructed across or beneath the lands of another may be relocated or piped by its owner or operator as follows:
(a) The irrigation conduit’s owner or operator shall obtain the servient estate owner’s written permission prior to relocating or piping the conduit outside of the easement or right-of-way.
(b) The irrigation conduit’s owner or operator shall have the right to relocate or pipe an irrigation conduit within the easement or right-of-way without obtaining the servient estate owner’s permission.
(c) The owner or operator of an open surface channel used for irrigation or drainage shall have the right to place it in a buried conduit within the easement or right-of-way, without the permission of the servient estate owner, in accordance with standard specifications for pipe, materials, installation, and backfill, as set forth in the Idaho standards for public works construction or other standards recognized by the city or county in which the burying is to be done, and as long as the construction is accomplished in a manner that the surface of the servient estate outside the easement or right-of-way and the owner’s use thereof is not disrupted and is restored to its prior condition as expeditiously as possible, but no longer than thirty (30) days after the completion of construction.
(d) The owner of the servient estate may request that the conduit be installed along a different route than the existing route of the irrigation conduit, provided that:
(i) The conditions of subsection (3) of this section are satisfied; and
(ii) The servient estate owner, his heirs, executors, administrators, successors, and assigns shall be responsible for any increased construction or future maintenance costs necessitated by said relocation. Maintenance of the buried conduit shall be the responsibility of the conduit owner or operator.
(6) This section shall apply to irrigation conduits existing on or established after July 1, 2024.
[(42-1203) 42-1207, added 1907, sec. 4, p. 237,; reen. R.C. & C.L., sec. 3311a; C.S., sec. 5660; I.C.A., sec. 41-1107; am. 1994, ch. 151, sec. 1, p. 345; am. 2002, ch. 115, sec. 4, p. 329; am. 2005, ch. 331, sec. 1, p. 1038; am. 2011, ch. 177, sec. 1, p. 504; am. 2019, ch. 158, sec. 4, p. 513; am. 2024, ch. 93, sec. 14, p. 436.; am. and redesig. 2026, ch. 109, sec. 4, p. 560.]
(1) The easements, rights-of-way, or real property owned by irrigation districts, Carey act operating companies, nonprofit irrigation entities, lateral ditch associations, and drainage districts are not subject to adverse possession.
(2) No person shall prevent free access of authorized personnel on such easements, rights-of-way, or other real property, or construct any obstruction on such easements, rights-of-way, or other real property in an effort to adversely possess said easement, right-of-way, or other real property.
[(42-1204) 42-1208, added 1981, ch. 344, sec. 1, p. 714; am. 2004, ch. 179, sec. 2, p. 563; am. 2021, ch. 112, sec. 1, p. 354; am. and redesig. 2026, ch. 109, sec. 5, p. 562.]
(1) 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 and the incidental rights and protections described in sections 42-1102 and 42-1203, Idaho Code. Such written permission shall not be unreasonably withheld.
(2) Encroachments of any kind placed in such easement or right-of-way, without such express written permission, shall be removed or modified, and the irrigation conduit, easement, or right-of-way shall be repaired or restored 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.
(a) The person or entity that caused or permitted the encroachment shall perform such removal, modification, repair, or restoration within a reasonable time after request from the owner or operator of the easement or right-of-way, or immediately upon such request in the event of reduced delivery or drainage of water, property damage, safety risk, or other emergency. What constitutes a reasonable time to respond to the request depends on circumstances affecting the use, operation, maintenance, and repair of the irrigation conduit and associated easement or right-of-way.
(b) If the person or entity that caused or permitted the encroachment fails to timely perform the requested actions, or in the event of reduced delivery or drainage of water, property damage, safety risk, or other emergency, the owner or operator of the easement or right-of-way may proceed to perform such actions at the expense of the person or entity that caused or permitted the encroachment, as long as no work is performed on any municipal or public utility line.
(3) Any person or entity that causes or permits an encroachment shall be responsible for its use, operation, maintenance, repair, and replacement to prevent unreasonable or material interference with an irrigation conduit and the associated easement or right-of-way and shall be liable for all damages that may accrue therefrom.
(4) 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.
[(42-1205) 42-1209, added 2004, ch. 179, sec. 3, p. 563; am. 2019, ch. 158, sec. 5, p. 514; am. 2019, ch. 183, sec. 3, p. 592; am. 2024, ch. 93, sec. 15, p. 438; am. and redesig. 2026, ch. 109, sec. 6, p. 562.]
(1) Where any ditch, canal, lateral, drain, or buried irrigation conduit has heretofore been, or may hereafter be, constructed across or beneath the lands of another:
(a) The servient estate owner may, at his own expense, relocate or pipe the ditch, canal, lateral, drain, or buried irrigation conduit to any other part of his land, but such change must be made in such a manner as not to impede the flow of the water therein, or to otherwise injure any person or entity using or interested in such ditch, canal, lateral, drain, or buried irrigation conduit.; or
(b) The servient estate owner may, at his own expense, place the ditch, canal, lateral, or drain in a pipe, culvert, or other conduit on his land, provided that the pipe, culvert, or other conduit installation and backfill reasonably meet standard specifications for such materials and construction, as set forth in the Idaho standards for public works construction or other standards recognized by the city or county in which the burying is to be done.
(2) The right and responsibility for operation and maintenance of a ditch, canal, lateral, drain, or buried irrigation conduit that is relocated or placed in conduit by the servient estate owner shall remain with the owner of the ditch, canal, lateral, or drain, but the servient estate owner, his heirs, executors, administrators, successors, and assigns shall be responsible for any increased operation and maintenance costs, including rehabilitation and replacement, unless otherwise agreed in writing with the owner of the ditch, canal, lateral, drain, or buried irrigation conduit.
(3)(a) The written permission of the owner or operator of a ditch, canal, lateral, drain, or buried irrigation conduit must first be obtained before it is relocated or placed in a pipe, culvert, or other conduit by the owner of the servient estate, in order to ensure that:
(i) Such change will not impede the flow of water therein, unreasonably or materially interfere with access, use, operation, maintenance, cleaning, or repair, or otherwise injure any person or entity using such ditch, canal, lateral, drain, or buried irrigation conduit;
(ii) Adequate provision is made for the payment of any increased operation and maintenance costs, including rehabilitation and replacement, unless otherwise agreed in writing with the owner or operator of the ditch, canal, lateral, drain, or buried irrigation conduit; and
(iii) Adequate provision is made documenting, protecting, and perpetuating the ditch, canal, lateral, drain, or buried irrigation conduit right-of-way pursuant to section 42-1102, Idaho Code.
(b) Such written permission shall not be unreasonably withheld.
(4) A ditch, canal, lateral, drain, or buried irrigation conduit that is relocated or placed in a pipe, culvert, or other conduit without such express written permission shall be removed, modified, repaired, or restored to its prior location or condition, as directed by the owner thereof, at the expense of the person or entity that caused or permitted such relocation or placement in pipe, culvert, or other conduit, in the event it unreasonably or materially interferes with the use and enjoyment of the easement or right-of-way.
(a) The person or entity that caused or permitted the relocation or the placement in pipe, culvert, or other conduit shall perform such removal, modification, repair, or restoration within a reasonable time after request from the owner or operator of the easement or right-of-way, or immediately upon such request in the event of reduced delivery or drainage of water, property damage, safety risk, or other emergency. What constitutes a reasonable time to respond to the request depends on circumstances affecting the use, operation, maintenance, and repair of the ditch, canal, lateral drain, or buried irrigation conduit and associated easement or right-of-way.
(b) If the person or entity that caused or permitted the relocation or the placement in pipe, culvert, or other conduit fails to timely perform the requested actions, or in the event of reduced delivery or drainage of water, property damage, safety risk, or other emergency, the owner or operator of the easement or right-of-way may proceed to perform such actions at the expense of the person or entity that caused or permitted the relocation or piping.
(5) The owner or operator of a ditch, canal, lateral, drain, or buried irrigation conduit that has been constructed across or beneath the lands of another may relocate or pipe the facility.
(a) Prior to relocating a ditch, canal, lateral, drain, or buried irrigation conduit, the written permission of the owner of the servient estate shall be obtained.
(b) The owner or operator of the ditch, canal, lateral, drain, or buried irrigation conduit shall have the right to place it in a buried conduit within the easement or right-of-way, without the permission of the servient estate owner, in accordance with standard specifications for pipe, materials, installation, and backfill, as set forth in the Idaho standards for public works construction or other standards recognized by the city or county in which the burying is to be done, and as long as the construction is accomplished in a manner that the surface of the servient estate outside the easement or right-of-way and the owner’s use thereof is not disrupted and is restored to its prior condition as expeditiously as possible, but no longer than thirty (30) days after the completion of construction.
(c) The owner of the servient estate may request that the conduit be installed along a different route than the existing route of the ditch, canal, lateral, or drain, provided that:
(i) The conditions of subsection (3) of this section are satisfied; and
(ii) The servient estate owner, his heirs, executors, administrators, successors, and assigns shall be responsible for any increased construction or future maintenance costs necessitated by said relocation. Maintenance of the buried conduit shall be the responsibility of the conduit owner or operator.
(6) This section shall apply to ditches, canals, laterals, drains, and buried irrigation conduits existing on or established after July 1, 2024.
[(42-1207) 1907, p. 237, sec. 4; reen. R.C. & C.L., sec. 3311a; C.S., sec. 5660; I.C.A., sec. 41-1107; am. 1994, ch. 151, sec. 1, p. 345; am. 2002, ch. 115, sec. 4, p. 329; am. 2005, ch. 331, sec. 1, p. 1038; am. 2011, ch. 177, sec. 1, p. 504; am. 2019, ch. 158, sec. 4, p. 513; am. 2024, ch. 93, sec. 14, p. 436.]
The easements, rights-of-way, or real property owned by irrigation districts, Carey act operating companies, nonprofit irrigation entities, lateral ditch associations, and drainage districts are not subject to adverse possession. No person shall prevent free access of authorized personnel on such easements, rights-of-way, or other real property, or construct any obstruction on such easements, rights-of-way, or other real property in an effort to adversely possess said easement, right-of-way, or other real property.
[42-1208, added 1981, ch. 344, sec. 1, p. 714; am. 2004, ch. 179, sec. 2, p. 563; am. 2021, ch. 112, sec. 1, p. 354.]
(1) 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 and the incidental rights and protections described in sections 42-1102 and 42-1207, Idaho Code. Such written permission shall not be unreasonably withheld.
(2) Encroachments of any kind placed in such easement or right-of-way, without such express written permission, shall be removed or modified, and the ditch, canal, lateral, drain, conduit, easement, or right-of-way shall be repaired or restored 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.
(a) The person or entity that caused or permitted the encroachment shall perform such removal, modification, repair, or restoration within a reasonable time after request from the owner or operator of the easement or right-of-way, or immediately upon such request in the event of reduced delivery or drainage of water, property damage, safety risk, or other emergency. What constitutes a reasonable time to respond to the request depends on circumstances affecting the use, operation, maintenance, and repair of the ditch, canal, lateral, drain, or buried irrigation conduit and associated easement or right-of-way.
(b) If the person or entity that caused or permitted the encroachment fails to timely perform the requested actions, or in the event of reduced delivery or drainage of water, property damage, safety risk, or other emergency, the owner or operator of the easement or right-of-way may proceed to perform such actions at the expense of the person or entity that caused or permitted the encroachment, as long as no work is performed on any municipal or public utility line.
(3) Any person or entity that causes or permits an encroachment shall be responsible for its use, operation, maintenance, repair, and replacement to prevent unreasonable or material interference with a ditch, canal, lateral, drain, or conduit and the associated easement or right-of-way and shall be liable for all damages that may accrue therefrom.
(4) 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.
[42-1209, added 2004, ch. 179, sec. 3, p. 563; am. 2019, ch. 158, sec. 5, p. 514; am. 2019, ch. 183, sec. 3, p. 592; am. 2024, ch. 93, sec. 15, p. 438.]
(1) No person shall, without the consent of a water delivery organization, as that term is defined in section 42-1301, Idaho Code, a lateral manager of a lateral water users’ association established pursuant to chapter 13, title 42, Idaho Code, or a watermaster of a water district established pursuant to chapter 6, title 42, Idaho Code, wrongfully:
(a) Divert any water from the ditch or channel where it was placed, caused to be, or left to run by the water delivery organization, a lateral manager, a watermaster, or an authorized representative thereof;
(b) Shut or open any ditch, gate, pump, diversion structure, or dam with intent to:
(i) Divert any water without a right to do so; or
(ii) Deprive any person of the use of the water during any part of the time that such person is entitled to the use of such water;
(c) Cut or alter any ditch; or
(d) Break or destroy any gate, pump, diversion structure, or dam.
(2) A person who violates the provisions of this section shall be liable in a civil action to the person injured at three (3) times the actual damage sustained in consequence of any such wrongful act or acts.
[42-1210, added 2026, ch. 112, sec. 2, p. 569.]
Any person entitled to the use of water from any ditch, canal, or conduit who willfully or wantonly wastes water in a manner that causes injury or damage to another person’s real property shall be liable in a civil action to the owner of the injured or damaged real property.
[42-1211, added 2026, ch. 112, sec. 3, p. 569.]
As used in this chapter:
(1) "Delivery point" means the location where a water delivery organization transfers the control of water to the water users on a lateral.
(2) "Lateral" means any ditch, canal, or conduit not operated and maintained by a water delivery organization that is shared by water users entitled to receive water from:
(a) The same delivery point or points; or
(b) The same point or points of diversion from a natural water source.
(3) "Water delivery organization" means any entity recognized by Idaho law that operates water diversion and delivery facilities, including but not limited to a canal company, ditch company, irrigation company, irrigation district, reservoir company, reservoir district, or water company. A water delivery organization does not include a lateral water users’ association created pursuant to this chapter.
(4) "Water user" means any person or entity entitled to receive water through a lateral.
[42-1301, added 2026, ch. 112, sec. 14, p. 570.]
(1) Water users who share a common lateral or laterals shall be members of and shall constitute a water users’ association known as a lateral water users’ association.
(2) The association shall meet annually between January 1 and the last Monday in March of each year.
(a) The secretary-treasurer of the association shall call the annual meeting by providing ten (10) days’ written notice before the annual meeting date.
(b) If for any reason the secretary-treasurer fails to call a meeting, the annual meeting shall be held on the last Monday in March.
(3) At the annual meeting, the association shall:
(a) Elect a chair, vice chair, and a secretary-treasurer to serve as the association’s board of directors for one (1) year or until successors are elected;
(b) Elect a lateral manager to manage the distribution of water; and
(c) Set the compensation of such elected officers.
(4) The association may:
(a) Adopt rules and regulations for the management of the lateral or laterals and the delivery of water therefrom;
(b) By majority vote, if it is considered to be in the best interests of the lateral water users’ association, combine one (1) or more laterals or abandon any lateral not in use; and
(c) Take any lawful action if doing so is in the best interests of the association.
(5) Each water user in the association shall be entitled to cast one (1) vote, in person, for each inch of water the water user is entitled to receive from the lateral and a fractional vote equal to the fraction of an inch of water the water user is entitled to receive. Corporations or other legally recognized entities may designate a representative to cast the vote according to this subsection.
[42-1302, added 2026, ch. 112, sec. 15, p. 570.]
(1) The lateral manager shall ascertain and ensure that the amount of water that each water user is entitled to receive is properly apportioned and distributed for the succeeding irrigation season.
(2) Should a lateral water users’ association fail to elect a lateral manager or fix such manager’s compensation at its annual meeting:
(a) The association’s board of directors may elect a lateral manager and set such manager’s compensation; or
(b) The association’s water users may select and appoint a lateral manager by a written document that designates the manager, sets the compensation, and is signed by a majority of water users from the association.
(3) Any lateral manager elected or appointed pursuant to subsection (2) of this section or section 42-1302, Idaho Code, shall:
(a) Have documentation of their election or appointment recorded with:
(i) The manager, superintendent, or board of directors of the water delivery organization that delivers water to the lateral’s delivery point or points; or
(ii) The watermaster of the state water district appointed pursuant to section 42-605, Idaho Code, who delivers water to the point or points of diversion from a natural water source; and
(b) Be treated as the lateral manager by the water delivery organization for the succeeding irrigation season unless such organization is notified by the lateral water users’ association that a new lateral manager has been elected or appointed.
(4) Any water delivery organization delivering water to a lateral delivery point or points may, upon providing reasonable notice, refuse delivery of water for failure of the water users to appoint or select a lateral manager pursuant to this section or section 42-1302, Idaho Code.
[42-1303, added 2026, ch. 112, sec. 16, p. 571.]
(1) If an association’s water users do not elect or otherwise appoint a lateral manager pursuant to section 42-1302 or 42-1303, Idaho Code, the board of directors of the water delivery organization that delivers water to the lateral may, upon the written request of one (1) or more of the association’s water users, appoint and set the compensation of a lateral manager. Such compensation shall be assessed to the water users pursuant to this chapter and may be collected in the same manner as other assessments are collected by the water delivery organization.
(2) A lateral manager appointed pursuant to this section shall:
(a) Have and exercise all of the powers and perform all of the duties of a lateral manager as described in this chapter; and
(b) Serve only for the period fixed by the appointment and not beyond the remainder of the year in which the manager is appointed.
[42-1304, added 2026, ch. 112, sec. 17, p. 571.]
(1) If water users taking water from the same point or points of diversion from any natural water source do not select or elect a lateral manager as provided in this chapter, then the director of the department of water resources may appoint and set the compensation of a lateral manager upon the written request from one (1) or more of the association’s water users alleging that water is not being apportioned and distributed properly among the water users from the lateral and that the rights of the water users are thereby being injured.
(2) A lateral manager appointed by the director pursuant to this section:
(a) May set and collect assessments as is necessary to achieve the proper allocation and distribution of water from laterals;
(b) Shall not borrow money or otherwise mortgage or pledge assets pursuant to this chapter; and
(c) Shall serve only for the period fixed by the appointment and not beyond the remainder of the year in which the manager is appointed.
(3) If the lateral is within a water district established pursuant to chapter 6, title 42, Idaho Code, the director shall, upon receipt of request for appointment of a lateral manager, advise the watermaster of the request and invite the watermaster to make recommendations concerning the need for appointment of a lateral manager and the nomination of a person to be appointed if an appointment is necessary.
(4) The director shall make a reasonable effort to provide written notice of the request to all affected lateral water users. Except in the case of serious threat of imminent injury to person or property, the director shall allow fourteen (14) days for written response to the request.
(5) Based on a review of the request, the responses thereto, the recommendations of the watermaster, and any investigation by the department of water resources, the director shall issue a decision either appointing a lateral manager or declining appointment of a lateral manager. Any person aggrieved by the director’s decision shall be entitled to request a hearing before the director pursuant to section 42-1701A, Idaho Code.
[42-1305, added 2026, ch. 112, sec. 18, p. 572.]
(1) Water users shall keep their laterals in good condition for carrying and distributing water.
(2) A water delivery organization may send written notices to water users or a lateral water users’ association specifying any lateral maintenance deficiencies and a reasonable time to remedy the deficiencies. The water delivery organization may refuse delivery of water for failure of the water users or lateral water users’ association to adequately maintain any lateral pursuant to the water delivery organization’s notice.
(3) Water users or a lateral water users’ association who neglect or refuse to perform the duties imposed on them by this section shall have no cause of action, including damages, against the water delivery organization for failure to deliver or distribute water to the lateral.
(4) The operation, improvement, repair, and maintenance of any lateral shall be under the direction of the association’s board of directors. The board, with the lateral manager, shall examine laterals with maintenance deficiencies and prepare an estimate of the total cost to repair, operate, and maintain the lateral so that water can be properly delivered to the association’s water users during the succeeding irrigation season. Such total costs, plus compensation for the board members and lateral manager, shall be assessed to each water user either:
(a) In the proportion which the quantity of water the water user is entitled to receive from the lateral or laterals bears to the total quantity of water which all lateral water users’ association water users are entitled to receive; or
(b) If the water user’s land consists of a lot or lots within a city or village, then the assessment may be made on the basis of each lot, the same to be uniform on lots of the same size.
[42-1306, added 2026, ch. 112, sec. 19, p. 572.]
(1) On or before April 15, an association’s secretary-treasurer of the lateral water users’ association shall assess each water user for that year. Such assessment shall be due and payable on May 1 each year. If the assessment is not paid by the water user on or before June 15 each year:
(a) A penalty of ten percent (10%) may be added thereto; and
(b) The total amount due shall then draw interest at the rate of ten percent (10%) per annum from June 15 until paid.
(2) The lateral water users’ association may, by vote of the water users at any annual meeting, set dates for notice and payment of assessments and any related late fees that are different than those prescribed by this section, provided that each water user is always given at least fifteen (15) days’ notice to make a payment.
[42-1307, added 2026, ch. 112, sec. 20, p. 573.]
(1) No water user that has a delinquent assessment shall be entitled to demand or receive water from a lateral.
(2) The lateral manager shall not distribute any water to the water user that has a delinquent assessment except upon order of the association’s board of directors, who may allow the delivery of water if the water user provides security satisfactory to the board for the payment of any such delinquent assessment.
[42-1308, added 2026, ch. 112, sec. 21, p. 573.]
(1) A lateral water users’ association’s lateral manager or secretary-treasurer shall collect all assessments made to the association and shall deposit the same into an account that is in the name of the association.
(2) The secretary-treasurer shall:
(a) Keep the funds of the association in the account and pay the costs and expenses for the management and operation of the laterals; and
(b) Upon the order of the association’s board of directors, perform other duties as the association may prescribe.
[42-1309, added 2026, ch. 112, sec. 22, p. 573.]
(1) A lateral water users’ association’s board of directors or lateral manager, or the water delivery organization associated therewith, may sue to collect any delinquent assessments that are due and unpaid in any court of competent jurisdiction.
(2) Reasonable attorney’s costs and fees may be collected, as determined by the court, in addition to the full delinquent assessment and all penalties and interest associated therewith and costs incurred in attempting to collect such assessment.
[42-1310, added 2026, ch. 112, sec. 23, p. 574.]
(1) The amount assessed against each water user, together with any penalties and interest, shall be a first and prior lien, except as to a lien related to taxes and assessments of a water delivery organization, upon the water user’s land that is entitled to receive water from the point or points of delivery in the canal or reservoir, or from the point or points of diversion from waters of the state, that supplies the association’s lateral or ditch.
(2) The lien shall be recorded and collected pursuant to section 55-3207, Idaho Code.
[42-1311, added 2015, ch. 80, sec. 3, p. 203; am. 2022, ch. 323, sec. 5, p. 1045; am. 2026, ch. 112, sec. 24, p. 574.]
(1) A lateral water users’ association may:
(a) Borrow money to repay a loan;
(b) Mortgage or pledge any assets of the association as security for a loan; and
(c) Levy assessments to repay a loan.
(2) Before any money can be borrowed or any mortgage or pledge can be made or entered into, the association’s secretary-treasurer shall send a written notice to all water users to inform the water users that an election is being called to determine whether or not the association, through its chair and secretary-treasurer, may borrow money or mortgage or pledge its assets. Such notice shall include a brief description of the proposed action and the date, time, and place of such election, which shall be held at least ten (10) days after the date of the secretary-treasurer’s notice.
(3) The election shall be determined by a majority vote of the water users present at the election in accordance with section 42-1302(5), Idaho Code.
[42-1312, added 2026, ch. 112, sec. 25, p. 574.]
(1) A water user may withdraw from a water users’ association by providing written notice and proof that the water user’s land is no longer entitled to receive water from the water delivery organization and the point or points of delivery in the canal or reservoir, or from the point or points of diversion from waters of the state, that supplies the association’s lateral or ditch.
(2) Withdrawal shall not affect any delinquent assessment or lien recorded against the water user’s land pursuant to this chapter that accrued before the user’s withdrawal.
[(42-1313) 42-1312, added 2015, ch. 80, sec. 5, p. 203; am. and redesig. 2026, ch. 112, sec. 26, p. 575.]
(1) If a lateral water users’ association has not elected a board of directors or appointed a lateral manager pursuant to this chapter, any water user taking water from a lateral may authorize the water delivery organization providing water to the lateral to perform any necessary repairs, improvements, or maintenance to the lateral.
(2) The water delivery organization may perform the requested work only if the organization’s board has adopted a resolution authorizing the work.
(3) The water delivery organization shall have the same rights and privileges as the water user authorizing the work to enter the land across which the associated right-of-way extends to clean, maintain, repair, and perform such other work as may be done by the authorizing water user.
(4) By performing such work, the water delivery organization does not assume ownership of the lateral or incur liability for any injury to person or property caused by an act or omission of the authorizing water user.
(5) When such work has been authorized, the water delivery organization may assess the respective authorizing water user or users for the annual cost of any necessary repairs, improvements, or maintenance performed on the lateral, in addition to the assessments that are levied by the water delivery organization for the delivery of water to the water user or users, and the same provisions shall apply with regard to delinquent assessments as in the case of assessments levied by the water delivery organization for the delivery of water.
(6) Nothing in this section shall affect the authority of a lateral water users’ association from assessing its members for work authorized pursuant to this chapter.
[(42-1314) 42-1310, added 2004, ch. 147, sec. 1, p. 477; am. and redesig. 2026, ch. 112, sec. 27, p. 575.]
(1) Each water delivery organization shall provide the necessary diversion structures and measuring devices at delivery points to control and measure the quantity of water being delivered to water users served by the water delivery organization, unless the bylaws or controlling documents of the water delivery organization provide otherwise.
(2) Measuring devices shall comply with standards approved by the department of water resources.
[42-1315, added 2026, ch. 112, sec. 28, p. 576.]
The legislature finds and declares that the state laws and procedures for the adjudication of rights to the use of water need to be modified:
(1) to provide a statutory procedure for incorporating a negotiated agreement between a federal reserved water right claimant and the state of Idaho into an adjudication;
(2) to provide a more efficient method for adjudications;
(3) to assure that state laws and procedures provide a fair and impartial forum for the adjudication of the rights of all claimants; and
(4) to assure that state laws and procedures are adequate as a matter of federal law to adjudicate all water rights claimed to have been established under federal law and to administer such rights.
[42-1401, added 1986, ch. 220, sec. 2, p. 560; am. 1994, ch. 454, sec. 1, p. 1445.]
The following terms are defined for purposes of this chapter as follows:
(1) "Claimant" means any person asserting ownership of rights to the use of water within the state of Idaho or on whose behalf ownership of rights to the use of water is asserted.
(2) "Department" means the Idaho department of water resources.
(3) "Director" means collectively the director of the Idaho department of water resources and the Idaho department of water resources.
(4) "Domestic use" is defined in section 42-111, Idaho Code.
(5) "General adjudication" means an action both for the judicial determination of the extent and priority of the rights of all persons to use water from any water system within the state of Idaho that is conclusive as to the nature of all rights to the use of water in the adjudicated water system, except as provided in section 42-1420, Idaho Code, and for the administration of those rights.
(6) "Party" means any person who is a claimant or any person who is served or joined.
(7) "Person" means an individual, a partnership, a trust, an estate, a corporation, a municipal corporation, the state of Idaho or any political subdivision, the United States, an Indian tribe, or any other public or private entity, except that "person" does not include the director of the department or the department.
(8) "Private adjudication" means an action commenced in accordance with section 42-1404, Idaho Code, for the judicial determination of both the extent and priority of the rights of named persons to the use of water from any water system within the state of Idaho, for which a general adjudication has not been commenced or completed, that binds only those persons joined in the action and for the administration of such rights.
(9) "Purchaser" means any successor in interest of a claimant, whether the interest is acquired by purchase, gift, inheritance, or other means.
(10) "Supplemental adjudication" means an action commenced in accordance with section 42-1424, Idaho Code, for the judicial determination of both the extent and priority of the rights of a person to the use of water from any water system within the state of Idaho which has been adjudicated in a general adjudication or in a private adjudication.
(11) "Stock watering use" means the use of water solely for livestock or wildlife where the total diversion is not in excess of thirteen thousand (13,000) gallons per day.
(12) "Water system" includes all rivers, streams, lakes, springs, ground waters, or other sources within this state, including any river system or other source, as used in 43 U.S.C. section 666.
[42-1401A, added 1986, ch. 220, sec. 3, p. 560; 1986, ch. 234, sec. 1, p. 645; am. 1990, ch. 319, sec. 6, p. 875; am. 1994, ch. 454, sec. 2, p. 1445; am. 1996, ch. 186, sec. 1, p. 585; am. 1997, ch. 374, sec. 2, p. 1194.]
(1) The director’s role under this chapter is as an independent expert and technical assistant to assure that claims to water rights acquired under state law are accurately reported in accordance with the procedures of chapter 14, title 42, Idaho Code. The director shall make recommendations as to the extent of beneficial use and administration of each water right under state law and may use uniform parameters for quantification of beneficial use recommended for rights within climatic regions of the state.
(2) The director shall not be a claimant on behalf of the state or any subdivision of the state in an adjudication.
(3) The director shall not be a party to an adjudication.
[42-1401B, added 1994, ch. 454, sec. 3, p. 1446.]
(1) Each state agency, and the Idaho water resource board may file a claim and appear separately in any adjudication through the attorney general. This section shall not apply to the Idaho department of water resources.
(2) The attorney general may appear in any adjudication and shall represent the position of the state of Idaho.
[42-1401C, added 1994, ch. 454, sec. 4, p. 1447.]
Review of an agency action of the department of water resources, which is subject to judicial review or declaratory judgment under the provisions of chapter 52, title 67, Idaho Code, shall not be heard in any water rights adjudication proceeding commenced under this chapter. Venue and jurisdiction over any such action pending on the effective date of this section, or initiated subsequent thereto, shall be in the district court as authorized under the provisions of section 67-5272, Idaho Code, without regard to any other provision of law.
[42-1401D, added 2001, ch. 31, sec. 2, p. 48.]
In allotting the waters of any water system by the district court according to the rights and priorities of those using such waters, such allotment shall be made to the use to which such water is beneficially applied, except where water rights established under federal law are involved, in which case the allotment shall be made in accordance with federal law. The right confirmed by such decree or allotment shall be appurtenant to and shall become a part of the land on which the water is used, and such right will pass with the conveyance of such land, and such decree shall describe the land to which such water shall become so appurtenant. The amount of water so allotted shall never be in excess of the amount actually used for beneficial purposes for which such right is claimed, or in the case of a water right established under federal law, in excess of that amount determined by federal law.
[(42-1402) 1903, p. 223, sec. 38; reen. R.C., sec. 4621; am. 1913, ch. 35, sec. 1, p. 133; C.L., sec. 4621; C.S., sec. 7033; I.C.A., sec. 41-1302; am. 1969, ch. 279, sec. 2, p. 822; am. 1986, ch. 220, sec. 4, p. 561; am. 1994, ch. 454, sec. 5, p. 1447.]
It shall be the duty of the clerk of the district court in each of the counties of this state to prepare at the expense of the county, and transmit without delay to the department of water resources by express or registered mail, a certified copy of the allotments of the various streams, made by the district court and now on file in the offices of the district court in the various counties of the state: provided, that said clerk may, in place of such transcript, transmit such original records of such decrees as are recorded in books kept for that purpose. Immediately upon receipt of said transcripts or said original records, it shall be the duty of the department to record them in its files, and to classify and arrange said decrees by placing all the rights to water of one stream and its tributaries together, and the department shall send to each watermaster a certified copy of the allotments made by the district court of all the streams within his district. And when an allotment of the waters of a stream shall be made by the district court, the clerk of such district court shall immediately prepare, at the expense of the county, and transmit to the department of water resources, a certified copy of the decree allotting such waters. The director may issue an abstract of decreed water right which shall describe the elements of a water right as contained in the water right decree.
[(42-1403) 1903, p. 223, sec. 39; reen. R.C. & C.L., sec. 4622; C.S., sec. 7034; I.C.A., sec. 41-1303; am. 1994, ch. 454, sec. 6, p. 1447.]
(1) Any claimant may file suit in the district court for the county in which the point of diversion or place of use of the claimed right is located for the purpose of adjudicating rights to the use of water from any water system for which a general adjudication has not been commenced or completed. The claimant shall set forth in his complaint the claimed water right in a notice of claim form furnished by the director. The claimant shall join all claimants of rights to the use of water from the water system whose joinder is necessary to resolve the dispute over rights to the use of water from the water system. The claimant shall also publish notice of the action in the manner specified in subsection (2)(b) of section 42-1408A, Idaho Code.
(2) Any party who may be injured and who objects to the water right claimed by the claimant shall, within forty-five (45) days of the date of first publication of notice, file with the district court written notice of such objection stating the reasons for the objection. A copy of the objection shall be served upon the claimant, all other parties of record in the action, the watermasters, and the director.
(3) Any claimant of a right to the use of water from the water system being adjudicated shall be entitled to intervene and have the claimed right adjudicated. Any such claimant requesting intervention shall set forth the claimed water right in a notice of claim form furnished by the director. The court may request a director’s report of the director, as described in section 42-1411, Idaho Code, as to those rights to be determined. The director shall advise the district court as to whether the director will commence an examination of the water system in accordance with the provisions of section 42-1410, Idaho Code. If the director elects not to conduct an examination, the adjudication shall proceed based on the description of the water right in the notice of claim form. Each claimant shall have the burden of proof of establishing each element of a water right described in the claimants notice of claim form.
(4) The director shall provide to the court an estimate of the costs that will be incurred in conducting the examination and in preparing the director’s report and an approximate time when the director’s report will be completed. The court shall order the claimants of the rights to be determined to submit a notice of claim to the director in accordance with section 42-1409, Idaho Code, except that the fee as described in section 42-1414, Idaho Code, shall not apply. Upon the completion of claims-taking, the director shall bill each claimant for a claim fee equal to that claimant’s proportionate share of the total estimated cost to the state relative to that claimant’s share of the total amount of water claimed by all claimants or for an amount as determined by the court. Any notice of claim for a water right for which the fee is unpaid after thirty (30) days from billing by the director shall be incomplete and may be rejected. Prior to filing of the report with the court, the claimants shall pay the balance of the department’s verified costs or be refunded any unused estimated costs advanced to the department in the same proportion as described above. In the event that a claimant shall contest the department’s costs, the court shall then determine the reasonable costs to be paid by each claimant.
(5) Notice of the filing of the director’s report shall be given and objections to the director’s report shall be made and heard as provided in sections 42-1411 and 42-1412, Idaho Code.
(6) The decree, which shall be entered pursuant to section 42-1412, Idaho Code, shall contain or incorporate a statement of each element of a water right as stated in subsection (2) of section 42-1411, Idaho Code, as applicable. The decree shall also determine all other matters necessary for the efficient administration of the water rights. The decree shall be conclusive as to the rights determined in the proceeding only as to those persons party to the proceeding.
(7) Any party who has appeared and is aggrieved by the decree of the district court may appeal in accordance with the Idaho appellate rules.
[42-1404, added 1986, ch. 220, sec. 5, p. 562; am. 1994, ch. 454, sec. 7, p. 1448.]
(1) Five (5) or more or a majority of the users of water from any water system may petition the director to request the attorney general to file an action to commence a general adjudication. If the director deems that the public interest and necessity will be served by a determination of the water rights of that water system, the director shall request the attorney general to file an action to commence the general adjudication.
(2) If the director deems that the public interest and necessity will be served by a determination of the water rights of any water system, the director, upon his own initiative, may request the attorney general to file an action to commence a general adjudication.
[42-1405, as added by 1969, ch. 279, sec. 4, p. 822; am. 1986, ch. 220, sec. 7, p. 565; am. and redesig. 1994, ch. 454, sec. 10, p. 1452.]
(1) A petition for a general adjudication shall contain among other things, the following:
(a) a description of the proposed boundaries of the water system to be adjudicated and administered;
(b) a statement of why the public interest and necessity would be served by a general adjudication;
(c) a list of counties where the water system proposed to be adjudicated and administered is located and a designation of whether all or only a portion of the county is included within the boundaries of the proposed general adjudication;
(d) a description of the general method proposed to ascertain and to serve claimants not disclosed following completion of the service required by paragraphs (a) through (d) of subsection (2) of section 42-1408, Idaho Code; and
(e) a prayer for relief requesting the district court to enter an order that commences the general adjudication.
(2) A petition for entry of an order commencing a general adjudication shall be captioned: "In Re the General Adjudication of Rights to the Use of Water From the ……………. Water System." Such action shall have no other caption.
[(42-1406) 1986, ch. 220, sec. 8, p. 566; am. and redesig. 1994, ch. 454, sec. 12, p. 1453.]
(1) Effective management of the waters of northern Idaho requires that a comprehensive determination of the nature, extent and priority of the rights of users of surface and ground water be determined. Therefore, the director of the department of water resources is authorized to petition the district court to commence adjudications within the terms of the McCarran amendment, 43 U.S.C. section 666, of the water rights from surface water and ground water sources in northern Idaho through initiation of three (3) proceedings, provided that each petition includes a request for the deferral of the adjudication of domestic and stock water rights as defined by subsections (4) and (11) of section 42-1401A, Idaho Code, and a request that a commencement order be issued only if the court determines it is possible to defer the adjudication of domestic and stock water rights as defined by subsections (4) and (11) of section 42-1401A, Idaho Code, within the terms of the McCarran amendment. Separate petitions shall be filed for water rights adjudications for each of the following river basins, and related ground water sources whether or not hydraulically connected to a surface water source, within Idaho: the Coeur d’Alene-Spokane river basin, the Palouse river basin, and the Clark Fork-Pend Oreille river basins, which do not include basin 98. The filing of each petition shall be contingent on legislative funding approval. Each petition shall describe the boundaries of the water source or water sources to be adjudicated.
(2) The adjudication shall be brought in any district court in which any part of the water source is located or before a court of special jurisdiction for water right adjudications. Unless otherwise ordered by the supreme court, special jurisdiction for the water rights general adjudications authorized by this section shall reside in the Snake River Basin Adjudication district court of the fifth judicial district of the state of Idaho, in and for the county of Twin Falls. The clerk of the district court in which the petition is filed shall send to the supreme court a true and certified copy of the petition. The supreme court, by order, shall assign the judge to preside over the general adjudication. Venue of the general adjudication shall be determined by order or rule of the supreme court and venue of hearings under the general adjudication shall be determined by order of the presiding judge.
(3) Upon issuance of an order by the district court which authorizes the director to commence an investigation and determination of the various water rights to be adjudicated from the water source or water sources, and which defines the boundaries of the source or sources within the state to be adjudicated, the director of the department of water resources shall proceed in the manner provided under the provisions of chapter 14, title 42, Idaho Code, to the extent not inconsistent with the provisions of this section.
[42-1406B, added 2006, ch. 222, sec. 1, p. 661; am. 2008, ch. 149, sec. 1, p. 434; am. 2008, ch. 159, sec. 1, p. 456.]
(1) Effective management of the waters of the Bear River basin requires that a comprehensive determination of the nature, extent, and priority of the rights of all users of surface and ground water be determined. Therefore, the director of the department of water resources is authorized to petition the district court to commence an adjudication within the terms of the McCarran amendment, 43 U.S.C. 666, of the water rights from surface water and ground water sources in the Bear River basin. The petition shall describe the boundaries of the water source(s) to be adjudicated and contain a request that a commencement order be issued only if the court determines it is possible to defer the adjudication of domestic and stock water rights as defined by subsections (4) and (11) of section 42-1401A, Idaho Code, within the terms of the McCarran amendment.
(2) For purposes of adjudicating water rights, the Bear River basin is defined as all waters of the state of Idaho, both ground water and surface water, flowing into or toward the Bear River or flowing toward the Great Salt Lake in the Great Basin.
(3) The adjudication shall be brought before a court of special jurisdiction for water right adjudications. Unless otherwise ordered by the supreme court, special jurisdiction for the general adjudication authorized by this section shall reside in the Snake River Basin Adjudication district court of the fifth judicial district of the state of Idaho, in and for the county of Twin Falls. The clerk of the district court in which the petition is filed shall send to the supreme court a true and certified copy of the petition. The supreme court, by order, shall assign the judge to preside over the general adjudication. Venue of the general adjudication shall be determined by order or rule of the supreme court, and venue of hearings under the general adjudication shall be determined by order of the presiding judge.
(4) Once the district court issues an order that authorizes the director to commence an investigation and determination of the water rights within the boundaries of the adjudication and defines the boundaries of the adjudication, the director of the department of water resources shall proceed in the manner provided under the provisions of chapter 14, title 42, Idaho Code, to the extent not inconsistent with the provisions of this section.
[42-1406C, added 2020, ch. 50, sec. 1, p. 116.]
(1) Effective management of the waters of the Kootenai River basin requires that a comprehensive determination of the nature, extent, and priority of the rights of all users of surface and ground water be determined. Therefore, the director of the department of water resources is authorized to petition the district court to commence an adjudication within the terms of the McCarran amendment, 43 U.S.C. 666, of the water rights from surface water and ground water sources in the Kootenai River basin. The petition shall describe the boundaries of the water sources to be adjudicated and contain a request that a commencement order be issued only if the court determines it is possible to defer the adjudication of domestic and stock water rights as defined by section 42-1401A(4) and (11), Idaho Code, within the terms of the McCarran amendment.
(2) The adjudication shall be brought in any district court in which any part of the water source is located or before a court of special jurisdiction for water right adjudications. Unless otherwise ordered by the supreme court, special jurisdiction for the general adjudication authorized by this section shall reside in the Snake River Basin Adjudication district court of the fifth judicial district of the state of Idaho, in and for the county of Twin Falls. The clerk of the district court in which the petition is filed shall send to the supreme court a true and certified copy of the petition. The supreme court, by order, shall assign the judge to preside over the general adjudication. Venue of the general adjudication shall be determined by order or rule of the supreme court and venue of hearings under the general adjudication shall be determined by order of the presiding judge.
(3) Once the district court issues an order that authorizes the director to commence an investigation and determination of the water rights within the boundaries of the adjudication and defines the boundaries of the adjudication, the director of the department of water resources shall proceed in the manner provided under the provisions of this chapter to the extent not inconsistent with the provisions of this section.
[42-1406D, added 2024, ch. 223, sec. 1, p. 789.]
(1) A general adjudication shall be brought in any district court in which any part of the water system within the state of Idaho is located. The clerk of the district court in which the petition is filed shall send to the supreme court a true and certified copy of the petition. The supreme court, by order, shall assign the judge to preside over the general adjudication. Venue of the general adjudication shall be determined by order or rule of the supreme court and venue of hearings under the general adjudication shall be determined by order of the presiding judge.
(2) The director shall prepare, in plain and concise language, and publish a notice of filing of a petition for entry of an order commencing a general adjudication for three (3) consecutive weeks in a newspaper of general circulation published in each county in which any part of the water system proposed to be adjudicated is located. If there is no newspaper published within a county, then the notice shall be published in a newspaper having general circulation in that county. The date set for hearing on the petition shall not be less than twenty (20) days after the last date of publication. The director shall serve the notice of filing a petition on the United States and on the state of Idaho. The director shall file affidavit(s) of service of the notice of filing with the district court upon completion of service.
(3) The notice of filing shall contain:
(a) a description of the boundaries of the water system proposed for the general adjudication;
(b) a statement of the date, place, and time of hearing before the district court;
(c) a concise statement of the matters proposed to be considered before the district court; and
(d) a statement that the district court will hear evidence and legal argument from any person in response to any matter raised by the petition.
(4) With respect to a general adjudication commenced pursuant to section 42-1405, Idaho Code, if the district court determines that the public interest and necessity will be served by a general adjudication, the district court shall enter an order that includes the following:
(a) a provision that commences the general adjudication;
(b) a description of the boundaries of the water system for which a general adjudication is commenced;
(c) a list of counties where the water system to be adjudicated and administered is located and a designation of whether all or only a portion of the county is included within the boundaries of the general adjudication;
(d) a provision that requires all claimants to file a notice of claim or negotiated agreement for all water rights from the water system, except that the court may exclude those types of water rights designated in paragraph (a) of subsection (1) of section 42-1420, Idaho Code;
(e) a determination of the method of service for claimants not disclosed following completion of the service required by paragraphs (a) through (d) of subsection (2) of section 42-1408, Idaho Code; and
(f) a statement that the files of the district court will contain affidavits of service and other documents stating the persons served with a copy of the notice of order commencing the general adjudication.
(5) Upon entry of a commencement order, the general adjudication shall proceed in accordance with this chapter.
(6) Promptly upon entry of the commencement order, the clerk of the district court shall send a certified copy of the order to the director, and shall serve notice of entry of the order on all persons appearing before the court in accordance with the Idaho rules of civil procedure.
[(42-1407) 1986, ch. 220, sec. 9, p. 566; am. and redesig. 1994, ch. 454, sec. 13, p. 1454.]
(1) Upon entry of a district court’s order commencing a general adjudication, the director shall prepare a notice of order, using plain and concise language, that contains the following information or enclosures:
(a) an order commencing a general adjudication has been entered, the date of entry of the order, and the district court that entered the order;
(b) an illustration of the boundaries of the water system to be adjudicated and administered;
(c) that section 42-1409, Idaho Code, requires in a general adjudication all claimants, except as specifically excluded by law, to file for each water right, a notice of claim on a form furnished by the director; failure to file a required notice of claim will result in a court determination that no water right exists for the use of water for which the required notice of claim was not filed;
(d) a notice of claim is required for any water right license and for any water right permit on file for which the director requires a permit holder to file a notice of claim in accordance with section 42-1409, Idaho Code; a notice of claim may be filed for any other water right permit;
(e) a notice of claim is not required for a water right evidenced by an application on file with the department;
(f) a notice of claim, if the court order excludes any uses from an adjudication, may be filed for the excluded use prior to the filing of the director’s report with the district court and the right will be determined, even though a notice of claim is not required;
(g) a notice of claim is not required for any person who receives water solely by virtue of ownership of shares of stock in, or by being located within the boundaries of, a water delivery organization, if the water delivery organization holds legal title to the water right and if the water delivery organization files a notice of claim;
(h) the date set by the director for filing a timely notice of claim, which shall not be less than ninety (90) days after service;
(i) that section 42-1409A, Idaho Code, imposes substantial restrictions on the filing of amended or late notices of claim;
(j) the locations at which the notice of claim forms will be available;
(k) section 42-1414, Idaho Code, requires each claimant, other than those exempted by federal law, to pay a variable fee to the director with a notice of claim; failure to pay the fee will result in rejection of the notice of claim; failure to file a timely notice of claim will result in the assessment of a late fee in the amount of fifty dollars ($50.00) or fifteen per cent (15%) of the original filing fee, whichever is greater;
(l) section 42-1409, Idaho Code, requires that all purchasers of a water right inquire of the director whether a notice of claim has been filed, and if not, to file a notice of claim, except as specifically excluded by law, and that all claimants and purchasers provide the director written notice of any change in ownership, along with some evidence of ownership or of any change in mailing address; and
(m) the files of the district court will contain affidavits of service or other documents stating the persons served with a copy of the notice of order.
(2) The director shall serve copies of the notice of order as follows:
(a) the director shall serve the notice of order on the state of Idaho and the United States;
(b) the director shall serve the notice of order on claimants other than the persons in paragraph (a) of subsection (2) of this section, initially by publication once a week for three (3) consecutive weeks in a newspaper of general circulation published in each county in which any part of the water system, which is the subject of the general adjudication, is located. If there is no newspaper published within a county, then the copies shall be published in a newspaper having general circulation in that county;
(c) the director shall post the notice of order in each county courthouse, county recorder’s office, and county assessor’s office in which any part of the water system is located. The director shall complete the posting on or before the date of the last publication within each county;
(d) the director shall serve the notice of order by ordinary mail on each person listed as owning real property on the real property assessment roll within the boundaries of the water system to be adjudicated at the address listed on the real property assessment roll; and
(e) the director shall file a copy of the notice of order commencing a general adjudication in the office of the county recorder in each county in which any part of the water system is located; notwithstanding the provisions of section 5-505, Idaho Code, the notice, from the time it is filed with the recorder for record, is constructive notice of the contents thereof within the county in which the notice is recorded, to subsequent purchasers and mortgagees.
(3) The director shall send the notice of order by ordinary mail to all persons who submit a written request to the director to be notified of the commencement of an adjudication. The director may circulate copies in any additional manner the director deems appropriate.
(4) Upon expiration of the period for filing notices of claims, the director shall conduct a second round of service in conformance with this subsection. The director shall compare the notices of claims with department records and other information reasonably available to determine whether there are any rights to water from the water system for which no notice of claim was filed. In the event the director determines that not all claimants have filed claims, the director shall make a reasonably diligent effort in accordance with the court order to determine the land to which the possible claim is appurtenant, the last known owner of that land, and the last known address of that owner. The director shall prepare a second round notice of order. The director shall serve this notice on the last known owner in accordance with the court order. The notice shall contain the information specified in subsection (1) of this section, except that the notice shall state a final date for filing notices of claims. The final date shall be an additional period of time, in no case less than ninety (90) days from the date the notice is served, in which the notice of claim must be received by the director.
(5) The director shall file with the district court such proof of service as may be required to demonstrate compliance with the above requirements.
[(42-1408) 1986, ch. 220, sec. 10, p. 568; 1986, ch. 230, sec. 2, p. 624; am. 1991, ch. 84, sec. 1, p. 188; am. and redesig. 1994, ch. 454, sec. 14, p. 1455.]
(1) The director shall prepare and furnish on request a standard notice of claim form. The notice of claim form shall include the following:
(a) The name and address of the claimant;
(b) The source of water;
(c) The quantity of water claimed:
(i) The quantity of water claimed to be used for water rights acquired under state law shall describe the rate of diversion or, for an instream flow claim, a rate of water flow in cubic feet per second or the annual volume of diversion of water for use or storage in acre-feet per year, or both;
(ii) The quantity of water claimed for water rights established under federal law shall describe for each and every purpose the rate of present and future water diversion or, in the case of an instream flow claim, the rate of flow in cubic feet per second or annual volume of present and future diversion in acre-feet per year, or both;
(d) The date of priority claimed:
(i) The date of priority claimed for water rights acquired under state law shall be from any license, permit, or decree; or if the right is not based upon a license, permit, or decree, then the date when the water was first applied to beneficial use; provided, that for stockwater use on federal land, the claimant may claim the date of the first grazing permit issued on the federal grazing allotment, pursuant to federal grazing authorizations, including but not limited to the Taylor grazing act, as evidence of the date of priority, unless the claimant has evidence of earlier stockwater use on the federal land, which shall then establish the claimed date of priority;
(ii) The date of priority claimed for water rights established under federal law shall be determined in accordance with federal law;
(e) The number of claims, if founded upon a right on file with the department; or if the right is founded upon judicial decree not on file with the department, then the title of the court and cause, number of the action and the date of entry;
(f) The legal description of the existing point(s) of diversion; if the claim is for an instream flow, then a legal description of the beginning and ending points of the claimed instream flow;
(g) The purpose(s) of use and the period of use:
(i) The purpose(s) of use for water rights acquired under state law shall describe each purpose of use and the period of the year when water is used for each purpose;
(ii) The purpose(s) of use for a water right established under federal law shall describe the purposes for which the water included in the claim is presently being used, if at all, and the period of the year when water is necessary for the designated purposes;
(h) A legal description of the place of use:
(i) The legal description of the place of use for water rights acquired under state law shall describe the land where the water is beneficially used; if one (1) of the purposes of use is irrigation, then the number of irrigated acres within each forty (40) acre subdivision, except as provided in section 42-219, Idaho Code; if one (1) of the purposes of use is stockwater on federal land, then the federal grazing allotment name and managing federal agency and the legal description of the base property to which the water right is appurtenant;
(ii) The legal description of the place of use for a water right established under federal law shall describe the federal reservation and the existing or proposed place of use for each consumptive use;
(i) The dates of any changes or enlargements in use for water rights acquired under state law, including the dimension of the diversion works as originally constructed and as enlarged;
(j) Conditions on the exercise of any water right included in any decree, license, approved transfer application or other document; and
(k) Such remarks and other matters as are necessary for definition of the right, for clarification of any element of a right or for administration of the right by the director.
(2) With respect to any water right for which a change was approved by the director pursuant to section 42-211 or 42-222, Idaho Code, after filing the notice of claim and prior to filing of the director’s report, the claimant shall amend the notice of claim consistent with the determination of the director on the change.
(3) Each claimant, through submission of a claim, shall solemnly swear or affirm under penalty of perjury that the statements contained in the notice of claim or amended notice of claim are true and correct.
(4) All claimants of water rights that are included in a general adjudication shall file with the director a notice of claim for all water rights, except for those types of water rights designated in paragraphs (a) through (d) of subsection (1) of section 42-1420, Idaho Code.
(5) Any person who fails to submit a required notice of claim shall be deemed to have been constructively served with notice of a general adjudication by publication and mailing as required by section 42-1408, Idaho Code.
(6) Each purchaser of a water right from the water system shall inquire of the director whether a notice of claim has been filed and, if not, shall file a notice of claim in accordance with this section. All claimants and purchasers shall provide the director written notice of any change in ownership or of any change in mailing address during the pendency of a general adjudication in the manner prescribed in section 42-248, Idaho Code.
(7) At least one hundred twenty (120) days prior to filing of the director’s report with the court, the director may notify each holder of a permit or license to appropriate water from the water system, for which proof of beneficial use was filed after entry of the court’s order commencing a general adjudication, to file a notice of claim within thirty (30) days of mailing of the notice. The director shall notify the holder of the permit or license by certified mail at the most recent address shown in the records of the department.
(8) The district court or director may extend the time for filing a notice of claim.
[42-1409, added 1986, ch. 220, sec. 11, p. 570; am. 1994, ch. 454, sec. 15, p. 1457; am. 1994, ch. 455, sec. 1, p. 1479; am. 1997, ch. 374, sec. 3, p. 1196; am. 2007, ch. 187, sec. 1, p. 545; am. 2021, ch. 157, sec. 2, p. 435; am. 2021, ch. 159, sec. 1, p. 438.]
(1) A claimant may amend a notice of claim or file a late notice of claim at any time prior to the final date for filing notices of claim in the notice of second round service as provided in subsection (4) of section 42-1408, Idaho Code.
(2) A claimant may amend the name and address of a claimant at any time.
(3) A claimant may amend a notice of claim or file a late notice of claim after the final date for filing notices of claims in the notice of second round service for good cause shown to the district court or the director.
(4) No amendments to a notice of claim or late notices of claim shall be allowed except as authorized in subsection (1), (2) or (3) of this section.
[42-1409A, added 1994, ch. 454, sec. 16, p. 1460.]
(1) Upon entry of the court’s order commencing a general adjudication, or as provided in section 42-1404 or 42-1424, Idaho Code, the director shall commence an examination of the water system, the canals and ditches and other works, and the uses being made of water diverted from the water system for water rights acquired under state law. The examination shall continue in a manner and for such a period of time as the director determines is necessary to evaluate the extent and nature of each water right for which a notice of claim under state law has been filed. The director may conduct any fact-finding hearing necessary for a full and adequate disclosure of the facts.
(2) The director and other employees of the department shall have authority to go upon all lands, both public and private, for the purpose of investigating the uses of water from any water source and may require the cooperation of the claimant in investigating the claimant’s water use. The employee investigating the claimant’s use shall make a reasonable effort to contact the claimant to schedule a date and approximate time for the examination. If the well or diversion works are located in a building other than an unlocked structure used solely for housing the well or other diversion works in which there is no reasonable expectation of privacy, the employee shall only enter the building in the absence of a court order after requesting and receiving the permission of the claimant or other occupant. The director may request the district court to issue an order compelling inspection and subpoenas requiring the attendance of any witness or the production of documents in accordance with the Idaho rules of civil procedure.
(3) Any maps prepared by the director shall be available for inspection at the offices of the department and any other locations the director may designate, for the purpose of assisting any claimant in preparing and filing claims and objections to the director’s report.
[42-1410, added 1986, ch. 220, sec. 12, p. 572; am. 1994, ch. 454, sec. 17, p. 1461.]
(1) The director shall prepare a director’s report on the water system. The director may file the director’s report in parts as the director deems appropriate. The director may include such explanatory material as he deems appropriate in the director’s report. Such explanatory material shall not impose any conditions or restrictions on the rights reported and shall not be subject to objection. This explanatory material shall not be used to support any notice of claim, objection to a notice of claim, or response to an objection.
(2) The director shall determine the following elements, to the extent the director deems appropriate and proper, to define and administer the water rights acquired under state law:
(a) The name and address of the claimant;
(b) The source of water;
(c) The quantity of water used describing the rate of water diversion or, in the case of an instream flow right, the rate of water flow in cubic feet per second or annual volume of diversion of water for use or storage in acre-feet per year as necessary for the proper administration of the water right;
(d) The date of priority; provided that for stockwater use on federal land, the director shall accept the date of the first grazing permit issued on the federal grazing allotment, pursuant to federal grazing authorizations, including but not limited to the Taylor grazing act, as prima facie evidence of the date of priority, unless the claimant produces evidence of earlier stockwater use on the federal land, which shall then establish the date of priority;
(e) The legal description of the point(s) of diversion; if the claim is for an instream flow, then a legal description of the beginning and ending points of the claimed instream flow;
(f) The purpose of use;
(g) The period of the year when water is used for such purposes;
(h) A legal description of the place of use; if one (1) of the purposes of use is irrigation, then the number of irrigated acres within each forty (40) acre subdivision, except that the place of use may be described using a general description in the manner provided under section 42-219, Idaho Code, which may consist of a digital boundary as defined in section 42-202B, Idaho Code, if the irrigation project would qualify to be so described under section 42-219, Idaho Code; provided that for stockwater use on federal land, there shall be a rebuttable presumption that the claimant’s base property relates back to the base property when the first grazing permit was issued on the federal grazing land or when water was first applied to beneficial use on the federal land;
(i) Conditions on the exercise of any water right included in any decree, license, or approved transfer application; and
(j) Such remarks and other matters as are necessary for definition of the right, for clarification of any element of a right, or for administration of the right by the director.
(3) The director may include such general provisions in the director’s report, as the director deems appropriate and proper, to define and to administer all water rights.
(4) The director shall file the director’s report with the district court, and the director’s report shall be a part of the record. Upon filing with the court, the director’s report, except for the explanatory material referred to in subsection (1) of this section, shall constitute prima facie evidence of the nature and extent of the water rights acquired under state law. The unobjected to portions of the director’s report shall be decreed as reported.
(5) Each claimant of a water right acquired under state law has the ultimate burden of persuasion for each element of a water right. Since the director’s report is prima facie evidence of the nature and extent of the water rights acquired under state law, a claimant of a water right acquired under state law has the burden of going forward with the evidence to establish any element of a water right that is in addition to or inconsistent with the description in a director’s report. Any party filing an objection to any portion of the director’s report shall have the burden of going forward with the evidence to rebut the director’s report as to all issues raised by the objection. Provided however, that a claimant objecting to the director’s recommended place of use described by a digital boundary or other similar technology shall not be required to produce digital boundary or other similar technology-generated evidence in order to meet the burden provided by this section. Places of use described using digital boundaries or other similar technology-based descriptions shall not be entitled to any greater weight than descriptions by metes and bounds, the number of irrigated acres within each forty (40) acre subdivision, or other method adequate for the description of water rights. Any other party to the proceeding may submit evidence in opposition to the objector’s position and in support of the director’s report. All such proceedings shall be governed by the Idaho rules of civil procedure and Idaho rules of evidence.
(6) The director shall file an original of the director’s report with the district court. The director shall also distribute for display and review at least one (1) copy of the director’s report to the office of the clerk of the district court for each county in which any part of the water system is located. The director shall also serve on each claimant or the claimant’s attorney whose water right is listed in the director’s report a notice of filing of the director’s report. Notice shall be sent to the last known address of the claimant or the claimant’s attorney. The notice shall be prepared by the director using plain and concise language and shall include:
(a) A statement that the director’s report of the various water rights acquired under state law has been filed with the district court, naming the district court(s) to which the report was filed;
(b) A copy of that portion of the report setting forth the claimant’s water right;
(c) A statement that a complete copy of the director’s report is available for inspection, listing the locations at which the director’s report is available, which shall include the office of the clerk of the district court for each county in which any part of the water system is located, the offices of the department, and any other locations the director may designate;
(d) A statement that all or a portion of the director’s report is available upon request at the offices of the department, subject to payment of a reasonable fee to cover costs of reproduction and mailing;
(e) A statement that any claimant may file objections to any portion of the director’s report with the district court specified in the notice and must mail a copy of the objection to the director, and to the claimant of each claimed right objected to, if the objector is not also the claimant of the right for which the objection is filed;
(f) The date prior to which all objections must be filed, which shall not be less than sixty (60) days for any director’s report containing five hundred (500) claims or less, one hundred twenty (120) days for any director’s report containing more than five hundred (500) claims and not more than five thousand (5,000) claims, and one hundred eighty (180) days for any director’s report containing more than five thousand (5,000) claims; the above-stated periods of time shall commence on the date of service by mail of the notice of filing;
(g) A statement that claimants may file responses with the court to objections filed against their claims and that a copy of any response must be mailed to the director and to the objector;
(h) The date prior to which all responses to objections must be filed with the court, which shall not be less than sixty (60) days following receipt of a copy of the objection; and
(i) A statement that any part of the report to which no objections are filed shall be decreed by the district court and the time and location set for the hearing at which the unobjected parts of the report will be decreed, which time shall not be less than sixty (60) days following the expiration of the period for filing objections.
(7) The director shall file an affidavit with the district court demonstrating compliance with the notice requirements of subsection (6) of this section.
[42-1411, added 1986, ch. 220, sec. 13, p. 573; am. 1994, ch. 454, sec. 18, p. 1461; am. 1994, ch. 455, sec. 2, p. 1481; am. 1996, ch. 186, sec. 2, p. 586; am. 1997, ch. 374, sec. 4, p. 1198; am. 2002, ch. 12, sec. 1, p. 14; am. 2002, ch. 13, sec. 1, p. 17; am. 2002, ch. 306, sec. 3, p. 873; am. 2003, ch. 167, sec. 1, p. 472; am. 2021, ch. 159, sec. 2, p. 440.]
(1) The district court shall determine the water rights established under federal law in accordance with the procedures established in this section.
(2) The district court shall determine the following procedures for water rights established under federal law:
(a) The contents of a notice of water right claims established under federal law;
(b) The method of service of the notice of water right claims established under federal law;
(c) The location of any depositories of notices of claim for water rights established under federal law, if the district court determines that claim depositories are necessary to provide other claimants reasonable access to the notices of claims established under federal law.
(3) The district court shall be guided by the following three (3) principles in establishing the procedures required in this section:
(a) The purpose of this notice is to provide notice to other claimants of the filing of water rights established under federal law comparable to the notice of filing for water rights acquired under state law;
(b) The procedures shall not impose any burden greater than the burden placed upon the director to prepare, file, and serve the notice of filing for a director’s report; and
(c) The procedure shall comply with the McCarran amendment, 43 USC 666.
(4) Any claimant of a water right established under federal law shall serve all such notices of claim on the other claimants in accordance with the procedures established by the district court.
(5) Any claimant may contract with the director to perform all or any portion of the service required in this section. The director shall require in any contract that the cost of the services provided by the director are reimbursed by the claimant of a water right established under federal law.
(6) The United States, if it filed any notices of claim for a water right established under federal law, and any other claimants of such water rights, shall file an affidavit demonstrating proof of service in compliance with this section.
(7) The district court shall provide at least sixty (60) days for filing objections to water rights established under federal law where the number of those water rights are five hundred (500) or less, at least one hundred twenty (120) days where the number of these water rights are more than five hundred (500) and not more than five thousand (5,000), and at least one hundred eighty (180) days where the number of these water rights are more than five thousand (5,000).
(8) Any claimant who desires to object to a claim established under federal law shall file an objection with the district court within the time specified in the notice of water right claims established under federal law. The claimant shall also send a copy of the objection to the claimant whose claim is the subject of the objection and to the director. Any claimant may file a response to an objection.
(9) The notice of claim, objection, and responses to an objection shall identify the issues to be litigated.
(10) If a claimant of a water right established under federal law has filed notices of claim for one (1) water use based upon state and federal law, the district court shall develop procedures, after an opportunity for hearing, for coordination of the determination of such claims based upon state and federal law.
(11) The district court shall conduct the trial without a jury on an objection or any group of objections in accordance with the Idaho rules of civil procedure.
(12) Each claimant of a water right established under federal law has the ultimate burden of persuasion for each element of a water right. Since no independent review of the notice of claim has occurred as provided for water rights acquired under state law in a director’s report, a claimant of a water right established under federal law has the burden of going forward with the evidence to establish a prima facie case for the water right established under federal law. All such proceedings shall be governed by the Idaho rules of civil procedure and Idaho rules of evidence.
(13) The district court shall enter a partial decree that contains or incorporates a statement of each element of a water right as stated in subsection (1) of section 42-1409, Idaho Code, as applicable, and that contains such general provisions, remarks, and other matters as are necessary for definition of the right, for clarification of any element of a right, or for administration of the right by the director.
(14) If no objections are filed to a notice of claim for a water right established under federal law, the claimant shall appear at a hearing scheduled by the district court and shall demonstrate a prima facie case of the existence of the water right established under federal law prior to entry of a decree for such claimed water right established under federal law. If the claimant fails to present a prima facie case of the existence of the water right established under federal law, then the district court shall enter an order determining that the claimed water right does not exist.
(15) Any party may appeal in accordance with the Idaho rules of civil procedure.
(16) The attorney general shall represent the state of Idaho in all matters regarding claims to water rights established under federal law, including, but not limited to, filing objections to water right claims established under federal law.
[42-1411A, added 1994, ch. 454, sec. 19, p. 1464; am. 1994, ch. 455, sec. 3, p. 1483; am. 1996, ch. 186, sec. 3, p. 588.]
(1) Any claimant who desires to object to a water right, or to a general provision in the director’s report, shall file an objection with the district court within the time specified in the notice of filing of the director’s report. The claimant shall also send a copy of the objection to the claimant whose water right claim is the subject of the objection and to the director.
(2) The director may file with the district court a supplemental report to any objection to the director’s report within the time specified in the notice of filing of the report. The director shall file with the district court the original of the notice of claim. The director shall mail a copy of the supplemental report to the objector and the claimant whose right is the subject of the objection. A claimant may file with the district court a response to any objection filed with respect to the claimant’s water right within the time specified in the notice of filing of the report. If a party other than the claimant or the objector desires to participate in the proceeding concerning a particular objection, the party shall file a response to the objection that states the position of the party. In addition, any party may intervene in any objection proceeding in accordance with rules of practice and procedure established by the district court.
(3) The notice of claim, objections, and responses to objections, shall identify the issues to be heard for water rights acquired under state law.
(4) Following expiration of the period for filing objections and responses thereto, the district court shall hear and determine the objections to any water right or to any general provision in the director’s report. The court shall before any trial, however, order a settlement conference to determine whether the matter can be settled. The court may request the director to conduct a further investigation and to submit a supplemental report for any water right acquired under state law that is the subject of an objection. In addition, the district court or a party may request the director or his designee to present the basis for the recommendations in the director’s report.
(5) The district court or special master shall conduct the trial without a jury on an objection or any group of objections in accordance with the Idaho rules of civil procedure.
(6) The district court shall enter a partial decree determining the nature and extent of the water right which is the subject of the objection or other matters which are the subject of the objection. The decree shall contain or incorporate a statement of each element of a water right as stated in subsections (2) and (3) of section 42-1411, Idaho Code, as applicable. The decree shall also contain an express statement that the partial decree is subject to such general provisions necessary for the definition of the rights or for the efficient administration of the water rights. Upon entry of the decree, the clerk of the district court shall send a certified copy of the decree to the director in accordance with section 42-1403, Idaho Code. The clerk of the district court shall notify the objector and claimant of each right as to which an objection was determined by the district court of entry of the decree in the manner provided in the Idaho rules of civil procedure.
(7) Not less than sixty (60) days after the expiration of the period for filing objections, the director shall file with the district court a statement of those portions of the director’s report for which no objection was filed. Following hearing, the district court shall enter a partial decree as to those portions of the director’s report for which no objection has been filed. However, the district court may exclude unobjected claims from this list if the unobjected claim may be affected by the outcome of a contested matter. The decree shall contain or incorporate a statement of those elements of a water right contained in the director’s report for water rights acquired under state law. Upon entry of the decree, the clerk of the district court shall send a certified copy of the decree to the director in accordance with section 42-1403, Idaho Code. The clerk of the district court shall notify each claimant of entry of the decree in the manner provided in the Idaho rules of civil procedure.
(8) Upon resolution of all objections to water rights acquired under state law, to water rights established under federal law, and to general provisions, and after entry of partial decree(s), the district court shall combine all partial decrees and the general provisions into a final decree.
(9) The district court may extend or shorten the time for filing any objection to the director’s report or any response to an objection.
[42-1412, added 1986, ch. 220, sec. 14, p. 575; am. 1987, ch. 158, sec. 1, p. 308; am. 1994, ch. 454, sec. 20, p. 1466; am. 1994, ch. 455, sec. 4, p. 1486; am. 1997, ch. 374, sec. 5, p. 1200; am. 2002, ch. 13, sec. 2, p. 19.]
(1) When a decree has become final in an adjudication in which the director filed a report, the director shall file a certified copy of the decree or a transcript thereof in the office of the county recorder of each county in which the place of use or point of diversion of the water rights contained in the decree is located.
(2) Upon entry of a final decree, the director shall administer the water rights by distributing water in accordance with the final decree and with title 42, Idaho Code.
(3) When a decree has become final in an adjudication in which the director has not filed a report, the clerk of the district court in which the decree is entered shall file a certified copy of the decree or a transcript thereof in the office of the county recorder for each county in which the place of use or point of diversion of the water rights decreed is located, and shall send a certified copy of the decree to the director as required in section 42-1403, Idaho Code.
(4) The transcript of decree shall contain the following:
(a) title of the district court;
(b) name of the case;
(c) the case number;
(d) names of each party;
(e) date of entry;
(f) the description of the boundaries of the water system, which is the subject of the general adjudication;
(g) a statement that the decree is entered in the records of the clerk of the district court;
(h) a statement that information as to the rights decreed is available at the offices of the department; and
(i) such other information as may be necessary to assist any person searching the title of a parcel to find the decree.
(5) A decree or transcript recorded pursuant to this section from the time it is filed with the recorder for record, is constructive notice of the contents of the decree within the county in which the decree or transcript is recorded to subsequent purchasers and mortgagees.
(6) Notwithstanding the filing of a certified copy of the decree or a transcript thereof in the office of the county recorder, only the legal description of an irrigation district’s boundaries recorded in compliance with title 43, Idaho Code, shall constitute conclusive proof of the district’s boundaries. The decree shall not be construed to define, limit or otherwise affect the apportionment of benefits to lands within an irrigation district pursuant to chapter 7, title 43, Idaho Code. A notice consistent with this subsection shall be filed with the certified copy of the decree or a transcript thereof.
[42-1413, added 1986, ch. 220, sec. 15, p. 577; am. 1994, ch. 454, sec. 21, p. 1469; am. 2003, ch. 167, sec. 2, p. 475.]
(1) In order to provide an adequate and equitable cost-sharing formula for financing the costs of adjudicating water rights the department of water resources shall accept no notice of claim required under the provisions of section 42-1409, Idaho Code, unless such notice of claim is submitted with a filing fee based upon the fee schedule set forth below. Failure to pay the variable water use fee in accordance with the timetable provided shall be cause for the department to reject and return the notice of claim to the claimant. The fee schedule set forth below applies to adjudication proceedings commenced or enlarged on or after January 1, 1985.
(a) Flat fee per claim filed:
(i) Claims for domestic and/or stock watering rights
Provided however, and notwithstanding any other provision of law, fees for stock watering right claims, regardless of the number of claims filed, shall only be imposed on the first four (4) claims per claimant, and there shall be no other fees or costs imposed for such claims.
(ii) Claims for all other rights
(b) Additional variable water use fee for claims filed based upon acreage, power generating capacity, c.f.s., or equivalent volume of water:
(i) Irrigation use (one fee irrespective of number of claims):
.
(ii) Power:
(iii) Aquaculture:
(iv) Municipal, industrial, commercial, mining, heating, cooling:
(v) Public instream flow, public lake level maintenance, wildlife:
(c) All fees collected by the department pursuant to this section shall be placed in the water resources adjudication account established in section 42-1777, Idaho Code.
(2) If a claimant increases in an amended notice of claim the amount of water claimed, the amount of land irrigated, or the kilowatt capacity of the generating facility, the claimant shall pay upon filing the amended notice of claim an additional variable fee in accordance with the rates set forth in subsection (1) of this section. Claimants shall be entitled to a return of filing fees or late fees only where the fee was miscalculated at the time the original or amended notice of claim was filed.
(3) If a claimant files a notice of claim after the date set by the director in the notice mailed or served in accordance with subsections (2), (3), or (4) of section 42-1408, Idaho Code, or with subsection (7) of section 42-1409, Idaho Code, the claimant shall pay the fee set forth in subsection (1) of this section, and in addition, the amount of fifty dollars ($50) or fifteen percent (15%) of the original filing fee, whichever is greater. The director may waive the late processing fee or a portion thereof for good cause.
[42-1414, as added by 1971, ch. 153, sec. 1, p. 753; am. 1972, ch. 23, sec. 1, p. 28; am. 1985, ch. 18, sec. 3, p. 30; am. 1994, ch. 454, sec. 22, p. 1469; am. 1994, ch. 455, sec. 5, p. 1488; am. 1996, ch. 186, sec. 4, p. 590; am. 2006, ch. 222, sec. 2, p. 661; am. 2008, ch. 148, sec. 1, p. 433; am. 2017, ch. 162, sec. 1, p. 385.]
After filing of the director’s report in a general adjudication, the director may prohibit in accordance with chapter 3, title 42, Idaho Code, the diversion and use of water in satisfaction of a right claimed or decreed in the adjudication upon the failure of the claimant to comply with the schedule for payment of variable fees as set forth in subsection (1) of section 42-1414, Idaho Code.
[42-1415, added 1986, ch. 220, sec. 16, p. 578; am. 1994, ch. 454, sec. 23, p. 1470.]
(1) Within any critical ground water area designated pursuant to section 42-233a, Idaho Code, a claim to the expanded use of a ground water right, which use was expanded in violation of the mandatory permit requirements, may be decreed in a general water rights adjudication if the expansion occurred after the designation of the critical ground water area, before the commencement of the adjudication, and before the date of enactment of this section. The priority date for the right decreed shall be June 30, 1985.
(2) Water shall be deemed unavailable to fill the rights for expanded use, even if decreed in the adjudication, unless the director finds that a management program exists which will, within a time period acceptable to the director, limit the average annual water withdrawals from the aquifer designated in the critical ground water area to no more than the average annual recharge to the aquifer.
(3) Within two (2) years after a decree determining the water rights within a critical ground water area becomes final, but not sooner than four (4) years from the date of enactment of this section, the director of the department of water resources shall make a finding as to whether an adequate management program exists to bring withdrawals into balance with recharge.
(4) If the director finds that an adequate management program to bring withdrawals into balance with recharge does not exist, the director shall order all holders of rights to expanded use of ground water within the area to cease or reduce withdrawal of water until such time as the director determines that withdrawals have been brought into balance with recharge and sufficient ground water is available to resume or increase withdrawals. The director’s order shall be issued before September 1 and shall be effective beginning with the following growing season.
(5) For purposes of this section, the following definitions shall apply:
(a) "Expanded use" means an increase in the number of acres irrigated, or other additional use, under a valid ground water right without any increase in the rate of diversion or volume of water diverted.
(b) "Management program" means a program to recharge the aquifer, limit withdrawals from the aquifer or provide surface water supplies for all, or a portion, of the land irrigated with water withdrawn from the aquifer, including any actions designed to bring withdrawals into balance with the average annual recharge to the aquifer.
(c) "Recharge" refers to all processes, natural or artificial, which add water to the aquifer.
(d) "Withdrawal" refers to all processes, natural or artificial, which take water from the aquifer.
(6) The hearing and judicial review provisions of section 42-1701A, Idaho Code, shall apply to any findings and orders issued by the director pursuant to this section.
(7) Nothing contained in this section shall be construed to limit the authority of the director of the department of water resources to administer and enforce any other ground water laws of the state.
[42-1416B, added 1989, ch. 212, sec. 1, p. 521.]
(1) The district court may permit the distribution of water pursuant to chapter 6, title 42, Idaho Code:
(a) in accordance with the director’s report or as modified by the court’s order;
(b) in accordance with applicable partial decree(s) for water rights acquired under state law;
(c) in accordance with applicable partial decree(s) for water rights established under federal law.
(2) The district court may enter the order only:
(a) upon a motion by a party;
(b) after notice by the moving party by mail to the director and each claimant of water from the water system or portion thereof that could reasonably be determined to be adversely affected by entry of the order; and
(c) upon a determination by the court, after hearing, that the interim administration of water rights in accordance with the report, or as the report is modified by the court’s order, and in accordance with any partial decree(s), is reasonably necessary to protect senior water rights.
(3) Immediately upon entry of the court’s order of interim administration of water rights, the clerk of the district court shall mail a certified copy of the order to the director, and the director shall immediately give notice of the order to the watermaster of the water districts affected by the order.
(4) After entry of the district court’s order for interim administration, the director may form a water district pursuant to chapter 6, title 42, Idaho Code.
[42-1417, added 1986, ch. 220, sec. 17, p. 578; am. 1987, ch. 158, sec. 2, p. 310; am. 1994, ch. 454, sec. 25, p. 1471.]
An appeal may be taken to the supreme court from an order, partial decree, or decree of the district court in any adjudication proceeding as provided by rule or order of the supreme court.
[42-1418, added 1986, ch. 230, sec. 3, p. 626.]
(1) The clerk of the district court shall enter an order commencing a general adjudication on a special docket for water right adjudications in addition to any other district court record.
(2) From the time of docketing and not before, any order commencing a general adjudication is constructive notice of the contents thereof, within the county in which the order is docketed, to subsequent purchasers and mortgagees.
(3) The director shall file a true and certified copy of any order commencing a general adjudication with the district court for each county of this state where the water system to be adjudicated is located. The clerk of the district court shall file and docket the same as provided in subsection (1) of this section. From the time of such docketing and not before, the order so docketed is constructive notice of the contents thereof within the county in which the order is docketed to subsequent purchasers and mortgagees.
[42-1419, added 1986, ch. 220, sec. 19, p. 579.]
(1) The decree entered in a general adjudication shall be conclusive as to the nature and extent of all water rights in the adjudicated water system except that the following described water rights shall not be lost by failure to file a notice of claim:
(a) a water right for domestic use or stock watering use, specifically excluded from the general adjudication by court order;
(b) a water right application for permit filed under chapters 2 or 15, title 42, Idaho Code;
(c) a water right permit issued under chapters 2 or 15, title 42, Idaho Code, unless the director required the permit holder to file a notice of claim in accordance with subsection (7) of section 42-1409, Idaho Code;
(d) a water right license issued under chapter 2 or 15, title 42, Idaho Code, if proof of beneficial use had not been filed on the date of commencement of the general adjudication, unless the director required the license holder to file a notice of claim in accordance with subsection (7) of section 42-1409, Idaho Code; and
(e) a claim to a water right established under federal law, if the priority of the right claimed is later than and junior to the date of entry of the order commencing the general adjudication.
(2) The exceptions from the conclusive effect of a decree in a general adjudication stated in subsection (1) above shall not apply to any water right for which a notice of claim or negotiated agreement is filed.
[42-1420, added 1986, ch. 220, sec. 20, p. 580; 1986, ch. 230, sec. 4, p. 626; am. 1994, ch. 454, sec. 26, p. 1472; am. 1996, ch. 186, sec. 5, p. 591.]
(1) All persons claiming a water right based on an application or permit on the date of entry of the order commencing a general adjudication are not required to file a notice of claim unless required in accordance with subsection (7) of section 42-1409, Idaho Code. If the director approves the application in whole or in part during the pendency of a general adjudication and prior to filing the director’s report, the director shall notify the permit holder of the pendency of the general adjudication. A permit holder who is not required by the director to file a notice of claim in accordance with subsection (7) of section 42-1409, Idaho Code, may file a notice of claim at any time prior to filing the director’s report.
(2) All persons claiming a water right based on a water right license existing on the date of entry of the order commencing a general adjudication shall file a notice of claim.
(3) The district court shall decree any claimed water right for which proof of beneficial use has not been filed, but shall state that the right is conditioned upon completion of the appropriation in accordance with the laws of the state governing the appropriation of water and that the decreed right shall be subject to the terms of the license to appropriate water that is ultimately issued.
(4) The director retains jurisdiction of all applications, permits and licenses under chapter 2, 3, 6 or 15, title 42, Idaho Code, to take action authorized by the conditions contained in any permit or license or by applicable law and action on any application for transfer under section 42-222, Idaho Code.
(5) The director retains jurisdiction of all decreed water rights under chapters 2, 3 and 6, title 42, Idaho Code, to take action authorized by the conditions of any decree or by applicable law, including action on any application for transfer under section 42-222, Idaho Code.
(6) The director retains jurisdiction of all beneficial use water rights under chapters 2, 3 and 6, title 42, Idaho Code, to take action authorized by applicable law.
[42-1421, added 1986, ch. 220, sec. 21, p. 580; am. 1994, ch. 454, sec. 27, p. 1472; am. 1996, ch. 186, sec. 6, p. 591.]
(1) The district court may appoint one (1) or more special masters in any general adjudication.
(2) The district court shall specify the powers and duties of a special master in the order of reference. The compensation and disqualification of a special master shall be governed by order or rule of the supreme court.
(3) Objections to and hearing on the special master’s report shall be governed by rule 53(e) of the Idaho rules of civil procedure.
[42-1422, added 1986, ch. 230, sec. 5, p. 627; am. 1994, ch. 454, sec. 28, p. 1473.]
No judgment for costs or award of attorneys fees against the state of Idaho, any state agency, or any officer or employee of the state of Idaho shall be allowed in any water rights adjudication proceeding pursuant to this chapter. The state of Idaho expressly refuses to waive its sovereign immunity to the imposition of any judgment for costs or award of attorney fees. The state of Idaho, state administrative agency, or any officer or employee shall not be required to pay any fees other than those provided in section 42-1414, Idaho Code, for appearing in a proceeding brought under this chapter or any appeal of a matter arising from such proceeding.
[42-1423, added 1994, ch. 454, sec. 30, p. 1473.]
(1) Where an adjudication of a water system has been commenced prior to July 1, 1986, or where an adjudication of a water system has been commenced pursuant to subsection (3) of section 42-1404, Idaho Code, resulting in a decree of any court of competent jurisdiction, and thereafter it appears that any claimant having the right to the use of any part of those waters was not included in the decree as a party, and the right was not determined thereby, or that a claimant subsequent to the decree has acquired any right to the use of those waters, the claimant may bring an action to have such right adjudicated in the manner specified in subsection (3) of this section.
(2) Where a general adjudication of a water system has been commenced or enlarged after July 1, 1986, pursuant to section 42-1405 or 42-1406, Idaho Code, resulting in a decree of any court of competent jurisdiction, and thereafter, it appears that a claimant subsequent to the decree has acquired any right to the use of those waters, or that a claimant who possesses a water right designated in paragraphs (a) through (d) of subsection (1) of section 42-1420, Idaho Code, did not have those water rights determined, the claimant may bring an action to have those water rights adjudicated in the manner specified in subsection (3) of this section.
(3) The following procedure shall be used for any supplemental adjudication:
(a) A claimant may bring an action in the district court that originally heard the general adjudication to conduct a supplemental adjudication of the water rights of the claimant; and
(b) The claimant shall, in his complaint, set forth his acceptance as binding upon him of all prior applicable decrees and the findings of fact and conclusions of law upon which they are based, shall request the commencement of a supplemental adjudication and shall set forth the claimed water right in a notice of claim form furnished by the director and attached to the complaint. Thereupon, the district court shall issue a summons and it shall be served upon the state of Idaho and the United States; and
(c) After return of service of summons, the claimant shall cause to be published once a week for not less than three (3) weeks, a notice of the pendency and purpose of the action in such newspaper or newspapers as the judge of the district court may order, which notice shall contain the title of the court and the cause, the name and post-office address of the claimant, the date of priority of the water right claimed, the source of the water supply, the amount of water claimed, in general the nature of the water use, the approximate location of the point of diversion, and the place of use; and
(d) Any person who may be injured and who objects to the water right claimed by the claimant, as described in the published notice, shall, within forty-five (45) days of the date of the first publication of notice, file with the district court written notice of such objection stating the reasons for the objection. A copy of the objection shall be served upon the claimant, upon all other parties of record in the action, the watermasters, and the director; and
(e) The district court may request that the director determine the water rights in accordance with the procedures set forth in sections 42-1410 through 42-1413, Idaho Code; and
(f) The director, within thirty (30) days after the district court requests the director to prepare a director’s report in accordance with sections 42-1410 through 42-1413, Idaho Code, shall file with the court notification as to whether the director will conduct an examination of the water rights claimed in the complaint in accordance with the procedures set forth in sections 42-1410 through 42-1413, Idaho Code; and
(g) Notification to the court that the director will proceed in accordance with sections 42-1410 through 42-1413, Idaho Code, shall include an approximation of the time when the director’s report will be completed, and an estimate of the director’s costs that will be incurred in conducting the examination and in preparing the reports; and
(h) The claimant shall then be required to advance to the director, the estimated costs to be incurred by the director in conducting the examination and in preparing the reports. Prior to the filing of the director’s report with the court, the claimant shall pay the balance of the director’s verified costs or be refunded any unused estimated costs advanced to the director. In the event that the claimant shall contest the director’s costs, the court shall then determine the reasonable costs to be paid by the claimant; and
(i) The director shall file the report with the court upon completion and shall send a copy thereof to all parties to the action. Objections to the report of the director and hearing upon the objections shall be in accordance with the provisions of section 42-1412, Idaho Code; and
(j) For those cases in which the director notifies the district court that the director does not intend to proceed in accordance with sections 42-1410 through 42-1413, Idaho Code, the cause may thereafter be brought on for hearing in open court, and any claimant having filed a timely objection with the court may appear and defend against the claim.
(4) The court’s decree shall determine the rights of the claimant in accordance with the proof submitted but subject to the terms of the original decree or decrees. The decree shall contain or incorporate a statement of each element of a water right as stated in subsections (2) and (3) of section 42-1411, Idaho Code, as applicable. The decree shall also determine all other matters necessary for the efficient administration of the water rights. Whereupon water shall be distributed to the claimant in accordance therewith and in the same manner as though the claimant’s right had been included in the decree or decrees.
(5) Any person who has appeared in the action may appeal in accordance with the Idaho appellate rules from the decree entered in the action hereby authorized to be brought.
[(42-1424) 1911, ch. 224, sec. 1, p. 708; am. 1915, ch. 34, sec. 18, p. 112; reen. C.L., sec. 4623a; C.S., sec. 7036; I.C.A., sec. 41-1305; am. 1981, ch. 265, sec. 3, p. 562; am. 1986, ch. 220, sec. 6, p. 563; am. 1986, ch. 230, sec. 1, p. 621; am. and redesig. 1994, ch. 454, sec. 8, p. 1449; am. 1997, ch. 374, sec. 6, p. 1201.]
(1) Legislative findings regarding accomplished transfers and the public interest.
(a) The legislature finds and declares that, prior to the commencement of the Snake River basin adjudication, the northern Idaho adjudications, the Bear River basin adjudication, and the Kootenai River basin adjudication, many persons entitled to the use of water or owning land to which water has been made appurtenant either by decree of the court or under provisions of the constitution and statutes of this state changed the place of use, point of diversion, nature or purpose of use, or period of use of their water rights without compliance with the transfer provisions of sections 42-108 and 42-222, Idaho Code.
(b) The legislature finds that many of these changes occurred with the knowledge of other water users and that the water has been distributed to the right as changed. The legislature further finds and declares that the continuation of the historic water use patterns resulting from these changes is in the local public interest provided no other existing water right was injured at the time of the change. Denial of a claim based solely upon a failure to comply with sections 42-108 and 42-222, Idaho Code, where no injury or enlargement exists, would cause significant undue financial impact to a claimant and the local economy. Approval of the accomplished transfer through the procedure set forth in this section avoids the harsh economic impacts that would result from a denial of the claim.
(c) The legislature further finds and declares that examination of these changes by the director through the procedures of section 42-222, Idaho Code, would be impractical and unduly burdensome. The more limited examination of these changes provided for in this section constitutes a reasonable procedure for an expeditious review by the director while ensuring that the changes do not injure other existing water rights or constitute an enlargement of use of the original right.
(2) Any change of place of use, point of diversion, nature or purpose of use, or period of use of a water right by any person entitled to use of water or owning any land to which water has been made appurtenant, either by decree of the court or under the provisions of the constitution and statutes of this state, prior to November 19, 1987, the date of commencement of the Snake River basin adjudication, prior to January 1, 2006, for the northern Idaho adjudications authorized by section 42-1406B, Idaho Code, prior to the date of commencement of the Bear River basin adjudication authorized by section 42-1406C, Idaho Code, and prior to the date of commencement of the Kootenai River basin adjudication authorized by section 42-1406D, Idaho Code, may be claimed in the applicable general adjudication even though the person has not complied with sections 42-108 and 42-222, Idaho Code, provided no other water rights existing on the date of the change were injured and the change did not result in an enlargement of the original right. Except for the consent requirements of section 42-108, Idaho Code, all requirements of sections 42-108 and 42-222, Idaho Code, are hereby waived in accordance with the following procedures:
(a) If an objection is filed to a recommendation for accomplished change of place of use, point of diversion, nature or purpose of use, or period of use, the district court shall remand the water right to the director for further hearing to determine whether the change injured a water right existing on the date of the change or constituted an enlargement of the original right. After a hearing, the director shall submit a supplemental report to the district court setting forth his findings and conclusions. If the claimant or any person who filed an objection to the accomplished transfer is aggrieved by the director’s determination, they may seek review before the district court. If the change is disallowed, the claimant shall be entitled to resume use of the original water right, provided such resumption of use will not cause injury or can be mitigated to prevent injury to existing water rights. The unapproved change shall not be deemed a forfeiture or abandonment of the original water right.
(b) This section is not applicable to any claim based upon an enlargement of use.
[42-1425, added 1994, ch. 454, sec. 31, p. 1474; am. 1996, ch. 186, sec. 7, p. 592; am. 2006, ch. 222, sec. 3, p. 662; am. 2020, ch. 50, sec. 2, p. 117; am. 2024, ch. 223, sec. 2, p. 790.]
(1) Legislative findings regarding enlargements:
(a) The legislature finds that several adjudications of water rights were commenced or will be commenced in the state of Idaho subsequent to the mandatory permit system provided in sections 42-201 and 42-229, Idaho Code. These adjudications include the following, with associated commencement dates:
(i) Snake River basin adjudication, November 19, 1987;
(ii) Coeur d’Alene-Spokane River basin adjudication, November 12, 2008;
(iii) Palouse River basin adjudication, March 1, 2017;
(iv) Clark Fork-Pend Oreille River basin adjudication, June 15, 2021;
(v) Bear River basin adjudication, June 15, 2021; and
(vi) Kootenai River basin adjudication, not yet commenced.
Persons entitled to the use of water or owning any land to which water has been made appurtenant by decree, license or constitutional appropriation have, through water conservation and other means, enlarged the use of said water without increasing the rate of diversion and without complying with the mandatory permit system adopted by the legislature. Enlargements have been done with the knowledge of other water users, and water has been distributed based upon the right as enlarged. Junior water users made appropriations based upon a water system that reflected these enlarged uses. Thus, the legislature further finds and declares that it is in the public interest to waive the mandatory permit requirements for these enlargements in use prior to the commencement of a general adjudication, as long as such enlargements in use did not increase the rate of diversion of the original water right or exceed the rate of diversion for irrigation provided in section 42-202, Idaho Code, after the enlargement of use, and the enlargement of use did not reduce the quantity of water available to other water rights existing on the date of the enlargement in use.
(b) The legislature further finds that it is in the public interest to waive certain statutory provisions for the appropriation of water that has been diverted and applied to beneficial use to ensure the economic and agricultural base in the state of Idaho as it existed on the date of the commencement of an adjudication and to maintain historic water use patterns existing on that date.
(2) The mandatory permit requirements of sections 42-201 and 42-229, Idaho Code, are waived, and a new water right may be decreed for the enlarged use of the original water right based upon the diversion and application to beneficial use, with a priority date as of the date of completion of the enlargement of use for any enlargement occurring on or before the commencement date of an adjudication; provided however, that the rate of diversion of the original water right and the separate water right for the enlarged use, combined, shall not exceed the rate of diversion authorized for the original water right; and further provided, that the enlargement in use did not injure water rights existing on the date of the enlargement of use. An enlargement may be decreed if conditions directly related to the injury can be imposed on the original water right and the new water right that mitigate any injury to a water right existing on the date of enactment of this act. If injury to a water right later in time cannot be mitigated, then the new right for the enlarged use shall be advanced to a date one (1) day later than the priority date for the junior water right injured by the enlargement. It is further provided that any such enlargement of use allowed in a general adjudication shall not constitute an abandonment or forfeiture of the original water right to the extent of current use.
(3) The director shall publish a notice of enlargement of water right for all water rights recommended under this section. The notice shall contain a summary of the notice of claim and shall be published in the same manner as notices for applications to appropriate water in section 42-203A, Idaho Code. Any person who has filed an application for a water right prior to the enactment of this act or who has been issued a permit for a water right prior to commencement of an adjudication but who has not filed a claim in an adjudication shall have thirty (30) days from the date of last publication of the notice of enlargement of a water right under this section to file a petition with the department of water resources to assert any claimed injury from the enlargement. No appeal of the determination of the department shall be allowed. If the applicant or permittee is dissatisfied with the determination of the department on any claim of injury, the sole remedy is to intervene in the general adjudication and assert their claim of injury in an objection to the water right.
[42-1426, added 1994, ch. 454, sec. 32, p. 1475; am. 2000, ch. 311, sec. 1, p. 1048; am. 2020, ch. 50, sec. 3, p. 118; am. 2024, ch. 223, sec. 3, p. 791.]
(1) Legislative findings:
(a) The legislature finds that existing water rights are not uniformly described. Many old water rights were simply defined by source, priority date and diversion rate. Over time, the legislature and courts have made this original description of a water right more specific by the addition of other elements. Because of the increasing demand for water, it is important that the elements of a water right be standardized to allow for fair and efficient administration of the limited water supply. One (1) purpose of chapter 14, title 42, Idaho Code, is to establish, through an adjudication a uniform description for surface water rights, ground water rights and water rights which include storage.
(b) Because of the passage of time it is not possible to establish with any degree of certainty the undefined elements of a decreed or licensed water right as they existed on the date the right was established, because water delivery has occurred based upon the historic water use patterns and custom, and because attempts to define elements of a water right based upon unknown conditions in existence on the date of the establishment of the water right could result in significant impacts upon the claimant, the local economy and tax base, the legislature finds that it is in the public interest to provide a mechanism to decree previously undefined elements of existing water rights based upon conditions existing on the date of commencement of the adjudication provided the claimant is not exceeding any previously determined and recorded element of the decreed or licensed water right.
(2) If a licensed or decreed water right does not describe all of the elements of a water right required in section 42-1409, Idaho Code, the director shall include in his report recommendations for those elements not defined by the prior license or decree based upon the extent of beneficial use of the water right as of the date of the commencement of an adjudication.
[42-1427, added 1994, ch. 454, sec. 33, p. 1476; am. 1994, ch. 455, sec. 6, p. 1489.]
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.
[(42-1428) 1986, ch. 220, sec. 23, p. 582; am. and redesig. 1994, ch. 454, sec. 29, p. 1473.]
(1) As used in this section:
(a) "The Coeur d’Alene tribe water rights settlement agreement of 2026" or "agreement" means the Coeur d’Alene tribe water rights settlement agreement dated 2026, relating to CSRBA consolidated subcase No. 91-7755 in the CSRBA court.
(b) "CSRBA" means the Coeur d’Alene-Spokane river basin adjudication litigation before the CSRBA court, In re CSRBA, No. 49576.
(c) "CSRBA court" means the district court of the fifth judicial district of the state of Idaho, in and for the county of Twin Falls.
(2) The Coeur d’Alene tribe water rights settlement agreement of 2026 is hereby approved, ratified, and confirmed.
(3) The executive branch agencies or officers of the state with obligations under the Coeur d’Alene tribe water rights settlement agreement of 2026 shall execute and perform all actions consistent with this section that are necessary to implement the agreement.
[42-1430, added 2026, ch. 181, sec. 1, p. 822.]
The legislature of the state of Idaho hereby declares that the public health, safety and welfare require that the streams of this state and their environments be protected against loss of water supply to preserve the minimum stream flows required for the protection of fish and wildlife habitat, aquatic life, recreation, aesthetic beauty, transportation and navigation values, and water quality. The preservation of the water of the streams of this state for such purposes when made pursuant to this act is necessary and desirable for all the inhabitants of this state, is in the public interest and is hereby declared to be a beneficial use of such water. The legislature further declares that minimum stream flow is a beneficial use of water of the streams of this state for the purpose of protecting such waters from interstate diversion to other states or by the federal government for use outside the boundaries of the state of Idaho. Minimum stream flows as established hereunder shall be prior in right to any claims asserted by any other state, government agency, or person for out of state diversion. It is, therefore, necessary that authority be granted to receive, consider, approve or reject applications for permits to appropriate water of the streams of this state to such beneficial uses to preserve such water from subsequent appropriation to other beneficial uses under the provisions of chapter 2, title 42, Idaho Code.
[42-1501, added 1978, ch. 345, sec. 11, p. 891.]
Whenever used in this act, the terms:
(a) "Appropriate" or "appropriation" mean the identification of a beneficial use and place of in-stream use of the waters of a stream. It shall not be construed to require any kind of physical structure or physical diversion from the stream;
(b) "Board" means the Idaho water resource board;
(c) "Department" means the Idaho department of water resources;
(d) "Director" means the director of the Idaho department of water resources;
(e) "Stream" means any lake, spring, creek, stream, river or other natural body of standing or moving water which is subject to appropriation under the laws of the state of Idaho;
(f) "Minimum stream flow" means the minimum flow of water in cubic feet per second of time or minimum lake level in feet above mean sea level required to protect the fish and wildlife habitat, aquatic life, recreation, aesthetic beauty, navigation, transportation, or water quality of a stream in the public interest;
(g) "Unappropriated water" means water which is not subject to diversion and use under any prior existing water right established by diversion and application to a beneficial use or by application, permit or license on file or issued by the director under the provisions of chapter 2, title 42, Idaho Code, with a priority of water right date earlier than an application for appropriation of minimum stream flow filed under the provisions of this act.
[42-1502, added 1978, ch. 345, sec. 11, p. 892.]
Whenever the board desires to appropriate a minimum stream flow of the unappropriated waters of any stream, it shall submit an application to the director. Such application shall be made upon forms to be furnished by the director and shall include:
(a) The name of the stream and legal description of the point on the stream where the minimum stream flow is proposed to be appropriated and determined;
(b) The minimum stream flow proposed;
(c) The purpose for which the minimum stream flow appropriation is proposed to be made;
(d) The period of time or season of the year during which said appropriation is proposed; and
(e) Such other information as shall be required by the form furnished by the director.
Upon the receipt of an application filed under the provisions of this act, the director shall forward a copy thereof to the departments of fish and game, environmental quality, parks and recreation, and any other public entity likely to have an interest or knowledge in the matter. The director shall also prepare a notice describing the proposed appropriation of minimum stream flow and cause said notice to be published once each week in two (2) consecutive weekly issues of a newspaper published within the county where the appropriation of minimum stream flow is proposed, if there is such newspaper, otherwise in a newspaper of general circulation within the county. The director may also give other notice of the proposed appropriation in such manner and to such persons or organizations as he may determine. Such notice shall specify the time and place for a public hearing to be held concerning the proposed appropriation of minimum stream flow. Such hearing shall be held in accordance with the provisions of section 42-1701A(1) and (2), Idaho Code. The director shall have power to administer oaths and to require the attendance of such witnesses and the production of such books, records, and papers as he may desire at the hearing and for that purpose the director may apply to the district court for a subpoena for any witnesses or a subpoena duces tecum to compel the production of any books, records, or papers which shall be served and returned in the same manner as a subpoena in a civil case. In case of any disobedience or neglect to obey a subpoena or subpoena duces tecum it shall be the duty of the district court in any county of this state in which such disobedience, neglect, or refusal occurs, or any judge thereof, on application by the director, to compel obedience by proceedings for contempt as in the case of a subpoena issued by a regularly constituted court. Upon the conclusion of the hearings and completion of any investigation conducted by the director, he shall enter his findings in writing approving the application in whole, or in part, or upon conditions or rejecting said application. Approval of any such application must be based upon a finding that such appropriation of minimum stream flow:
(a) will not interfere with any vested water right, permit, or water right application with priority of right date earlier than the date of receipt in the office of the director of a complete application for appropriation of minimum stream flow filed under the provisions of this act;
(b) is in the public, as opposed to private, interest;
(c) is necessary for the preservation of fish and wildlife habitat, aquatic life, recreation, aesthetic beauty, navigation, transportation, or water quality of the stream;
(d) is the minimum flow or lake level and not the ideal or most desirable flow or lake level; and
(e) is capable of being maintained as evidenced by records of stream flows and water levels and the existing or future establishment of necessary gauging stations and bench marks.
A copy of the director’s findings shall be mailed to the board and to each person or organization who gave testimony in support of or in opposition to the proposed appropriation. The board or any person testifying at a hearing who is aggrieved by a decision of the director shall have the right to have that decision reviewed by the courts pursuant to section 42-1701A(4), Idaho Code. Approved applications shall be submitted to each legislature by the fifth legislative day of each regular session, and: (i) shall not become finally effective until affirmatively acted upon by concurrent resolution of the Idaho legislature; or (ii) except that if the legislature fails to act prior to the end of the regular session to which the application was submitted, the application shall be considered approved.
[42-1503, added 1978, ch. 345, sec. 11, p. 892; am. 1980, ch. 238, sec. 14, p. 544; am. 2001, ch. 103, sec. 80, p. 318.]
Any person, association, municipality, county, state or federal agency may, in writing, request that the board consider the appropriation of a minimum stream flow of the unappropriated waters of any stream. Said request shall be in writing and provide the same information required in the form provided for by section 42-1503, Idaho Code. The board shall consider said request within six (6) months after it is filed and may proceed to reject or accept the proposal. There shall be no right of review of any board decision rejecting a request under this section. If the board decides that the request has merit, the board shall proceed as provided in this act. The board may hold hearings in reaching its decision and shall notify the requesting party of its decision.
[42-1504, added 1978, ch. 345, sec. 11, p. 894.]
In his direction and control of the distribution of water from the streams of this state under the provisions of chapter 6, title 42, Idaho Code, the director shall consider any approved application for appropriation of minimum stream flow filed under the provisions of this act as a water right with priority date as of the date of receipt in the office of the director of a complete application. Water shall not be deemed to be available to fill any water right of later priority date if diversion of such water would result in a decrease in the flow of the stream or level of the lake below the minimum stream flow or minimum lake level specified in said approved application for appropriation of minimum stream flow at the locations described in said approved application.
[42-1505, added 1978, ch. 345, sec. 11, p. 894.]
(1) The water resource board is hereby authorized and directed to appropriate and hold in trust for the people of the state of Idaho a minimum stream flow water right in a designated reach of the Lemhi river in accordance with the provisions of this section. The minimum stream flow appropriation in the designated reach shall be in the amount of thirty-five (35) cfs from January 1 through December 31, provided that fifteen (15) cfs of the appropriation shall be subordinated to all diversions, including high waters or flood waters, authorized under the Lemhi river basin decree (Lemhi County Case No. 4948). The designated reach begins at water diversion L-6 located on the Lemhi river in the southeast quarter (1/4) of section twenty-four (24), township twenty-one (21) north, range twenty-two (22) east of the Boise meridian, and ends at the confluence of the Lemhi river with the Salmon river near the southwest corner of section thirty-two (32), township twenty-two (22) north, range twenty-two (22) east of the Boise meridian, Lemhi county.
(2) The water resource board shall appropriate the minimum stream flow water right authorized under this section in accordance with the provisions of section 42-1503, Idaho Code. In acting upon the application for permit, the director of the department of water resources need not determine that the appropriation is capable of being maintained based upon records of existing stream flows because it is anticipated that the water right will be maintained through operation of the water supply bank within the Lemhi river basin consistent with the provisions of section 42-1765A, Idaho Code.
(3) Upon the board’s filing of an application for permit to appropriate water as directed by this section, the director of the department of water resources is authorized and directed, on an interim basis pending final action on the application for permit, to distribute water under the filing in accordance with the doctrine of prior appropriation using a priority date as of the filing of the application for permit.
[42-1506, added 2001, ch. 373, sec. 1, p. 1309.]
(1) The water resource board is hereby authorized and directed to appropriate and hold in trust for the people of the state of Idaho a minimum stream flow water right in a designated reach of the Lemhi River in accordance with the provisions of this section. The minimum stream flow appropriation shall be in the amount of 420 c.f.s. at McFarland Campground located on the Lemhi River in the NWSE of Section 14, Township 17 North, Range 24 East, Boise Meridian. The elements of this water right shall include the following:
(a) This water right may be exercised only two (2) years out of every five (5) years. The five (5) year period shall be a rolling period.
(b) The exercise of the right shall be limited to a duration of three (3) days, during the March 15 to July 6 period of use. The three (3) day period shall be timed to occur as near as possible to the peak of Lemhi runoff.
(2) This right may not call against water rights with points of diversion from streams administered as separate streams pursuant to the Partial Decree pursuant to I.R.C.P. 54(b) of the Basin 74 High Flow General Provision approved by the SRBA District Court on January 2, 2006, except as to Lemhi Basin stream flow maintenance water rights appropriated pursuant to section 42-251, Idaho Code.
(3) The water resource board shall appropriate the minimum stream flow water right authorized under this section in accordance with the provisions of section 42-1503, Idaho Code. In acting upon the application for permit, the director of the department of water resources need not determine that the appropriation is capable of being maintained based upon records of existing stream flows because it is anticipated that the water right will be maintained through conditions on water rights acquired pursuant to section 42-251, Idaho Code.
(4) Upon the board’s filing of an application for permit to appropriate water as directed by this section, the director of the department of water resources is authorized and directed, on an interim basis pending final action on the application for permit, to distribute water under the filing in accordance with the doctrine of prior appropriation using a priority date as of the filing of the application for permit.
[42-1506A, added 2022, ch. 290, sec. 2, p. 924.]
(1) The water resource board is hereby authorized and directed to appropriate and hold in trust for the people of the state of Idaho minimum stream flow water rights for Big Timber, Bohannan, Canyon, and Hayden Creeks in accordance with the provisions of this section.
(a) The minimum stream flow for Big Timber Creek shall be 18 c.f.s. from March 15 to July 31 and 10 c.f.s. from August 1 to March 14 from the headwaters of Big Timber Creek in Section 30, Township 14 North, Range 25 East, Boise Meridian to its confluence with the Lemhi River in the southeast quarter of Section 20, Township 16 North, Range 26 East, Boise Meridian.
(b) The minimum stream flow appropriation for Bohannan Creek shall be 13 c.f.s. from March 15 to July 31 and 8.5 c.f.s. from August 1 to March 14 from the headwaters of Bohannan Creek in the northwest quarter of Section 19, Township 22 North, Range 24 East, Boise Meridian to its confluence with the Lemhi River in the northwest quarter of Section 33, Township 21 North, Range 23 East, Boise Meridian.
(c) The minimum stream flow for Canyon Creek shall be 16 c.f.s. from March 15 to July 31 and 4 c.f.s. from August 1 to March 14 from the headwaters of Canyon Creek in Government Lot 5, Section 18, Township 17 North, Range 27 East, Boise Meridian to its confluence with the Lemhi River in the northwest quarter of Section 28, Township 16 North, Range 26 East, Boise Meridian.
(d) The minimum stream flow for Hayden Creek shall be 60 c.f.s. from March 15 to July 31 and 13 c.f.s. from August 1 to March 14 from the headwaters of Hayden Creek in Section 14, Township 16 North, Range 22 East, Boise Meridian to its confluence with the Lemhi River in the southwest quarter, Section 21, Township 18 North, Range 24 East, Boise Meridian.
(2) In acting upon the applications for permit, the director of the department of water resources need not determine that the appropriation is capable of being maintained based upon records of existing stream flows because it is anticipated the water rights will be maintained through voluntary agreements between the Idaho water resource board and Basin 74 water users in accordance with Idaho law.
(3) The minimum stream flows provided for in this section shall be junior to all previously decreed, licensed, or permitted water rights. The minimum stream flows shall also be junior to all water right applications with a priority date before the effective date of this section and all Lemhi Basin stream flow maintenance water rights perfected pursuant to section 42-251, Idaho Code.
(4) Upon the board’s filing of applications for permit to appropriate water as directed by this section, the director of the department of water resources is authorized and directed, on an interim basis pending final action on the applications for permit, to distribute water under the filings in accordance with the doctrine of prior appropriation using a priority date as of the filing of the application for permit.
(5) These minimum stream flow applications for permit are in satisfaction of the local public interest requirement of section 42-203A(5)(e), Idaho Code, as it pertains to processing of water right applications with a priority date before the effective date of this section and on Lemhi Basin stream flow maintenance water rights filed pursuant to section 42-251, Idaho Code, on Big Timber, Bohannan, Canyon, and Hayden Creeks.
[42-1506B, added 2022, ch. 290, sec. 3, p. 924.]
(1) The legislature hereby establishes minimum stream flow water rights for the stream reaches identified by resolution of the Idaho water resource board, adopted February 8, 2005. The elements of the minimum stream flow water rights established by this section are as defined by the board’s resolution and the attachments thereto. The board shall hold the minimum stream flow water rights in trust for the people of the state of Idaho, and the board shall file claims for the rights in the Snake river basin adjudication. These minimum stream flow water rights shall have a priority date as of April 1, 2005, and shall be subordinated to future domestic, commercial, municipal, and industrial water uses and such other future uses as described in the December 17, 2004, resolution of the Idaho water resource board providing approval of the Snake River Water Rights Agreement of 2004 ("Mediator’s Term Sheet" dated April 20, 2004, and submitted on that date to the SRBA Court in SRBA Consolidated Subcase 03-10022 and SRBA Consolidated Subcase 67-13701, with all appendices to the document), as approved, ratified, and confirmed by the 108th Congress of the United States in the "Snake River Water Rights Act of 2004," Pub. L. No. 108-447 (H.R. 4818), 118 Stat. 3431 to 3441 (December 8, 2004).
(2) No fee shall be required in connection with the filing of claims in the Snake river basin adjudication for the minimum stream flow water rights established by this section.
(3) Any minimum stream flow water rights established by this section that are not capable of being maintained may be satisfied and maintained through operation of the water supply bank authorized by sections 42-1761 through 42-1765, Idaho Code, inclusive, and other available methods consistent with Idaho law.
(4) In the event the state decides to change any minimum stream flow water rights created by this section, it will provide notice of such change and consult with the Nez Perce tribe on a government-to-government basis as provided in the Snake River Water Rights Agreement of 2004. Provided however, nothing herein or in the Snake River Water Rights Agreement of 2004 shall be construed or interpreted to abridge, impair or limit the authority of the state of Idaho to create, modify or terminate any minimum stream flow water right established by this section.
(5) This section shall not become effective until the governor issues a proclamation certifying that all conditions for the effectiveness of the Snake River Water Rights Agreement of 2004 have been satisfied.
[42-1507, added 2005, ch. 150, sec. 1, p. 466.]
(1) Any person owning or controlling a flowing artesian well, which is not capped, equipped or furnished with such mechanical appliance as will readily control the flow of water from such well, shall be guilty of a misdemeanor and such well is hereby declared to be a common nuisance; and any person owning or controlling a flowing artesian well, which is capped, equipped or furnished with a mechanical appliance for arresting and preventing the flow of water therefrom, which cap, equipment or mechanical appliance is of a type that has not been approved by the director of the department of water resources, shall be guilty of a misdemeanor and such well is hereby declared to be a common nuisance: provided, however, that in cases where the waters of artesian wells are reservoired and controlled so that waste is not committed and a common nuisance created and where the pressure of water in a reservoir automatically causes wells to cease to flow, such mechanical contrivances may be dispensed with by obtaining the consent of the director of the department of water resources.
(2) Any person owning or controlling an artesian well shall maintain the well to prevent waste or contamination of ground waters through leaky casings, pipes, fittings, valves, pumps, seals or through leakage around the outside of the casings, whether the leakage is above or below the land surface.
(3) The owner of the land on which the well is located shall be deemed to own the well unless a deed, covenant, contract, easement, or other documentation acceptable to the director is available to demonstrate that the well is owned by another.
(4) If a ground water management district created pursuant to chapter 51, title 42, Idaho Code, has adopted and is implementing a plan for the repair of leaking artesian wells acceptable to the director of the department of water resources, then the director of the department of water resources will not take any administrative or judicial action to require repair of a well within the ground water management district if the person owning the well is an active participant in the ground water management district.
[(42-1601) 1921, ch. 196, sec. 1, p. 399; I.C.A., sec. 41-1401; am. 1987, ch. 347, sec. 10, p. 753; am. 1995, ch. 294, sec. 1, p. 1036.]
It shall be unlawful for the owner, tenant, or occupant of the land upon which such well is situated to cause, permit, or suffer, such common nuisance, or suffer or permit it to remain or continue; and it shall be unlawful for any person owning, possessing or occupying any land, upon which is situated an artesian well, to cause, suffer or permit the water to unnecessarily flow from such well or to go to waste: provided, however, that it shall be lawful for any such person to insert a stop and waste cock, not exceeding one (1) inch in diameter, in the piping of such well and to take and use water therefrom through such stop and waste cock at any time for household, stock or domestic purposes.
[(42-1602) 1921, ch. 196, sec. 2, p. 399; I.C.A., sec. 41-1402.]
Every person referred to in section 42-1602 shall apply to the director of the department of water resources for the approval of any installed or proposed mechanical device for controlling the flow of water from such artesian well; and in such application shall describe the cap, equipment or mechanical appliance, with which such well is equipped or with which it is proposed to equip any such well, and shall change, alter or install only such equipment as shall be approved by the director of the department of water resources.
[(42-1603) 1921, ch. 196, sec. 3, p. 399; I.C.A., sec. 41-1403.]
For the purposes of this chapter, an artesian well is defined as any well, as defined in subsection (b) of section 42-230, Idaho Code, which encounters pressurized ground water or low temperature geothermal resource under sufficient head to rise above the elevation at which it was first encountered whether or not the fluid flows at land surface. If the fluid level stands above land surface, the well is a flowing artesian well.
[(42-1604) 1921, ch. 196, sec. 4, p. 399; I.C.A., sec. 41-1404; am. 1987, ch. 347, sec. 11, p. 754.]
(1) When the director of the department of water resources determines that any person is in substantial violation of any provision of this chapter or any rule, condition of approval or order issued or promulgated pursuant to this chapter, the director may commence an administrative enforcement action by issuing a written notice of violation in accordance with the provisions of section 42-1701B, Idaho Code. The director may petition the district court for injunctive relief in order to prevent damage pending the outcome of enforcement proceedings before the director.
(2) Criminal penalties. Any person who willfully or negligently violates any of the provisions of this chapter shall, for each offense, be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than three hundred dollars ($300) and not more than one thousand dollars ($1,000). Each day upon which such violation occurs shall constitute a separate violation.
[(42-1605) 1921, ch. 196, sec. 5, p. 399; I.C.A., sec. 41-1405; am. 1987, ch. 347, sec. 12, p. 754; am. 1993, ch. 216, sec. 34, p. 617; am. 1998, ch. 173, sec. 7, p. 606.]
(1) The director of the department of water resources shall initiate a program to inventory and locate artesian wells throughout the state.
(2) The director of the department of water resources shall plug abandoned artesian wells or artesian wells where the owner cannot be ascertained.
(3) For artesian wells which are not in compliance with Idaho minimum well construction standards, the owner shall be required to have the well repaired in compliance with Idaho minimum well construction standards promulgated pursuant to section 42-238, Idaho Code, so as to preclude the wasting or commingling of water. The repairs shall be paid for by the owner of the well and, if repairs are not made within a maximum of one (1) year following notification, the director of the department of water resources may order the owner to plug the well. The director upon good cause shown may grant an additional time period not in excess of two (2) years for the owner to make repairs of the well. If the well is not plugged within thirty (30) days of the order, or other longer time period as provided in the order, the director may plug or cause the well to be plugged at the owner’s expense.
(4) The director of the department of water resources may implement a cost-sharing program to assist owners of wells which have been ordered repaired or plugged pursuant to subsection (3) of this section. Any cost-share provided by the department shall be limited to fifty percent (50%) of the total cost to repair or plug the well to bring it into compliance with Idaho minimum well construction standards. Cost-share shall be based on an applicant’s ability to pay or ability to obtain other funding and the amount of money available for this purpose.
(5) Any person owning or controlling an artesian well which has been ordered repaired or plugged by the director of the department of water resources pursuant to subsection (3) of this section shall be liable for the costs of the repair or plugging if it was undertaken by the department of water resources. All moneys owed under the provisions of this section shall be paid to the director. The director shall charge interest on the amount owed in an amount no greater than twelve percent (12%) per annum. The director shall deposit all moneys collected into the water administration account. Moneys owed pursuant to the provisions of this section shall be collected in a civil action brought in the district court in accordance with subsection (6) of this section.
(6) Any person aggrieved by a final order of the director entered pursuant to the provisions of this section may appeal to the district court within twenty-eight (28) days of the issuance of the order. The appeal shall be heard and determined in accordance with chapter 52, title 67, Idaho Code. The director through the attorney general may petition the district court for injunctive relief or a temporary restraining order to prevent irreparable damage pending the outcome of proceedings before the director pursuant to the provisions of this section. The director through the attorney general may commence a civil action in the district court to enforce the provisions of any final order of the director issued pursuant to the provisions of this section.
[42-1607, added 1987, ch. 347, sec. 13, p. 756; am. 1993, ch. 216, sec. 35, p. 618; am. 2019, ch. 215, sec. 1, p. 653.]
(1) There is hereby created the department of water resources, which shall, for the purposes of section 20, article IV, of the constitution of the state of Idaho, be an executive department of the state government.
(2) The executive and administrative authority of the department, except such authority as is specifically assigned by law to the water resource board, shall be vested in a director of the department of water resources who shall be: a licensed civil or agricultural engineer with not less than five (5) years of experience in the active practice of such profession; a registered geologist with not less than five (5) years of experience in the active practice of hydrology; or a hydrologist holding a bachelor’s or advanced degree in hydrology from a college or university accredited by a nationally recognized accrediting organization and with not less than five (5) years of experience in surface water and ground water modeling, water delivery and water measurement. The director of the department of water resources shall also demonstrate experience and expertise in interpreting and applying Idaho water law and shall be familiar with irrigation and other water use practices in Idaho.
(3) The director may delegate such duties as are imposed upon him by law to an employee of the department of water resources whenever in the opinion of the director, such delegation is necessary for the efficient administration of his duties.
(4) The director shall organize the department into such divisions and other administrative subunits as may be necessary in order to efficiently administer the department. All employees of the department, except the director, shall be selected and appointed by the director in conformance with the provisions of chapter 53, title 67, Idaho Code.
(5) The director and/or employees of the department of water resources may make reasonable entry upon any lands in the state for the purpose of making investigations and surveys, or for other purposes necessary to carry out the duties imposed by law.
(6) (a) Any authorization or order of the Idaho public utilities commission, under the provisions of section 61-328, Idaho Code, approving the sale, assignment or transfer of hydropower water rights used in the generation of electric power shall be issued only upon such conditions as the director of the department of water resources shall require as necessary to prevent any change in use of water under the water rights held for hydropower purposes that would cause injury to any water rights existing on the date of the sale, assignment or transfer. Any such conditions shall ensure that the public interest, as it pertains to the use of water under the hydropower water rights, will not be adversely affected. Conditions, if any, imposed by the director shall be subject to review under section 42-1701A(4), Idaho Code.
(b) Subsection (6)(a) of this section may be satisfied by a written agreement between the holder of a water right held for hydropower purposes and the governor, which agreement has been ratified by the legislature of the state of Idaho. The agreement between the governor and the Idaho power company dated October 15, 1984, and ratified by the legislature of the state of Idaho pursuant to section 42-203B, Idaho Code, and the subordination provisions relating to the Idaho power company’s water rights satisfy subsection (6)(a) of this section.
[(42-1701) 1895, p. 215, sec. 7; reen. 1899, p. 282, sec. 6; reen. R.C., sec. 154; reen. C.L. 126:7; C.S., sec. 2983; I.C.A., sec. 41-1501; am. 1974, ch. 20, sec. 4, p. 533; am. 2000, ch. 224, sec. 3, p. 620; am. 2014, ch. 103, sec. 1, p. 304.]
(1) All hearings required by law to be held before the director of the department of water resources shall be conducted in accordance with the provisions of chapter 52, title 67, Idaho Code, and rules of procedure promulgated by the director.
(2) The director, in his discretion, may direct that a hearing be conducted by a hearing officer appointed by the director. In such event, the hearing officer shall have the duty to make a complete record of the evidence presented and duly received at the hearing and to prepare a recommended or preliminary order in accordance with chapter 52, title 67, Idaho Code, and rules of procedure promulgated by the director.
(3) Unless the right to a hearing before the director or the water resource board is otherwise provided by statute, any person aggrieved by any action of the director, including any decision, determination, order or other action, including action upon any application for a permit, license, certificate, approval, registration, or similar form of permission required by law to be issued by the director, who is aggrieved by the action of the director, and who has not previously been afforded an opportunity for a hearing on the matter shall be entitled to a hearing before the director to contest the action. The person shall file with the director, within fifteen (15) days after receipt of written notice of the action issued by the director, or receipt of actual notice, a written petition stating the grounds for contesting the action by the director and requesting a hearing. The director shall give such notice of the petition as is necessary to provide other affected persons an opportunity to participate in the proceeding. The hearing shall be held and conducted in accordance with the provisions of subsections (1) and (2) of this section. Judicial review of any final order of the director issued following the hearing shall be had pursuant to subsection (4) of this section.
(4) Any person who is aggrieved by a final decision or order of the director is entitled to judicial review. The judicial review shall be had in accordance with the provisions and standards set forth in chapter 52, title 67, Idaho Code.
(5) The director shall not issue an order establishing a new or revised methodology for determining material injury under the rules for conjunctive management of surface and ground water resources without first giving affected persons notice and an opportunity to request a hearing in accordance with section 67-5242, Idaho Code, prior to issuance of such order, except in emergency proceedings under section 67-5247, Idaho Code, or informal disposition under section 67-5241, Idaho Code. Any final order issued pursuant to this subsection shall be issued no later than December 1 prior to the year such order takes effect. If a hearing is held pursuant to this subsection, any person aggrieved by the final order shall not be entitled to a hearing as provided in subsection (3) of this section. This subsection shall not apply to any orders that implement or apply the methodology steps for purposes of conjunctive water right administration.
[42-1701A, added 1980, ch. 238, sec. 1, p. 526; am. 1993, ch. 216, sec. 36, p. 619; am. 1994, ch. 450, sec. 2, p. 1435; am. 2003, ch. 138, sec. 1, p. 403; am. 2025, ch. 128, sec. 1, p. 662.]
(1) Authority to commence actions. The director of the department of water resources is authorized and may commence and pursue enforcement actions to remedy the designated violations set out in title 42, Idaho Code.
(2) Notice. When the director commences an administrative enforcement action the notice of violation shall be served upon the alleged violator in person or by certified mail. The notice of violation shall identify the alleged violation and shall specify each provision of the designated chapter, rule, permit, condition of approval or order which has been violated. The notice of violation shall state the remedy, including any demand to cease and desist, restoration and mitigation measures, and the amount of any civil penalty the director seeks for redress of the violation. Factors the director may consider in seeking the appropriate remedy include the impact of the violation and whether the violation was willful, a repeat violation for which the violator had been given a prior written warning, or the violator has otherwise refused to comply with the department’s lawful directives. The notice of violation shall inform the person to whom it is directed of an opportunity to confer with the director or the director’s designee in a compliance conference concerning the alleged violation.
(3) Response. A written response may be required within fourteen (14) days of the receipt of the notice of violation by the person to whom it is directed. If a recipient of a notice of violation contacts the department within fourteen (14) days of the receipt of the notice, the recipient shall be entitled to a compliance conference. The conference shall be held within twenty-one (21) days of the receipt of the notice unless a later date is agreed upon between the parties. If a compliance conference is not requested, the director may proceed with a civil enforcement action as provided in this section.
(4) Compliance conference and consent order. The compliance conference shall provide an opportunity for the recipient of a notice of violation to explain the circumstance of the alleged violation and, where appropriate, to present a proposal for remedying the damage caused by the violation and assuring future compliance. If the recipient and the director agree on a plan to remedy damage caused by the alleged violation and to assure future compliance, they may enter into a consent order formalizing their agreement. The consent order may include a provision providing for payment of any agreed civil penalty. The consent order shall be effective immediately upon signing by both parties and shall preclude a civil enforcement action for the same alleged violation. If a party does not comply with the terms of the consent order, the director may seek and obtain in any appropriate district court, specific performance of the consent order and other relief as authorized by law. If the parties cannot agree to a consent order within fifty-six (56) days after the receipt of the notice of violation, or if the recipient does not request a compliance conference, the director may commence and prosecute a civil enforcement action in the district court in accordance with this section.
(5) Civil enforcement actions.
(a) The director may initiate a civil enforcement action through the attorney general as provided in this section. Civil enforcement actions shall be commenced and prosecuted in the district court in and for the county in which the alleged violation occurred, and may be brought against any person who is alleged to have substantially violated any provision of title 42, Idaho Code, or any rule promulgated pursuant to that title. The action may be brought to compel compliance with provisions of title 42, Idaho Code, or rules promulgated pursuant to that title. The director shall not be required to prosecute an administrative enforcement action before initiating a civil enforcement action.
(b) Nothing in this section shall preclude employees of the department designated by the director from issuing Idaho uniform citations or written administrative orders directing persons to cease and desist as authorized by law.
(c) If the person who is the subject of the notice of violation fails to cease and desist the activity or activities constituting the alleged violation within the time limits set in the notice of violation, the director may seek, by and through the attorney general, injunctive relief in the district court pending the outcome of the administrative enforcement action.
(d) In an action brought against a person for diverting water without having obtained a valid water right to do so, the director need not allege or prove that irreparable injury to the state or to other water users will occur should the preliminary injunction not be issued or that the remedy at law is inadequate, and the preliminary injunction or permanent injunction shall issue without those allegations and without that proof.
(6) Penalties.
(a) Any person determined in a judicial civil enforcement action to have substantially violated any designated provision of title 42, Idaho Code, or any rule promulgated pursuant to that title, shall be liable for a civil penalty not to exceed ten thousand dollars ($10,000) per violation or one hundred fifty dollars ($150) per day for a continuing violation, whichever is greater; except that persons determined to be in violation of section 42-351, Idaho Code, shall be liable for a civil penalty not to exceed:
(i) For nonirrigation uses, fifty dollars ($50.00) per one-tenth (0.1) cubic feet per second of water or part thereof diverted per calendar day, or fifty dollars ($50.00) per two tenths (0.2) of an acre foot of water or part thereof diverted to storage, up to a maximum penalty of fifty thousand dollars ($50,000) per year for water illegally used or diverted;
(ii) For irrigation uses, three hundred dollars ($300) annually for each acre irrigated, in whole or in part, by the illegal use or diversion.
(b) Civil penalties shall not be assessed for violations that have occurred more than twelve (12) months prior to the issuance of the notice of violation. The court shall determine the amount of the penalty based upon the willfulness of the violation, the economic value obtained by the violator and the damage to public resources and other water right holders. A method of recovery of the penalty shall be a civil enforcement action in and for the county where the violation occurred.
(c) All civil penalties collected under this section shall be paid into the water right enforcement account established pursuant to section 42-1778, Idaho Code.
(d) Parties to an administrative enforcement action may agree to a civil penalty as provided in this subsection.
(7) No action taken pursuant to this section shall relieve any person from any civil liability and damages that may exist for injury or damage resulting to others.
(8) Upon request of the director, it shall be the duty of the attorney general to institute and prosecute civil enforcement actions pursuant to this section.
[42-1701B, added 1998, ch. 173, sec. 8, p. 607; am. 2003, ch. 165, sec. 2, p. 468.]
(1) If the director of the department of water resources becomes aware of water use that exceeds the authorized limits of an appurtenant water right for domestic purposes or uses as defined in section 42-111, Idaho Code, regardless of when the use was established, the director may:
(a) Notify the property owner, in writing, of the alleged excess use; and
(b) Provide the property owner ninety (90) days to remedy the excess use or provide information that the water use does not exceed authorized limits of the appurtenant water right for domestic purposes or uses.
(2) If, after notification by the director pursuant to subsection (1) of this section, the property owner fails to remedy the excess use or to provide information that the use does not exceed authorized limits within the time prescribed and to the director’s satisfaction, then the director shall issue a notice of violation to the property owner, identifying the information supporting the determination of excess use.
(3)(a) Any person to whom a notice of violation has been issued pursuant to subsection (2) of this section shall be liable for a civil penalty pursuant to this section.
(i) For excess irrigation, a penalty of five hundred dollars ($500) for every one-tenth (0.1) of an acre in excess irrigation above the authorized limits shall be assessed.
(ii) For excess use other than irrigation, the lesser of the following shall be assessed:
One hundred dollars ($100) for every day water is diverted at a rate that exceeds the maximum authorized diversion rate; or
One hundred dollars ($100) for every acre-foot diverted in excess of the maximum authorized annual diversion volume.
(b) Penalties shall be renewed each year until the excess use has been remedied to the director’s satisfaction but shall not exceed five thousand dollars ($5,000) in any given year.
(4) The director may request that the county in which the property is located collect the penalty for excess use. If the county agrees to collect the penalty:
(a) The director shall provide the county with a copy of the notice of violation issued pursuant to this section; and
(b) The county shall retain half of the penalty proceeds and deliver the other half to the director.
(5) Unpaid penalties shall be filed as a lien against the property until paid in full.
(6) Once a penalty has been assessed for a particular irrigation season, as provided in this section, it shall be due and payable even if the excess use is subsequently resolved.
[42-1701C, added 2025, ch. 129, sec. 4, p. 665.]
The director shall, free of charge, give any information desired by any person as to the proper method of measuring water, or of constructing an apparatus for such measurement, upon proper application being made; and shall give special instructions to all watermasters as to measurement of water so as to secure a just distribution of the same.
[(42-1702) 1895, p. 215, sec. 12; reen. 1899, p. 282, sec. 11; reen. R.C., sec. 157; reen. C.L. 126:8; C.S., sec. 2984; I.C.A., sec. 41-1502; am. 1974, ch. 20, sec. 5, p. 533.]
The director may require, and shall receive, from the attorney general of the state, advice upon any question of public interest arising in the performance of duties under this chapter, which advice shall be in writing when so desired. The director may employ counsel or may retain private counsel.
[(42-1703) 1895, p. 215, sec. 13; reen. 1899, p. 282, sec. 12; reen. R.C., sec. 158; reen. C.L. 126:9; C.S., sec. 2985; I.C.A., sec. 41-1503; am. 1974, ch. 20, sec. 6, p. 533.]
The director shall make and render to the governor, annually, or oftener, if required, full and true reports of the work performed by the department, which reports shall contain any recommendations he may have to make in reference to legislation affecting the department.
[(42-1704) 1895, p. 215, sec. 14; reen. 1899, p. 282, sec. 13; reen. R.C., sec. 159; reen. C.L. 126:10; C.S., sec. 2986; I.C.A., sec. 41-1504; am. 1974, ch. 20, sec. 7, p. 533.]
The director of the department of water resources is hereby authorized to cooperate with the United States geological survey in the investigation of the water resources and gauging the flow of the streams of the state of Idaho so long as the federal government is engaged in making such measurements and surveys. To that end he is hereby authorized to make the necessary contract or contracts with the director of the United States geological survey whereby a part of the expenses incurred in the making of such surveys, gaugings and measurements may be paid by the state of Idaho, to an amount not to exceed the appropriation hereinafter made. Said contract or contracts shall provide among other things, that the United States geological survey shall furnish to the department of water resources complete and detailed reports of the results obtained by said survey, gaugings and measurements and copies of such original records, plats, notes and other data as shall be required by the department. Such reports, plats, notes, records and data shall be and become a part of the permanent records of the office of the department. All claims for expenses incurred or made hereunder shall be filed, examined, and when allowed, paid out of the state treasury in the same manner that other claims against the state are made, filed, examined and paid.
[(42-1705) 1919, ch. 173, sec. 1, p. 548; C.S., sec. 2987; I.C.A., sec. 41-1505; am. 1974, ch. 20, sec. 8, p. 533.]
The director of the department of water resources shall make or cause to be made careful measurements of the flow in cubic feet per second of the various streams in the state whose waters are, or are likely to be, appropriated and used, through that part of the season which he may deem necessary or expedient, to afford information for irrigating purposes, commencing with those streams most used for irrigation. The director shall collect facts and make surveys to ascertain suitable locations for reservoirs upon streams where such reservoirs may be possible and beneficial, and shall, as far as possible, determine the cost of constructing such reservoirs, and all other facts possible in regard to quantity of water possible to be stored, the character and extent of land that may be reclaimed by the water from such reservoirs, together with all other information possible that may bear upon the subject. The director shall become familiar with the waterways and irrigable land in the state and the needs of the state as to irrigation matters, and all records of any such information shall be the property of the state and open to public inspection. The director shall keep full and complete records of all measurements of streams, surveys, examinations or other valuable information that may come into his possession concerning any of the duties of the department, and shall furnish reasonable information in regard to such measurements or surveys to the newspapers of the state upon proper request.
In addition to the duties prescribed in this chapter, the director shall perform such other professional duties as may be required of him by the governor, and shall give advice on any matters of a professional nature, when called upon by the governor to do so.
[(42-1706) 1895, p. 215, sec. 15; reen. 1899, p. 282, sec. 14; reen. R.C., sec. 160; reen. C.L. 126:11; C.S., sec. 2988; I.C.A., sec. 41-1506; am. 1974, ch. 20, sec. 9, p. 533.]
(1) If any person or persons shall report in writing to the director that any dam, artificial barrier or embankment that stores or impounds water, except for those excluded in section 42-1711(b)(1) through (4), Idaho Code, or mine tailings impoundment structure used for storing tailings slurry is unsafe and endangering life or property, then it shall be the duty of the director to inspect, or cause to be inspected, such dam, artificial barrier or embankment or mine tailings impoundment structure as soon as possible, and, if he considers it unsafe, to proceed as provided in this chapter.
(2) If the director determines that the failure of any artificial barrier or embankment that stores or impounds water, except for those excluded in section 42-1711(b)(1) through (4), Idaho Code, would pose a threat of direct loss of life or significant property damage, the director shall regularly inspect and regulate it as a dam as provided in this chapter.
[(42-1709) 1895, p. 215, sec. 11; reen. 1899, p. 282, sec. 10; reen. R.C., sec. 156; reen. C.L. 126:14; C.S., sec. 2991; I.C.A., sec. 41-1509; am. 1974, ch. 20, sec. 10, p. 533; am. 1978, ch. 309, sec. 1, p. 786; am. 2016, ch. 206, sec. 1, p. 578.]
It is the intent of the legislature by this act to provide for the regulation of construction, maintenance and operation of all dams, reservoirs and mine tailings impoundment structures exclusively by the state to the extent required for the protection of public safety. All dams, reservoirs and mine tailings impoundment structures in the state are under jurisdiction of the department of water resources. The department of water resources, under the police power of the state, shall supervise the construction, enlargement, alteration, repair, maintenance, operation and removal of dams, reservoirs and mine tailings impoundment structures for the protection of life and property. The department of water resources may enter into agreements with other state agencies having jurisdiction over water storage structures to limit duplication of inspection, review and regulation of such structures.
[42-1710, added 1969, ch. 280, sec. 1, p. 833; am. 1974, ch. 20, sec. 11, p. 533; am. 1978, ch. 309, sec. 2, p. 786; am. 2000, ch. 78, sec. 1, p. 164.]
Unless the context otherwise requires, the following definitions govern the construction of this chapter.
(a) "Department" means the department of water resources.
(b) "Dam" means any artificial barrier or embankment, together with appurtenant works, constructed for the purpose of storing water or that stores water, which is ten (10) feet or more in height from the natural bed of the stream or watercourse at the downstream toe of the barrier, as determined by the department, or from the lowest elevation of the outside limit of the barrier, if it is not across a stream channel or watercourse, to the maximum water storage elevation, and has or will have an impounding capacity at maximum water storage elevation of fifty (50) acre-feet or more. The following are not included as regulated dams or are not considered dams for the purposes of sections 42-1710 through 42-1721, Idaho Code:
(1) Barriers in a canal used to raise or lower water therein or divert water therefrom.
(2) Fills or structures determined by the director to be designed primarily for highway or railroad traffic.
(3) Fills, retaining dikes or structures less than twenty (20) feet in height, which are under jurisdiction of the department of environmental quality or the department of agriculture, determined by the director of the department of water resources to be designed primarily for retention or treatment of municipal, livestock, or domestic wastes, or sediment and wastes from produce washing or food processing plants.
(4) Levees that store water regardless of storage capacity.
(c) "Levee" means a retaining structure alongside a natural lake which has a length that is two hundred (200) times or more greater than its greatest height measured from the lowest elevation of the toe to the maximum crest elevation of the retaining structure.
(d) "Reservoir" means any basin which contains or will contain the water impounded by a dam.
(e) "Owner" includes any of the following who own, control, operate, maintain, manage, or propose to construct a dam, reservoir or mine tailings impoundment structure:
(1) The state of Idaho and its departments, agencies, institutions and political subdivisions;
(2) The United States of America and any of its departments, bureaus, agencies and institutions; provided that the United States of America shall not be required to pay any of the fees required by section 42-1713, Idaho Code, and shall submit plans, drawings and specifications as required by section 42-1712, Idaho Code, for information purposes only;
(3) Every municipal or quasi-municipal corporation;
(4) Every public utility;
(5) Every person, firm, association, organization, partnership, business trust, corporation or company;
(6) The duly authorized agents, lessees, or trustees of any of the foregoing; or
(7) Receivers or trustees appointed by any court for any of the foregoing.
(f) "Alterations," "repairs," or either of them, mean only such alterations or repairs as may directly affect the safety of the dam, reservoir or mine tailings impoundment structure, as determined by the department.
(g) "Enlargement" means any change in or addition to an existing dam, reservoir or mine tailings impoundment structure, which raises or may raise the water storage elevation of the water impounded by the dam or mine tailings slurry impounded by the mine tailings impoundment structure.
(h) "Maximum water storage elevation" means the maximum design elevation of water surface which can be impounded by the dam or reservoir.
(i) "Storage capacity" means the total volume of storage at the maximum water storage elevation.
(j) "Days" used in establishing deadlines means calendar days including Sundays and holidays.
(k) "Certificate of approval" means a certificate issued by the director for all dams or mine tailings impoundment structures listing restrictions imposed by the director, and without which no new dams shall be allowed to impound water or mine tailings impoundment structures shall be allowed to impound mine tailings slurry.
(l) "Mine tailings impoundment structure" means any artificial embankment which is or will be more than thirty (30) feet in height measured from the lowest elevation of the toe to the maximum crest elevation constructed for the purpose of storing mine tailings slurry.
(m) "Lift construction" means mine tailings impoundment structure enlargement by raising the elevation of the structure on a continuous or recurring basis. Such practice will be considered under construction until the structure reaches its final crest elevation.
(n) "Mine tailings impoundment elevation" means the maximum elevation of stored mine tailings which can be obtained by the impounding structure.
(o) "Mine tailings slurry" means all slurry wastes from a mineral processing or mining operation.
(p) "Mine tailings storage capacity" means the total storage volume of the impounding area when filled with tailings to the maximum designed storage elevation.
(q) "Hazard" means the potential consequences to downstream life and property resulting from a dam failure and uncontrolled release of water, exclusive of the size or the physical condition of the dam or mine tailings impoundment structure. Hazard classifications shall be assigned to new and existing dams or mine tailings impoundment structures based on the severity of failure consequences to life and property.
(r) "Professional engineer" means a person who has been duly licensed as a professional engineer by the Idaho board of licensure of professional engineers and professional land surveyors under chapter 12, title 54, Idaho Code.
(s) "Artificial barrier or embankment" means any structure constructed to impede or obstruct the flow of water.
[42-1711, added 1969, ch. 280, sec. 2, p. 833; am. 1970, ch. 73, sec. 1, p. 187; am. 1974, ch. 20, sec. 12, p. 533; am. 1978, ch. 309, sec. 3, p. 786; am. 1987, ch. 98, sec. 1, p. 192; am. 1988, ch. 308, sec. 1, p. 963; am. 2000, ch. 78, sec. 2, p. 164; am. 2001, ch. 103, sec. 81, p. 320; am. 2004, ch. 180, sec. 1, p. 564; am. 2016, ch. 206, sec. 2, p. 578.]
Owners who shall desire to construct, or enlarge, or alter or repair, meaning only such alterations or repairs as may affect the safety of the dam or reservoir, any dam, for the purpose of storing or appropriating or diverting any of the waters of this state, when the same is to be ten (10) feet or more in height and having a storage capacity of fifty (50) acre-feet or more, except as otherwise in this chapter provided, shall submit duplicate plans, drawings and specifications of the proposed work to the director, and construction of a new dam or enlargement, or alteration or repairs shall not be commenced until the owner has applied for and obtained written approval of the plans, drawings and specifications.
Owners of dams under construction on the effective date of this legislation and for which plans, drawings and specifications are required but have not been approved on or before the effective date of this legislation shall submit such plans, drawings and specifications for approval, with the fee established hereinafter. The director shall give notice to owners to submit plans, drawings and specifications, and failure to submit plans, drawings and specifications for approval within thirty (30) days of the date of mailing the notice shall be punishable as provided in this act, and construction shall be stopped upon issuance of an order by the director unless for good cause shown as determined by the director further time is allowed. The notice and/or order provided for in this paragraph may be given by certified mail and a return receipt signed by the owner or responsible company shall constitute prima facie evidence of service.
Upon receipt of the plans, drawings and specifications, the director shall give consideration thereto and shall approve or disapprove the same within the time provided in this section, and if he approves them, the director shall affix his approval thereto and return one (1) copy of each such plans, drawings and specifications, with his approval, to the party or parties proposing to construct the works.
Plans, drawings and specifications submitted to the director complete with fees shall be approved or disapproved in no more than sixty (60) days and in no less than fourteen (14) days after receipt. Defective plans, drawings and specifications made in a bona fide attempt to conform to the law and rules of the water resource board shall not be rejected but notice of defect shall be sent to the owner by certified mail. If within thirty (30) days of the date of mailing the notice the owner does not file amended and perfected plans, drawings and specifications, the plans, drawings and specifications shall be rejected and canceled unless for good cause shown the director allows the owner further time.
The construction of all dams under plans, drawings and specifications approved by the director shall be pursued with reasonable diligence to completion. In the event that an owner fails to commence actual construction and maintain reasonable construction progress of the dam under the plans, drawings and specifications approved by the director prior to or after the effective date of this act, such approval may be voided by the director one (1) year after such approval. Notice of the intent to void any such approval shall be sent by the director to the owner by certified mail and said owner shall be allowed thirty (30) days within which to show cause why such approval should not be voided. The director may grant additional time within which to commence the construction under plans, drawings and specifications approved by the director upon a showing of reasonable cause. Plans, drawings and specifications for which approval has become void must be resubmitted for approval, with the fee therefor as hereafter provided, prior to commencing construction of any such dam.
The plans, drawings and specifications shall include the following information:
(a) The name and address of the owner.
(b) The location, type, size and height of the proposed dam or reservoir and appurtenant works.
(c) The storage capacity of the reservoir.
(d) Such other pertinent information as the director may require including the following:
(1) Data concerning subsoil and foundation conditions and materials entering into construction of the dam or reservoir.
(2) Investigations of, and reports on subsurface conditions involving such matters as exploratory pits, trenches, and adits, drilling, coring, geophysical surveys, tests to determine leakage rates, and physical tests to measure in place the properties and behavior of foundation materials at the dam or reservoir site.
(3) Investigation of and reports on the geology of the dam or reservoir site and its vicinity, possible geological hazards, availability and quality of construction materials, and other pertinent factors.
The plans, drawings and specifications shall be of such character and size setting forth such pertinent details and dimensions and in such form as the director requires. Plans, drawings and specifications which are submitted to the department shall be prepared by or under the direction of a professional engineer and authenticated by him as provided in section 54-1215, Idaho Code.
Where said dam is, in the opinion of the director, not of sufficient importance to have the provisions of the section apply to such dam, then the director shall have power, upon written application, to suspend the provisions of this section in regard to such dam.
The director shall prepare design and construction criteria for artificial barriers or embankments that store water, that are not dams as defined in this chapter, and shall supply such criteria upon request to any interested person to aid in constructing such artificial barriers or embankments. The use of such criteria shall in no way relieve the owner of responsibility for adequacy of design and construction procedures, nor be the basis of liability for any city or county that grants a permit related to construction of the artificial barrier or embankment pursuant to the provisions of chapter 65, title 67, Idaho Code.
[42-1712, added 1969, ch. 280, sec. 3, p. 833; am. 1974, ch. 20, sec. 13, p. 533; am. 2004, ch. 180, sec. 2, p. 566; am. 2016, ch. 206, sec. 3, p. 580.]
Fees provided for in this chapter shall be required of all enumerated in the definition of owner. Fees for an enlargement to an existing dam or mine tailings impoundment structure shall be based upon the increase in storage capacity or tailings storage capacity. Fees for alterations or repairs of an existing dam or mine tailings impoundment structure shall be based on an estimate, made by the director, of costs of inspections to be made, however, in no case shall such fees exceed that which would be required by the fee schedule for construction of the dam or mine tailings impoundment structure.
The fee for construction of a dam or mine tailings impoundment structure, or for enlarging an existing dam or mine tailings impoundment structure, shall be two hundred dollars ($200) plus the following amount:
(a) For one thousand (1,000) acre-feet capacity or less, ten dollars ($10.00) for each ten (10) acre-feet or part thereof.
(b) For over one thousand (1,000) acre-feet capacity but not exceeding ten thousand (10,000) acre-feet capacity, one thousand dollars ($1,000) plus one dollar ($1.00) for each ten (10) acre-feet or part thereof over the first one thousand (1,000) acre-feet capacity.
(c) For storage in excess of ten thousand (10,000) acre-feet, one thousand nine hundred dollars ($1,900) plus twenty cents (20¢) for each ten (10) acre-feet or part thereof over the first ten thousand (10,000) acre-feet capacity. In no case, however, shall the fee be more than six thousand dollars ($6,000).
All plans, drawings and specifications shall not be considered by the department until the filing fee is received. All moneys received by the department under the provisions of this chapter shall be deposited in the water administration fund created under section 42-238a, Idaho Code, and shall be available to the department in carrying out the provisions of this chapter. Fees submitted shall not be refunded.
[42-1713, added 1969, ch. 280, sec. 4, p. 833; am. 1970, ch. 73, sec. 2, p. 187; am. 1974, ch. 20, sec. 14, p. 533; am. 1978, ch. 309, sec. 4, p. 788; am. 1980, ch. 195, sec. 1, p. 431; am. 2004, ch. 169, sec. 1, p. 548.]
The water resource board shall adopt and revise from time to time such rules as may be necessary for carrying out the provisions of sections 42-1710 through 42-1721, Idaho Code. The rules governing mine tailings and impoundment structures shall require the owner to provide an abandonment plan to assure that the site will be in a safe maintenance-free condition upon completion of the mining operation. The rules shall also require the owner to provide to the director a bond or other acceptable surety adequate to complete the abandonment plan if the owner abandons the site without conforming to the plan. The amount of the bond shall be determined by the director and shall be established to avoid duplication with sureties deposited with other governmental agencies. In lieu of any surety required hereunder, the owner may deposit cash and governmental securities with the director in an amount equal to that of the required surety on conditions as prescribed in the rules.
[42-1714, added 1969, ch. 280, sec. 5, p. 833; am. 1974, ch. 20, sec. 15, p. 533; am. 1978, ch. 309, sec. 5, p. 789; am. 2000, ch. 298, sec. 1, p. 1029.]
During the construction, enlargement, repair, alteration, or removal of any dam, reservoir or mine tailings impoundment structure, the director shall make or cause to have made continuous or periodical inspections at state expense for the purpose of securing conformity with the approved plans and specifications, but shall require the owner to perform at his expense such work or tests as necessary to disclose information sufficient to enable him to determine that conformity with the approved plans and specifications is being secured, which shall include adequate inspection, at owner’s expense to verify compliance with approved plans, drawings and specifications.
The work of construction, enlargement, repair, alteration or removal of a dam, reservoir or mine tailings impoundment structure, for which approved plans, drawings and specifications are required, shall be under the responsible charge of a professional engineer who shall certify that such construction, enlargement, repair, alteration or removal was done in accordance with approved plans, drawings and specifications. If, after any inspections, investigations or examinations, or at any time as the work progresses, or at any time prior to issuance of a certificate of approval, it is found by the director that amendments, modifications or changes are necessary to insure safety, the director may order the owner to revise the plans and specifications. If conditions are revealed which will not permit the construction of a safe dam, reservoir or mine tailings impoundment structure, the approval may be revoked. In the event that conditions imposed may be waived or made less burdensome without sacrificing a proper margin of safety, the director may authorize an owner to revise the plans and specifications accordingly. If at any time during construction, enlargement, repair or alterations of any dam, reservoir or mine tailings impoundment structure the director finds that the work is not being done in accordance with the provision of the approval and the approved plans and specifications, he shall give a written notice and order by certified mail or by personal service to the owner. The notice and order shall state the particulars in which the approval and approved plans and specifications or the approval and approved plans and specifications as revised are not being or have not been complied with and shall order the immediate compliance with the approval and approved revised plans and specifications as the case may be. The director may order that no further work be done until such compliance has been effected and approved by him. A failure to comply with the approval and approved plans and specifications as originally approved or as revised shall render the approval subject to revocation by the director, if compliance is not made in accordance therewith after notice and order from him as provided in this chapter.
[42-1715, added 1969, ch. 280, sec. 6, p. 833; am. 1974, ch. 20, sec. 16, p. 533; am. 1978, ch. 309, sec. 6, p. 789; am. 2016, ch. 206, sec. 4, p. 582.]
Immediately upon completion of a new dam, reservoir or mine tailings impoundment structure or enlargement or repair of a dam, reservoir or mine tailings impoundment structure the owner shall give notice of completion to the director, and as soon thereafter as possible file with the director supplementary drawings or descriptive matter showing or describing the dam, reservoir or mine tailings impoundment structure as actually constructed, including the following:
(a) A record of all grout holes and grouting.
(b) A record of permanent location points and bench marks.
(c) A record of tests of concrete or other material used in the construction of the dam, reservoir or mine tailings impoundment structure.
(d) Any other items which may be of permanent value and have a bearing on the safety and performances of the dam, reservoir or mine tailings impoundment structure.
In connection with the enlargement or repair of a dam, reservoir or mine tailings impoundment structure, the supplementary drawings and descriptive matter need apply only to the new work.
[42-1716, added 1969, ch. 280, sec. 7, p. 833; am. 1974, ch. 20, sec. 17, p. 533; am. 1978, ch. 309, sec. 7, p. 790.]
Supervision over the maintenance and operation of dams, reservoirs and mine tailings impoundment structures insofar as necessary to safeguard life and property from injury by reason of the failure thereof is vested in the director of the department of water resources. The director shall at state expense inspect or cause to be inspected, as often as he thinks advisable, every dam used for holding water and mine tailings impoundment structure used for holding tailings slurry in this state; however, all dams or mine tailings impoundment structures regulated by the department shall be inspected at least once every five (5) years, and if after any such inspection such dam or mine tailings impoundment structure, in the opinion of the director, is unsafe, and life or property liable to be endangered by reason thereof, the director shall give written notice and order by certified mail or by personal service upon the owner or owners to remove or repair the same so as to make it safe. If such owner or owners shall neglect or refuse to remove or repair the same after notice to that effect has been given in writing by the director, the director may draw off all or part of such water from behind such dam, embankment or mine tailings slurry from behind mine tailings impoundment structure and keep said water or mine tailings slurry drawn off until such time as the orders shall be complied with. In determining whether or not a dam, reservoir or mine tailings impoundment structure or proposed dam, reservoir or mine tailings impoundment structure constitutes or would constitute a danger to life or property, the director shall take into consideration the possibility that the dam, reservoir or mine tailings impoundment structure might be endangered by overtopping, seepage, settlement, erosion, cracking, earth movement or other conditions which exist or might occur in any area in the vicinity of the dam, reservoir or mine tailings impoundment structure.
No action shall be brought against the state, the water resource board, the director, or the department of water resources or their respective agents or employees for the recovery of damages caused by the partial or total failure of any dam, reservoir or mine tailings impoundment structure or through the operation of any dam, reservoir or mine tailings impoundment structure upon the ground that such defendant is liable by virtue of any of the following:
(a) The approval of the dam, reservoir or mine tailings impoundment structure.
(b) The issuance or enforcement of orders relative to maintenance or operation of the dam, reservoir or mine tailings impoundment structure.
(c) Control and regulation of the dam, reservoir or mine tailings impoundment structure.
(d) Measures taken to protect against failure during an emergency.
(e) The use of design and construction criteria prepared by the department.
(f) The failure to issue or enforce orders, to control or regulate dams, or to take measures to protect against dam failure.
No action shall be brought by the state against the owner for pollution which may occur in the event that the director orders emergency dumping or bypassing.
Nothing in this part shall be construed to relieve an owner or operator of a dam, reservoir or mine tailings impoundment structure of the legal duties, obligations or liabilities incident to the ownership or operation of the dam, reservoir or mine tailings impoundment structure.
The findings and orders of the director and the certificate of approval of any dam, reservoir or mine tailings impoundment structure issued by the director are final and conclusive and binding upon all state agencies, regulatory or otherwise, as to the safety of design, construction, maintenance and operation of any dam, reservoir or mine tailings impoundment structure.
The director may require owners to keep records of, and to report on, maintenance, operation, staffing and engineering and geologic investigations, and the water resource board shall issue such rules as necessary to secure maintenance and operation and to require staffing and engineering and geologic investigations which will safeguard life and property. In addition, the owner of a dam, reservoir or mine tailings impoundment structure or his agent shall fully and promptly advise the department of any sudden or unprecedented flood or unusual or alarming circumstance or occurrence affecting the safety of the dam, reservoir or mine tailings impoundment structure. The director, from time to time, shall make inspections of dams, reservoirs and mine tailings impoundment structures at state expense for the purpose of determining their safety, but shall require owners to perform at their expense such work as necessary to disclose information sufficient to enable the director to determine conditions of dams, reservoirs, and mine tailings impoundment structures in regard to their safety and to perform at their expense other work necessary to secure maintenance and operation which will safeguard life and property.
[42-1717, added 1969, ch. 280, sec. 8, p. 833; am. 1974, ch. 20, sec. 18, p. 533; am. 1978, ch. 309, sec. 8, p. 791; am. 1987, ch. 225, sec. 1, p. 477; am. 2004, ch. 168, sec. 1, p. 546.]
The director shall immediately employ any remedial means necessary to protect life and property if either:
(a) The condition of any dam, reservoir or mine tailings impoundment structure is so dangerous to the safety of life or property as not to permit time for the issuance and enforcement of an order relative to maintenance or operation.
(b) Passing or imminent floods threaten the safety of any dam, reservoir or mine tailings impoundment structure.
In applying the remedial means provided for in this act, the department may in emergency do any of the following:
(a) Lower the water level by releasing water from the reservoir or lower mine tailings slurry level by releasing slurry from the mine tailings impoundment structure.
(b) Completely empty the reservoir.
(c) Take such other steps as may be essential to safeguard life and property.
The director shall continue in full charge and control of such dam or reservoir, or both, or mine tailings impoundment structure, or all, and its appurtenances, until they are rendered safe or the emergency occasioning the action has ceased.
If the cost of the emergency remedial action by the director for the protection of life and property exceeds the amount of money appropriated from the general fund specifically for that purpose, the additional costs may be defrayed by the issuance of deficiency warrants as may be authorized by the board of examiners. When so authorized, the state controller shall draw deficiency warrants against the general fund.
The cost and expenses of the remedial means provided in this act, including cost of any work done to render a dam, reservoir or mine tailings impoundment structure or its appurtenances safe, shall be recoverable by the state from the owner. If not paid within sixty (60) days of invoice, action may be brought by the director in the district court of the district wherein the dam, reservoir or mine tailings impoundment structure or any part thereof is situated. The funds recovered shall be returned to the general fund to offset the amount of the deficiency warrant.
No action shall be brought by the state against the owner for pollution which may occur in the event that the director orders emergency dumping or bypassing.
[42-1718, added 1969, ch. 280, sec. 9, p. 833; am. 1974, ch. 20, sec. 19, p. 533; am. 1978, ch. 309, sec. 9, p. 793; am. 1995, ch. 283, sec. 1, p. 944; am. 2003, ch. 32, sec. 23, p. 130.]
A certificate of approval shall be issued for all dams and mine tailings impoundment structures, new or existing, upon a finding that the dam or reservoir is safe to impound water or the mine tailings impoundment structure is safe to impound mine tailings slurry within the limitations prescribed in the certificate. Upon written request by an owner for a certificate of approval, the director shall within fourteen (14) days inspect or cause to be inspected and issue a certificate if he finds that the dam, reservoir or mine tailings impoundment structure is safe to impound water or tailings slurry within the limitations prescribed in the certificate. Pending the issuance of a certificate of approval, the owner of a new dam, reservoir or mine tailings impoundment structure shall not, through action or inaction, cause the dam or reservoir to impound water or mine tailings impoundment structure to impound mine tailings slurry.
Each certificate of approval issued may contain such terms and conditions as the director may prescribe. The director may revoke any certificate of approval whenever he determines that the dam, reservoir or mine tailings impoundment structure constitutes a danger to life and property. Whenever he deems such action necessary to safeguard life and property, the director may also amend the terms and conditions of any such certificate by issuing a new certificate containing the revised terms and conditions. The owner of a dam, reservoir or mine tailings impoundment structure for which a certificate of approval has been issued shall not, through action or inaction, cause the dam or reservoir to impound water or mine tailings impoundment structure to impound mine tailings slurry after the certificate terminates unless a new certificate is issued for the dam, reservoir or mine tailings impoundment structure. Those inflows that cannot be diverted may still be allowed to enter the structure, but the lowest possible level must be maintained until safety of the structure is assured. A new certificate shall be issued upon a finding by the director that the dam or reservoir is safe to impound water or mine tailings impoundment structure is safe to impound tailings slurry within the limits prescribed in the certificate.
No action shall be brought by the state against the owner for pollution which may occur in the event that the director orders emergency dumping or bypassing.
With respect to written consent for use of a dam which has been issued and which is in effect prior to the effective date of this act or mine tailings impoundment structure which has been issued and which is in effect prior to the effective date of amendment, the director shall issue a new certificate of approval, which shall supersede the previous written consent for use, or shall contain such terms and conditions as the director may prescribe or shall revoke the existing written consent for use if he finds that the dam or reservoir is not safe to impound water or that the mine tailings impoundment structure is not safe to impound mine tailings slurry.
Before any certificate of approval is revoked, the director shall hold a hearing. Written notice of the time and place of the hearing shall be mailed, at least twenty (20) days prior to the date set for the hearing, to the holder of the certificate. Any interested persons may appear at the hearing and present their views and objections to the proposed action. The hearing shall be conducted in accordance with section 42-1701A(1) and (2), Idaho Code. Any party aggrieved by the final order of the director may seek judicial review thereof pursuant to section 42-1701A(4), Idaho Code.
[42-1719, added 1969, ch. 280, sec. 10, p. 833; am. 1974, ch. 20, sec. 20, p. 533; am. 1978, ch. 309, sec. 10, p. 794; am. 1980, ch. 238, sec. 15, p. 546.]
(1) Every person who violates any of the provisions of this chapter, or of any order of the director or of any rule of the water resource board where a copy of the order or rule has been served upon said person by certified mail as herein provided, and said person fails to comply therewith within the time herein provided, or within ten (10) days of such service if not otherwise provided, shall be guilty of a misdemeanor. In the event of a continuing violation, each day that the violation continues constitutes a separate and distinct offense.
(2) Any person who willfully obstructs, hinders, or prevents the director, the department or its agents or employees from performing the duties imposed by this chapter or who willfully resists the exercise of the control and supervision conferred by this chapter upon the director, the department or its agents or employees is guilty of a misdemeanor.
(3) Any owner or any person acting as a director, officer, agent or employee of an owner, or any contractor or agent or employee of a contractor who engages in the construction, enlargement, repair, alteration, maintenance or removal of any dam, reservoir or mine tailings impoundment structure, who knowingly does work or permits work to be executed on the dam, reservoir or mine tailings impoundment structure without an approval or in violation of or contrary to any approval as provided for in this chapter, or any inspector, agent or employee of the department who has knowledge of such work being done and who fails to immediately notify the director thereof, is guilty of a misdemeanor.
(4) Whenever any party or parties feel themselves aggrieved by the determination of the director in refusing to approve any plan or specification as mentioned in this chapter, or by any order of the director, such party or parties may seek a hearing before the director in accordance with section 42-1701A(3), Idaho Code, if a hearing has not already been held, and may seek judicial review in accordance with section 42-1701A(4), Idaho Code, of any final order of the director issued following a hearing.
(5) When the director of the department of water resources determines that any person is in substantial violation of any provision of this chapter or any rule, certificate, condition of approval or order issued or promulgated pursuant to this chapter, the director may commence an administrative enforcement action by issuing a written notice of violation in accordance with the provisions of section 42-1701B, Idaho Code.
[42-1720, added 1969, ch. 280, sec. 11, p. 833; am. 1974, ch. 20, sec. 21, p. 533; am. 1978, ch. 309, sec. 11, p. 795; am. 1980, ch. 238, sec. 16, p. 547; am. 1998, ch. 173, sec. 9, p. 610.]
Owners who shall desire to construct, or enlarge, or alter or repair, meaning only such alterations or repairs as may affect the safety of the structure, any mine tailings impoundment structure for the purpose of storing mine tailings slurry when the same is to be more than thirty (30) feet in height shall submit duplicate plans, drawings and specifications of the proposed work to the director, and construction of the new mine tailings impoundment structure, alteration or repair shall not be commenced until the owner has applied for and obtained written approval of the plans, drawings and specifications.
Owners of mine tailings impoundment structures upon which construction, lift construction, enlargement or alteration is under way on July 1, 1978, and for which plans, drawings and specifications would be required if such work had commenced subsequent to July 1, 1978, shall submit plans, drawings and specifications with respect to that portion of the work to be performed subsequent to July 1, 1978, as are required, together with the fee established hereinafter. In the event that the owner fails to submit such plans, drawings and specifications contemplated by this paragraph within sixty (60) days, the director shall give notice to owners to submit plans, drawings and specifications, and failure to submit plans, drawings and specifications within thirty (30) days of the date of mailing the notice shall be punishable as provided in this chapter. Construction, lift construction, enlargement, or alteration which is under way on July 1, 1978 may be stopped upon issuance of an order by the director for good cause shown, as determined by the director. The notice and/or order provided for in this paragraph shall state the good cause for stoppage determined by the director and shall be given by personal service or certified mail and a return receipt signed by the owner or responsible company shall constitute prima facie evidence of service.
Upon receipt of the plans, drawings and specifications, the director shall give consideration thereto and shall approve or disapprove the same within the time provided in this section, and if approved, the director shall affix his approval thereto and return one (1) copy of such plans, drawings and specifications, with his approval, to the party or parties proposing to construct the works.
Plans, drawings and specifications submitted to the director complete with fees shall be approved or disapproved in no more than sixty (60) days and in no less than fourteen (14) days after receipt. Defective plans, drawings and specifications made in a bona fide attempt to conform to the law and rules and regulations of the water resource board shall not be rejected but notice of defect stating in detail the defect or defects found in the plans, drawings or specifications shall be sent to the owner by certified mail. If within thirty (30) days of the date of mailing the notice the owner does not file amended plans, drawings and specifications, the plans, drawings and specifications shall be rejected and cancelled unless, for good cause shown, the director allows the owner further time.
The construction of all mine tailings impoundment structures under plans, drawings and specifications approved by the director shall be pursued with reasonable diligence to completion, taking into consideration the nature of and purpose for which said construction, lift construction, enlargement or alteration is made.
The plans, drawings and specifications shall include the following information:
(a) The name and address of the owner.
(b) The location, type, size and height of the proposed mine tailings impoundment structure and appurtenant works.
(c) The storage capacity of the impoundment area.
(d) Such other pertinent information as the director may require consistent with good engineering practice including the following:
(1) Data concerning subsoil and foundation conditions and materials entering into construction of the mine tailings impoundment structure.
(2) Investigations of, and reports on subsurface conditions involving such matters as exploratory pits, trenches, and adits, drilling, coring, geophysical surveys, tests to determine leakage rates, and physical tests to measure in place the property and behavior of foundation materials at the impoundment structure site.
(3) Investigation of and reports on the geology of the impoundment structure site and its vicinity, possible geological hazards, availability and quality of construction materials, and other pertinent factors.
The plans, drawings and specifications shall be of such character and size setting forth such pertinent details and dimensions and in such form as the director requires consistent with good engineering practice. Plans, drawings and specifications which are submitted to the department shall be prepared by or under the direction of a professional engineer who is entitled to practice the profession of engineering pursuant to chapter 12, title 54, Idaho Code.
Where said mine tailings impoundment structure is, in the opinion of the director, not of sufficient importance to have the provisions of the section apply to such structure, then the director shall have power, upon written application, to suspend the provisions of this section in regard to such structure.
[42-1721, added 1978, ch. 309, sec. 12, p. 796.]
The legislature finds and declares that:
(1) The water resources and waterways of Idaho constitute a valuable renewable resource;
(2) The welfare of the people of Idaho is dependent upon conservation, development and optimum use of our water resources and waterways;
(3) State regulation of development and use of our water resources and waterways is necessary to ensure water is available to meet the present and future needs of the people of Idaho;
(4) The development of Idaho’s water resources for hydropower, irrigation, domestic, commercial, municipal, industrial and other uses in a manner that considers competing uses and values provides important benefits to the people of Idaho;
(5) Comprehensive planning is necessary to minimize conflicts between competing uses and to ensure optimal protection of all beneficial uses of water;
(6) A single state agency should formulate a comprehensive state water plan;
(7) Selected rivers possessing outstanding fish and wildlife, recreational, aesthetic, historic, cultural, natural or geologic values should be protected for the public benefit and enjoyment;
(8) Section 401 of the federal clean water act gives the state certification authority to regulate activities licensed or permitted by federal agencies to insure the protection of the quality of state water; and
(9) The comprehensive state water plan required by this chapter shall not alter any existing responsibilities, jurisdiction or planning functions of state agencies established by state or federal law.
[42-1730, added 1988, ch. 370, sec. 3, p. 1091.]
For the purpose of this chapter:
(1) "Alteration" means any activity using mechanized equipment that moves or overturns gravel or earth.
(2) "Board" means the Idaho water resource board.
(3) "Comprehensive state water plan" means the plan adopted by the board pursuant to section 42-1734A, Idaho Code, or a component of such plan developed for a particular water resource, waterway or waterways and approved by the legislature.
(4) "Dredge or placer mining" means any dredge or other placer mining operation to recover minerals with the use of a dredge boat or sluice washing plant whether fed by bucket line as a part of such dredge or by a separate dragline or any other method including, but not limited to, suction dredges which are capable of moving more than two (2) cubic yards per hour of earth material.
(5) "Hydropower project" means any development which uses a flow of water as a source of electrical or mechanical power, or which regulates the flow of water for the purpose of generating electrical or mechanical power. A hydropower project development includes all powerhouses, dams, water conduits, transmission lines, water impoundments, roads, and other appurtenant works and structures.
(6) "Interim protected river" means a waterway designated pursuant to section 42-1734D or 42-1734H, Idaho Code, as protected for up to two (2) years while a component of the comprehensive state water plan is prepared for that waterway.
(7) "Natural river" means a waterway which possesses outstanding fish and wildlife, recreation, geologic or aesthetic values, which are free of substantial existing man-made impoundments, dams or other structures, and of which the riparian areas are largely undeveloped, although accessible in places by trails and roads.
(8) "Protected river" means a waterway protected in the comprehensive state water plan by designation as either a natural river or a recreational river.
(9) "Recreational river" means a waterway which possesses outstanding fish and wildlife, recreation, geologic or aesthetic values, and which might include some man-made development within the waterway or within the riparian area of the waterway.
(10) "Riparian area" means that area within one hundred (100) feet of the mean highwater mark of a waterway.
(11) "State agency" means any board, commission, department or executive agency of the state of Idaho.
(12) "Stream bed" means a natural water course of perceptible extent with definite bed and banks, which confines and conducts the water of a waterway which lies below and between the ordinary high water mark on either side of that waterway.
(13) "Waterway" means a river, stream, creek, lake or spring, or a portion thereof, and shall not include any tributary thereof.
[42-1731, added 1988, ch. 370, sec. 3, p. 1092.]
Pursuant to the provisions of article 15, section 7, of the constitution of the state of Idaho, there is hereby established as the constitutional water agency within the department of water resources the Idaho water resource board which shall consist of eight (8) appointed members. The eight (8) appointed members shall be qualified electors of the state, no more than four (4) of whom shall be members of the same political party. Appointment of board members shall be made solely upon consideration of their knowledge, interest and active participation in the field of reclamation, water use or conservation and no member shall be appointed a member of the board unless he shall be well informed upon, interested in, and engaged actively in the field of reclamation, water use or conservation of water. Four (4) of these members shall be appointed at large and no more than three (3) of the eight (8) members shall be residents of a single district. To insure representation of water users of all geographic locations of the state, one (1) member shall be appointed from each of the following districts:
District No. 1 which shall consist of the counties of Boundary, Bonner, Kootenai, Shoshone, Benewah, Latah, Clearwater, Nez Perce, Lewis and Idaho;
District No. 2 which shall consist of the counties of Adams, Valley, Washington, Payette, Gem, Boise, Canyon, Ada, Elmore and Owyhee;
District No. 3 which shall consist of the counties of Camas, Gooding, Jerome, Twin Falls, Cassia, Blaine, Lincoln, Minidoka, Lemhi, Custer and Butte;
District No. 4 which shall consist of the counties of Clark, Fremont, Jefferson, Madison, Teton, Bingham, Bonneville, Power, Bannock, Caribou, Oneida, Franklin and Bear Lake.
All appointments shall be made by the governor with the advice and consent of the senate. As soon as practicable after passage of this act, the governor shall appoint all eight (8) members; four (4) members shall be appointed to terms which will expire on January 1, 1967, four (4) members shall be appointed to terms which will expire on January 1, 1969, and thereafter all appointments shall be to four (4) year terms. Any vacancy caused by death, removal, disqualification, or resignation, shall be filled by the governor for the unexpired term caused by the vacancy. The appointed members shall be compensated as provided by section 59-509(h), Idaho Code.
[42-1732, added 1965, ch. 320, sec. 2, p. 901; am. 1974, ch. 20, sec. 22, p. 533; am. 1980, ch. 247, sec. 42, p. 612.]
The business of the board shall be conducted as follows:
(a) The first meeting of the board shall be held in the city of Boise within thirty (30) days following its appointment and thereafter the board shall hold no less than four (4) regular meetings annually on dates and at places set by the board. The board shall maintain its principal office in Ada county. Special meetings of the board may be held by call of the chairman, four (4) of the members of the board, or the governor. A majority of board members at any meeting shall constitute a quorum for the transaction of any business. No notice shall be required for regular, special or adjourned meetings, providing the time and place of the meeting is fixed at a meeting at which all of the board members are in attendance. Otherwise, five (5) days written or telegraphic notice setting out the time, place and purpose of the meeting shall be required. Any meeting of the board at which all of the members are present shall be as valid as if held pursuant to notice. Members may waive notice in writing either before or at the time of the meeting.
(b) All meetings at which official action is taken by the board shall be open to the public; the board may hold executive sessions at which no official action is taken.
(c) At its first meeting the board shall elect one (1) of its members chairman and one (1) of its members vice chairman. Such officers shall hold their respective offices for a period of two (2) years and until their successors are elected and qualified. Should a vacancy occur in either office, the board shall elect a member to fill such vacancy for the remainder of the term.
(d) The chairman shall preside at all meetings of the board, perform the normal duties of that office and such other duties as may be required of him by the board.
(e) The vice chairman shall possess all of the powers and perform all of the duties of the chairman in the event of the death, absence, disability or refusal to act on the part of the chairman, and such authority shall extend until a new chairman has been elected and qualified. He shall also perform such other duties as may be required of him by the board.
(f) The board shall select a secretary who may be a member of the board. The secretary shall be responsible for full and accurate minutes of all meetings of the board, a record of its proceedings, and every ruling, order and decision made by it. He shall also perform such other duties as may be required of him.
(g) The board shall adopt a seal having upon it the words, "Idaho water resource board," which shall be placed in the care and custody of the director.
(h) Each member of the board shall, before entering upon the discharge of his official duties, file with the secretary of state the statutory oath of office to which, and as a part thereof, shall be added a declaration of the political party to which said board member belongs.
[42-1733, added 1965, ch. 320, sec. 3, p. 901; am. 2001, ch. 183, sec. 17, p. 627.]
The board shall, subject to the provisions of chapter 52, title 67, Idaho Code, have the following powers and duties:
(1) To have and exercise all of the rights, powers, duties and privileges vested by article XV, section 7, of the constitution of this state in the water resource agency, and the water resource board, herein created, is hereby constituted the water resource agency;
(2) To institute judicial proceedings to have water rights established by court decree on any stream, lake or underground water basin; in such proceedings court costs of the action, including the survey and determination of water uses by the director of the department of water resources, shall be borne by the state;
(3) To appear, when requested by the governor, on behalf of and represent the state in matters related to its duties in any proceeding, negotiation, or hearing involving the federal government or other state; provided, however, that compact commissions now established by law shall continue to act but in so doing shall report to it;
(4) To accept, receive, initiate, investigate, consider and promote such water projects as it deems to be in the public interest;
(5) To generate and wholesale hydroelectric power at the site of production if such power production is connected with another purpose for such project;
(6) To file applications and obtain permits in the name of the board, to appropriate, store, or use the unappropriated waters of any body, stream, or other surface or underground source of water for specific water projects. Such filings and appropriations by the board, or any water rights owned or claimed by the board, shall be made in the same manner and subject to all of the state laws relating to appropriation of water, with the exception that the board will not be required to pay any fees required by the laws of this state for its appropriations. The filings and appropriations by the board shall be subject to contest or legal action the same as any other filing and appropriation, and such filings and appropriations shall not have priority over or affect existing prior water rights of any kind or nature; provided that the board shall have the right to file for water rights with appropriate officials of other states as trustee for project users, and to do all things necessary in connection therewith;
(7) To finance said projects with revenue bonds or such moneys as may be available;
(8) To acquire, purchase, lease, or exchange land, rights, water rights, easements, franchises and other property deemed necessary or proper for the construction, operation and maintenance of water projects;
(9) To exercise, in accordance with the provisions of title 7, chapter 7, Idaho Code, the right of eminent domain to acquire property necessary for the construction of projects, both land and water;
(10) To cooperate in all water studies, planning, research, or activities with any state or local agency in this state, or any other state or any federal agency and to enter into contracts with federal, state and local governmental agencies to effect this purpose;
(11) To present to the governor for presentation to the legislature not later than the 30th of November prior to the convening of a regular legislative session the final report containing the complete plans, costs and feasibility estimates for any water project which the board recommends that the state construct in accordance with the comprehensive state water plan; and to construct any water project specifically authorized by the legislature;
(12) To enter into contracts with political subdivisions, municipal entities, individuals and others for the rehabilitation and repair of existing irrigation projects and irrigation facilities, the sale and/or lease of water, use of water, water storage, electric power, or other service, to turn over projects to water users after pay-out and to lease facilities, sell, lease or dispose of surplus facilities subject to the provisions of applicable law;
(13) To enter into contracts to effect the purposes of this chapter;
(14) To sue and be sued;
(15) To study and examine pollution of rivers, streams, lakes and ground water, and to advise, cooperate and counsel with the state board of environmental quality in a manner designed to avoid inhibition of economic development and at the same time insure the right of the people to comfortably enjoy our water resources and accomplish the establishment of water quality criteria;
(16) To call upon any other state agency for cooperation, assistance or use of information available to such agency; provided, however, if such agency is required to make substantial expenditures in responding to such request, appropriate arrangements for compensation may be accomplished;
(17) To issue revenue bonds for the rehabilitation and repair of existing irrigation projects and irrigation facilities, and for water projects, pledge any revenues available to the board to secure said bonds, exclusive of any revenues derived from legislative appropriations, provided that any amounts received from loan repayments regardless of the source of funds for the loan may be pledged, and pool revenues from one (1) or more projects constructed, financed or operated by the board, or existing irrigation project or facilities rehabilitated or repaired by the board;
(18) To formulate and recommend, prior to each session of the legislature, proposed legislation that may be necessary to assist it in effecting a proper plan for conservation, development and utilization of water resources and waterways and to report to each session of the legislature on the public business entrusted to its care and the financial affairs of the board. In the period between legislative sessions, the board shall deposit with the legislative council statements describing all actions taken and projects undertaken by it;
(19) To issue procedural and operative rules as may be necessary for the conduct of its business;
(20) To appoint advisory boards when deemed desirable to aid in the execution of its powers;
(21) To take such other action as may be necessary to carry out its duties and powers under this chapter and the constitution of the state of Idaho;
(22) To loan without prior legislative approval, the proceeds of the sale of revenue bonds to the local water project sponsor or sponsors; to enter into lease, sale or loan agreement; and to purchase all or a portion of, or participate in, loans, originated by private lending institutions.
[42-1734, added 1965, ch. 320, sec. 4, p. 901; am. 1974, ch. 20, sec. 23, p. 533; am. 1977, ch. 172, sec. 1, p. 441; am. 1981, ch. 90, sec. 1, p. 125; am. 1988, ch. 370, sec. 4, p. 1093; am. 2001, ch. 103, sec. 82, p. 322; am. 2003, ch. 80, sec. 1, p. 254.]
(1) The board shall, subject to legislative approval, progressively formulate, adopt and implement a comprehensive state water plan for conservation, development, management and optimum use of all unappropriated water resources and waterways of this state in the public interest. The comprehensive state water plan shall consist of: Part A — statewide policies, goals and objectives; and Part B — component water plans for individual waterways, river basins, drainage areas, river reaches, ground water aquifers or other geographic designations. As part of Part B of the comprehensive state water plan, the board may designate selected waterways as protected rivers as provided in this chapter. The comprehensive state water plan shall be based upon studies and public hearings in affected areas at which all interested parties shall be given the opportunity to appear, or to present written testimony in response to published proposals for such policy programs and proposed designations. A minimum of sixty (60) days shall be allowed between publication of a proposal and the date on which no further testimony on the proposal will be accepted. All comments in writing shall be preserved as a part of the record of the board. In adopting a comprehensive state water plan the board shall be guided by these criteria:
(a) Existing rights, established duties, and the relative priorities of water established in article XV, section 3, of the constitution of the state of Idaho, shall be protected and preserved;
(b) Optimum economic development in the interest of and for the benefit of the state as a whole shall be achieved by integration and coordination of the use of water and the augmentation of existing supplies and by protection of designated waterways for all beneficial purposes;
(c) Adequate and safe water supplies for human consumption and maximum supplies for other beneficial uses shall be preserved and protected;
(d) Subject to prior existing water rights for the beneficial uses now or hereafter prescribed by law, minimum stream flow for aquatic life, recreation and aesthetics and the minimization of pollution and the protection and preservation of waterways in the manner hereafter provided shall be fostered and encouraged and consideration shall be given to the development and protection of water recreation facilities;
(e) Watershed conservation practices consistent with sound engineering and economic principles shall be encouraged.
(2) The board may develop a comprehensive state water plan in stages based upon waterways, river basins, drainage areas, river reaches, groundwater aquifers, or other geographic considerations. The component of the comprehensive state water plan prepared for particular water resources and waterways shall contain, among other things, the following:
(a) A description of the water resources and waterway or waterways that are the subject of the plan, including pertinent maps detailing the geographic area of the plan;
(b) A description of the significant resources of the water resources and waterway or waterways;
(c) A description of the various existing and planned uses for these resources including currently undeveloped areas of the waterway and future plans for those areas, with a discussion of the advantages and disadvantages associated with each planned use; and
(d) A discussion of goals, objectives, and recommendations for improving, developing, or conserving the water resources and waterway or waterways in relation to these resources, including an examination of how different uses will promote the overall public interest, a statement as to the goals the plan expects to achieve, and an analysis of how any specific recommendations further those goals. A description of the methodology used in developing the plan shall be included.
(3) The description of the resources and uses in subsections (2)(b) and (2)(c) of this section shall contain, among other things:
(a) navigation;
(b) power development;
(c) energy conservation;
(d) fish and wildlife;
(e) recreational opportunities;
(f) irrigation;
(g) flood control;
(h) water supply;
(i) timber;
(j) mining;
(k) livestock watering;
(l) scenic values;
(m) natural or cultural features;
(n) domestic, municipal, commercial and industrial uses; and
(o) other aspects of environmental quality and economic development.
(4) The comprehensive state water plan may designate protected rivers. Designations shall be based upon a determination by the board that the value of preserving a waterway for particular uses outweighs that of developing the waterway for other beneficial uses and shall specify whether a protected river is designated as a natural or recreational river. The plan may also describe those water resources and waterways which are not designated as protected rivers.
(5) In designating a natural river, the board shall prohibit the following activities:
(a) construction or expansion of dams or impoundments;
(b) construction of hydropower projects;
(c) construction of water diversion works;
(d) dredge or placer mining;
(e) alterations of the stream bed; and
(f) mineral or sand and gravel extraction within the stream bed.
(6) In designating a recreational river, the board shall determine which of the activities listed in subsection (5) of this section shall be prohibited and may specify the terms and conditions under which activities that are not prohibited may go forward.
(7) Any prohibition or terms and conditions imposed pursuant to subsections (5) and (6) of this section shall remain in effect until the legislature acts upon the recommendation of the board as provided in section 42-1734B, Idaho Code, or until the legislature revokes its earlier approval of a protected river by law.
[42-1734A, added 1988, ch. 370, sec. 5, p. 1096; am. 1998, ch. 63, sec. 1, p. 221.]
(1) Prior to the adoption of the comprehensive state water plan or any component of the comprehensive plan, the board shall conduct hearings in the manner provided in section 42-1734A, Idaho Code.
(2) In the preparation, adoption, and implementation of the comprehensive state water plan, the board shall encourage the cooperation, participation, and assistance of state agencies. The board also shall solicit economic, energy, environmental, and other technical studies and recommendations from state agencies with particular expertise. All agencies of the state of Idaho shall cooperate with the board by providing requested existing information and studies pertaining in any manner to any matters which are the subject of this act. The board shall have discretion to balance all factors relevant to the formulation, adoption and implementation of the comprehensive state water plan and implementation and the designation of protected rivers.
(3) Any state agency may petition the board to amend the comprehensive state water plan. The board shall review any petition filed pursuant to this section within six (6) months after it is filed and shall either commence action to amend the comprehensive plan or set forth its reasons for denying the request in writing.
(4) All state agencies shall exercise their duties in a manner consistent with the comprehensive state water plan. These duties include but are not limited to the issuance of permits, licenses, and certifications; provided, however, that nothing in this chapter shall be construed to affect the authority of any state agency with respect to activities not prohibited by the comprehensive state water plan. The designation of a waterway as a natural or recreation river shall not preclude the department of environmental quality from establishing water quality standards for such waterway.
(5) When a comprehensive state water plan is adopted, copies thereof shall be filed in the office of the governor and director of the department of water resources, and published and distributed generally.
(6) The comprehensive state water plan and any component thereof developed for a particular waterway or waterways is subject to review and amendment by the legislature of the state of Idaho by law at the regular session immediately following the board’s adoption of the comprehensive state water plan or component thereof.
(7) The board shall submit all subsequent changes to the legislature as provided in section 7, article XV, of the constitution of the state of Idaho. The board shall also use best efforts to provide notice of all subsequent changes to each member of the legislature on or before the first day of the regular legislative session following the change.
(8) The board shall review and reevaluate Part A of the comprehensive state water plan, or any one (1) or more of the component water plans comprising Part B of the comprehensive state water plan, upon the adoption of a concurrent resolution of the legislature directing the review or requesting a specific amendment to the plan. The board also may undertake the review in response to a petition for amendment filed pursuant to subsection (3) of this section, or upon the board’s own initiative, as determined necessary by the board. Amendments to Part A or Part B of the comprehensive state water plan shall be adopted in the same manner as the original plan.
(9) A protected river designated by the board shall not become a final part of the comprehensive state water plan until approved by law. If the legislature does not approve a protected river by law at the regular session immediately following the board’s designation of such protected river, then the designation of such protected river shall terminate and any prohibition or terms and conditions imposed on such protected river pursuant to subsection (5) or (6) of section 42-1734A, Idaho Code, shall be terminated ten (10) days following the end of the session. The failure to approve a protected river shall not operate to invalidate a comprehensive plan or component thereof. Nothing in this subsection shall prevent the legislature, however, from approving such protected river and reinstituting or modifying such prohibitions or terms and conditions in a subsequent session.
(10) After adoption of a comprehensive plan or component thereof, the board shall administer the implementation of the plan.
[42-1734B, added 1988, ch. 370, sec. 5, p. 1098; am. 1998, ch. 63, sec. 2, p. 223; am. 2017, ch. 131, sec. 1, p. 308; am. 2025, ch. 47, sec. 12, p. 232.]
The comprehensive state water plan required by this chapter shall be submitted to the federal energy regulatory commission, and the pacific northwest electric power and conservation planning council, and any other federal agencies as the state water plan for the conservation, development, management and optimum use of the state of Idaho’s water resource.
[42-1734C, added 1988, ch. 370, sec. 5, p. 1099.]
(1) Prior to the adoption of a comprehensive plan for a waterway, the board may designate a waterway as an interim protected river. Any state agency may petition the board to designate a waterway as an interim protected river. The board shall promulgate procedural rules for designation of interim protected rivers. The rules shall provide adequate notice to interested parties of any petitions filed or actions contemplated pursuant to this act.
(2) The board shall determine whether the nominated waterway merits designation as an interim protected river. The board shall accept or reject a nomination within six (6) months after it is filed. There shall be no review of any board decision rejecting or accepting a nomination for an interim protected river. Designation of a waterway as an interim protected river shall be based upon a determination that:
(a) It is probable that the waterway would be designated a protected river in the comprehensive state water plan; and
(b) Interim protected river status is necessary to protect the values that would support such waterway’s designation as a protected river in a comprehensive state water plan.
(3) In designating a waterway for interim protected river status, the board shall indicate which of the activities listed in subsection 42-1734A(5), Idaho Code, shall be prohibited.
(4) Interim protected river status shall remain in effect until the earliest of:
(a) The adoption of a comprehensive state water plan for the waterway designated as an interim protected river;
(b) Two (2) years following the designation of an interim protected river unless extended by law;
(c) The revocation of a waterway’s interim protected river status by law.
(5) Any person may petition the board for a determination that a particular proposed action or project will not significantly impair the values supporting a waterway’s designation as an interim protected river. The board shall consider among other things environmental impact statements, technical studies and any other relevant comments or recommendations prepared by the petitioner for use before other state or federal agencies. The board may also consider any other relevant information. If the board determines that the proposed action or project will not significantly impair the values supporting a waterway’s designation as a protected river, then this section shall not apply to such action or project, except that the board, after consultation with relevant state agencies, may impose appropriate conditions on such action or project. An aggrieved party may seek judicial review of the board’s decision pursuant to chapter 52, title 67, Idaho Code.
(6) If a waterway is designated as an interim protected river, then the board shall proceed to prepare a comprehensive state water plan for the waterway. The board shall in preparing the state comprehensive water plan for the waterway consider, after review of all relevant factors contained in section 42-1734A, Idaho Code, whether the designation should continue or whether modification of the designation is warranted.
(7) If the designation of a waterway as an interim protected river is either revoked by law, or terminated as provided in this section, then the waterway shall not be eligible for designation as an interim protected river for a period of two (2) years following the revocation or termination of its interim protected river status.
[42-1734D, added 1988, ch. 370, sec. 5, p. 1099; am. 1993, ch. 216, sec. 37, p. 620.]
(1) The attorney general, at the request of the board, shall commence a civil action to enjoin any person violating any provision of this chapter and to recover actual damages in that amount required to restore a protected river and its riparian area to a condition reasonably comparable to that existing prior to the violation.
(2) It shall be the duty of the attorney general to institute and prosecute all enforcement actions provided for in this chapter.
[42-1734E, added 1988, ch. 370, sec. 5, p. 1100.]
(1) No provision of this chapter, or any rules or regulations promulgated pursuant to this chapter, shall in any way limit, restrict, or conflict with approved applications for the appropriation of water or with vested property rights existing on the date a waterway is designated for protected river status or interim protected river status. For the purpose of this chapter, nonvested rights shall include, but not be limited to, pending applications for state mining permits or mineral leases, and pending applications for the appropriation of water.
(2) No provision of this chapter, or any rules or regulations promulgated pursuant to this chapter shall bar a water user or his agent from cleaning, maintaining or replacing a water diversion structure existing on or before the date a river is designated as protected. A water user or his agent may remove any obstructions from the stream channel, if such obstruction interferes with the delivery of, or use of, water under any existing water right. The provisions of this section do not relieve a person from complying with any other applicable laws.
(3) Nothing in this act shall prevent or restrict the relicensing of existing hydropower projects that have been previously licensed by the federal energy regulatory commission and which have generated electricity. Any designation of waterways as interim protected rivers or protected rivers shall not affect the operation or relicensing, including but not limited to the expansion of capacity which does not enlarge existing boundaries or project impoundments of any hydropower project existing and that has been previously licensed by the federal energy regulatory commission and which have generated electricity as of the date of the designation.
[42-1734F, added 1988, ch. 370, sec. 5, p. 1100.]
No provisions of this chapter, or any rules or regulations promulgated pursuant to this chapter, shall be construed to establish a water right. Any water rights necessary to fulfill the purposes of this chapter shall be obtained pursuant to the provision of chapter 2 or chapter 15, title 42, Idaho Code.
[42-1734G, added 1988, ch. 370, sec. 5, p. 1101.]
(1) The board shall designate the following waterways as interim protected rivers pursuant to section 42-1734D, Idaho Code:
(a) Priest River, from the Canadian Border to the confluence of Priest Lake;
(b) South Fork of the Boise River, from Anderson Ranch Dam to Neal Bridge;
(c) Snake River, from Section 5, Township 11 South, Range 20 East, B.M. to King Hill;
(d) The following waterways within the Payette River Basin:
North Fork of the Payette River, from Cabarton Bridge to Banks;
South Fork of the Payette River, from the Sawtooth Wilderness Boundary to Banks;
Main Payette River, from Banks to Black Canyon Dam; and
(e) Henry’s Fork of the Snake River from its point of origin at Henry’s Lake to the point of its confluence with the backwaters of Ashton Reservoir.
(2) The board shall determine which of the activities listed in subsection (5) of section 42-1734A, Idaho Code, shall be prohibited.
[42-1734H, added 1988, ch. 370, sec. 5, p. 1101.]
Designation of a waterway as a protected river pursuant to this chapter shall not be a basis for seeking inclusion of such waterway in the national wild and scenic rivers system pursuant to 16, United States Code section 1273(a)(ii) unless the act designating the waterway as a protected river specifically requests the governor to seek inclusion of the waterway in the national wild and scenic rivers system.
[42-1734I, added 1988, ch. 370, sec. 5, p. 1101.]
The board may appoint legal counsel or may retain private counsel independent of the counsel appointed by the director of the department.
The board may utilize hearing officers during any hearing processes which are assigned to the board by law.
[42-1735, added 1965, ch. 320, sec. 5, p. 901; am. 1974, ch. 20, sec. 24, p. 533.]
(1) All future filings, permits and decrees on the unappropriated waters of this state shall be determined with respect to the effect such filings, permits and decrees will have on the minimum daily flow of the affected stream or river, or on the maintenance level of the affected lake or reservoir.
(2) All water plans and development projects proposed by the water resource board shall be subject to review and approval of the legislature, except that those projects funded from the water resource board revolving development account of less than five hundred thousand dollars ($500,000) need not have prior legislative approval.
(3) In further recognition of the authority granted by law to the water resource board by the provisions of section 42-1734, Idaho Code, and in further recognition of the right of the legislature to review and approve the actions of the water resource board, the water resource board is specifically directed:
(a) To inventory all of the unappropriated waters of this state;
(b) To recommend to the legislature appropriations in trust for the people of Idaho for specific purposes;
(c) To develop a list of specific proposals for storage of any unappropriated waters of this state, which proposals shall show location, costs, and proposed uses and benefits;
(d) To take all necessary actions to assure that Idaho citizens shall not be denied the right to divert and appropriate to beneficial uses, under the provisions of article XV of the constitution of the state of Idaho, the unappropriated waters of this state.
[42-1736B, added 1978, ch. 345, sec. 2, p. 886.]
(a) All project proposals involving the impoundment of water in a reservoir with an active storage capacity in excess of ten thousand (10,000) acre-feet, or the diversion of natural flow water appropriated pursuant to section 42-234, Idaho Code, for a managed recharge project in excess of ten thousand (10,000) acre-feet on an average annual basis, shall be submitted to the board for its approval or disapproval. No construction shall be commenced on any such project nor shall any diversion be permitted prior to receipt of board approval as herein provided and the board may institute injunctive proceedings to halt such construction or diversion. In the event a project is disapproved, this fact shall be certified by the board to the director of the department and such certification shall constitute the petition for cancelation of permit required by section 42-302, Idaho Code, and, pursuant to such certification, the procedure for cancelation of permit issued for such project shall be carried forward by said director.
(b) In determining whether a project proposal shall be approved, or disapproved, the board shall be guided by the following criteria:
Conserving the highest use of the water for all purposes.
The maximum economic development of the waters involved.
The control of the waters of this state for all beneficial purposes, including drainage, sanitation and flood control.
That sufficient water is available for appropriation for beneficial use.
The prevention of wasteful, uneconomic, impracticable or unreasonable use of the waters involved.
That all vested and inchoate rights to the waters of this state or to the use thereof have been protected by the issuance of a permit for the project by the director of the department.
The state water plan and water policy formulated under other laws of this state.
(c) The board shall by regulation, establish procedures for notice and hearing on those project proposals which must be submitted to the board and may authorize hearings by hearing officers. The board or its hearing officer shall have power to administer oaths and to require the attendance of such witnesses and the production of such books, records and papers as it may desire at any hearing and for that purpose the board may issue a subpoena for any witnesses or a subpoena duces tecum to compel the production of any books, records or papers which shall be served and returned in the same manner as a subpoena in a civil case. In case of any disobedience or neglect to obey a subpoena or subpoena duces tecum it shall be the duty of the district court in any county of this state in which such disobedience, neglect or refusal occurs, or any judge thereof, on application by the board, to compel obedience by proceedings for contempt as in the case of a subpoena issued by a regularly constituted court. The sponsor of a project who appears before the board shall have similar powers and shall have the right to be represented by counsel. If the sponsor does not appear at the appointed time, and his absence is without sufficient cause, the board shall have the right to proceed in his absence or may consider absence to constitute an admission of facts contrary to the position of the sponsor. The board shall make findings of fact and conclusions of law leading to its approval or disapproval.
(d) Any sponsor of a project which has been disapproved shall have the right to have the proceedings of the board reviewed by the district court in the county of his residence. With the exception that judicial review may be had by the district court of the county of the residence of the sponsor, such judicial review shall be accomplished in accordance with the provisions of chapter 52, title 67, Idaho Code.
[42-1737, added 1965, ch. 320, sec. 7, p. 901; am. 1969, ch. 469, sec. 3, p. 1346; am. 1974, ch. 20, sec. 26, p. 533; am. 1980, ch. 238, sec. 17, p. 548; am. 1993, ch. 216, sec. 38, p. 621; am. 2009, ch. 240, sec. 1, p. 740.]
The board shall have no power or authority to do, and shall be and is prohibited from doing, any thing or act which would modify, set aside or alter any existing right or rights to the use of water or the priority of such use as established under existing laws except where the board acquires the consent of the owner or exercises the right of eminent domain as herein provided. It is the policy of the legislature to favor those projects with contractual agreements which provide that, upon completion of revenue bond pay-out, the project will revert to the ownership and management of that group or entity, public or private, which has paid for the project.
[42-1738, added 1965, ch. 320, sec. 8, p. 901.]
The Idaho water resource board is authorized, for the purpose of carrying out the lawful powers granted it by the laws of this state, to contract indebtedness and issue revenue bonds evidencing such indebtedness in conformity with this chapter.
[42-1739, added 1965, ch. 319, sec. 1, p. 898.]
All revenue bonds authorized under the terms of this act may be issued and sold from time to time and in such amounts as are deemed necessary to provide sufficient funds for carrying out all its powers and, without limiting the generality thereof, shall include the following: acquisition of water rights, rehabilitation and repair of existing irrigation projects and irrigation facilities, and construction, maintenance, repair and operation of water projects, engineering and other costs for investigation and promotion of water projects, fiscal and legal expenses, cost of issuance of bonds including printing and advertising expenses, the establishment of bond reserves, and payment of interest on bonds.
[42-1740, added 1965, ch. 319, sec. 2, p. 898; am. 1981, ch. 90, sec. 2, p. 128; am. 2005, ch. 362, sec. 3, p. 1149.]
Revenue bonds shall bear such date or dates, mature at such time or times, bear interest at a rate or rates, be payable at such place or places, be in such form either coupon or registered or both, carry such registration privileges and be subject to such terms of redemption as the Idaho water resource board shall by resolution determine.
[42-1741, added 1965, ch. 319, sec. 3, p. 898; am. 1970, ch. 133, sec. 5, p. 309.]
Bonds issued under the provisions of this act shall be payable solely out of revenues of the Idaho water resource board. Such bonds shall be authorized by resolution, which resolution shall create a special fund or funds into which the Idaho water resource board shall obligate and bind the board to set aside and pay any part or parts of, or all of, or a fixed proportion of, or a fixed amount of the available revenue of the board sufficient to pay the principal of and interest on such bonds as the same shall become due and, if deemed necessary, to maintain adequate reserves therefor. No appropriated moneys shall be paid into such special fund or funds provided that any loan repayments to the Idaho water resource board, regardless of the source of funds for the loan, may be deposited to such fund or funds. Such fund or funds shall be drawn upon for the sole purpose of paying the principal of and interest on bonds issued pursuant to this act.
The bonds shall be negotiable instruments within the provisions and intent of the negotiable instrument laws of this state even though they shall be payable solely from such special fund or funds. The bonds and any coupons attached thereto shall state upon their face that they are payable solely from such special fund or funds. If the board fails to set aside and pay into such fund or funds the payments provided for in such resolution, the holder of any such bonds may bring suit to compel compliance with the provisions of the resolution.
[42-1742, added 1965, ch. 319, sec. 4, p. 898; am. 2003, ch. 80, sec. 2, p. 256.]
The board may provide such covenants as it may deem necessary to secure and guarantee the payment of the principal of and interest on such bonds, including but not limited to covenants to create reserve accounts and to authorize the deposit of certain moneys therein for the purpose of securing and guaranteeing the payment of such principal and interest, to appoint a state or national bank or trust company as trustee for the bondholders to hold, invest and disburse moneys set aside and pledged to pay and guarantee the payment of such bonds and/or as a trustee for safeguarding the disbursing of the proceeds of the sale of such bonds, to fix such powers and duties of such trustee or trustees as may be found necessary to carry out the purpose of this act, and to make any and all other covenants not inconsistent with the provisions of this act which in the judgment of the board will increase the marketability of such bonds. The board may also provide that revenue bonds payable out of the same source or sources may be later issued on a parity with any revenue bonds being issued and sold. The provisions of this act and any resolution or resolutions providing for the authorization, issuance and sale of such bonds shall constitute a contract with the holders of such bonds and the provisions thereof shall be enforceable by any owner or holder of such bonds by any appropriate suit, action or proceeding in any court of competent jurisdiction.
[42-1743, added 1965, ch. 319, sec. 5, p. 898.]
Such bonds shall be signed on behalf of the board by the chairman of the board and shall be attested by the secretary of the board, one of which signatures may be a facsimile signature, and shall have the seal or facsimile seal of the board impressed or imprinted thereon. All interest coupons attached thereto may be signed with the facsimile signatures of such officials. Such bonds shall be sold in the manner and at such price as the board shall deem advisable, either at public or private sale.
[42-1744, added 1965, ch. 319, sec. 6, p. 898.]
The board may also issue revenue warrants for the same purposes for which they may issue revenue bonds and the provisions of this act relating to the terms, conditions, covenants, issuance and sale of revenue bonds shall be applicable to such revenue warrants.
[42-1745, added 1965, ch. 319, sec. 7, p. 898.]
The board may by resolution, from time to time, provide for the issuance of funding or refunding revenue bonds to fund or refund any outstanding revenue or other warrants or bonds, and any premiums thereon, and coupons evidencing interest upon any such bonds at or before the maturity or first optional redemption date of such coupons, warrants or bonds, and may combine various outstanding revenue warrants and parts or all of various series and issues of outstanding revenue bonds and matured coupons in the amount thereof to be funded or refunded. Revenue bonds may be refunded only at maturity, upon call for redemption in accordance with their terms or with consent of the holder.
The board shall create a special fund or funds for the sole purpose of paying the principal of and interest on such funding or refunding revenue bonds, into which fund the board shall obligate and bind the board to set aside and pay any part or parts of, or all of, or a fixed proportion of, or a fixed amount of the available revenue of the board sufficient to pay such principal and interest as the same shall become due, and if deemed necessary to maintain adequate reserves therefor.
Such funding or refunding bonds shall be negotiable instruments within the provisions and intent of the negotiable instrument laws of this state.
The board may exchange such funding or refunding bonds for the warrants, bonds, and coupons being funded or refunded, or it may sell such funding or refunding bonds in the manner and at such price as the board shall deem to be in the best interest of the state, either at public or private sale, or may both exchange and sell.
The provisions of this act relating to the terms, conditions, covenants, issuance, and sale of revenue bonds shall be applicable to such funding or refunding bonds except as may be otherwise specifically provided in this section.
[42-1746, added 1965, ch. 319, sec. 8, p. 898.]
Bonds issued pursuant to the authority contained in this act shall be exempt from taxation under the Idaho Income Tax law.
[42-1747, added 1965, ch. 319, sec. 9, p. 898.]
This act shall be authority for the issuance of the bonds and warrants hereby authorized, and shall be liberally construed to accomplish its purposes. Any restrictions, limitations or regulations relative to the issuance of such bonds or warrants contained in any other act shall not apply to the bonds or warrants issued under this act. Any act inconsistent herewith shall be deemed modified to conform with the provisions of this act for the purpose of this act only.
[42-1748, added 1965, ch. 319, sec. 10, p. 898.]
In the event that any official required to participate in any act leading to the issuance of such bonds shall refuse to perform such act alleging as his reason illegality of the bonds to be issued, the board may institute judicial proceedings to compel such step to be taken and legality of the bonds to be determined.
[42-1749, added 1965, ch. 319, sec. 11, p. 898.]
It is in the public interest and it is the public policy of this state, in which there are vast areas of arid land, to develop and to financially assist in and support the development of the water resources of this state through the construction of water projects, including the rehabilitation, improvement, or extension of existing systems or facilities relating thereto, and to achieve that end, to create an Idaho water resource board revolving development fund to be used for that purpose.
[42-1750, added 1969, ch. 333, sec. 1, p. 1051.]
As used in this act, unless the context requires otherwise:
(a) "Board" means Idaho water resource board.
(b) "Irrigation district," "canal or irrigation company," "water users’ association," "municipal corporation," or "municipality," mean such entities created and existing under the laws of the state of Idaho.
(c) "Construction" means the construction, in whole or in part, of a new project, or the improvement or renovation, in whole or in part, of an existing project, or both such construction and improvement or renovation.
(d) "Project" means any project by means of which water shall be utilized or benefits accrue within this state for purposes within the limitations of this act.
(e) "Revolving fund" means Idaho water resource board revolving development fund.
[42-1751, added 1969, ch. 333, sec. 2, p. 1051.]
There is hereby established in the state treasury a special fund to be known as the Idaho water resource board revolving development fund. All money in the fund is appropriated continuously to the board to be used and administered by it for the purpose of developing the state’s water resources, and shall not be subject to the provisions of the Standard Appropriations Act of 1945 or section 67-3516, Idaho Code.
[42-1752, added 1969, ch. 333, sec. 3, p. 1051.]
Funds borrowed from the revolving development fund, together with interest due thereon, shall be repaid to the board and placed in the revolving fund together with receipts and revenues of any type and nature derived from any project constructed, operated, or maintained, in whole or in part, with moneys from the revolving fund, revenues received over and above the cost of projects financed by revenue bonds, revenues collected by or on behalf of water user entities for the purpose of repaying indebtedness under applicable statutory authority, revenues received from the sale of state land acquired by the board for water projects, surplus revenues from the sale of Carey Act (Title 43 USCA s. 641) lands, revenues received from the lease of water rights, fees received from water deliveries which are in excess of costs on projects sponsored by the board, gifts or grants from any source when the same are made for purposes consistent with those for which the revolving fund is established, and moneys from any other appropriate source.
[42-1753, added 1969, ch. 333, sec. 4, p. 1051; am. 2005, ch. 362, sec. 4, p. 1150.]
The Idaho water resource board revolving development fund shall be allocated for use:
(a) To the board for a project which it deems to be "in the public interest" and which, in its opinion, further implements any extant Idaho state water plan, in such amounts as are necessary for preparation of a feasibility study of the project, engineering services in preparing designs and specifications, and for construction of the project.
(b) As loans from the revolving development fund which may be approved by the board and made to irrigation districts, canal or irrigation companies, water users’ associations, municipal or private corporations, or, in special cases when approved by the board, to individuals to finance project costs, provided, however, that no loans shall be made to finance feasibility studies except as a part of overall project costs.
(c) To establish reserve accounts or guarantee funds in the state treasury to aid in the funding of water projects. Interest earned on such moneys invested by the state treasurer shall be paid into the water resource board revolving development fund.
(d) To the board to finance joint ventures for project construction with federal agencies, neighboring states, legal subdivisions of the state, private corporations, or other organizations, and including the costs of feasibility studies, investigations, and other preparatory expenses, for purposes consistent with those for which the fund is established, and the board is authorized to use the fund for these purposes.
(e) To the board to finance feasibility studies, investigations, and other preparatory expenses for projects it intends to fund through the sale of revenue bonds or through use of funds from other sources.
(f) To the board for payment of costs associated with the issuance and repayment of the board’s revenue bonds.
[42-1754, added 1969, ch. 333, sec. 5, p. 1051; am. 1979, ch. 154, sec. 1, p. 469; am. 2005, ch. 362, sec. 5, p. 1150.]
When a project has been selected by the board to be constructed by the board with money made available from the revolving fund, the board shall cause plans and cost estimates of such project to be prepared and the board is authorized to enter into a contract or contracts for construction of such project after legislative approval. The board shall insure that water developed or conserved by any such project shall be utilized or benefits accrue within this state, and it shall enter into appropriate repayment contracts with the project water users. The board shall assess against any project water user such charge as, in the opinion of the board, is necessary and reasonable for the maintenance and operation of the project during the repayment period and for repayment to the revolving fund of the amount allocated therefrom for making the feasibility study and for construction of the project, including costs for engineering services, design, specifications, and other preparatory expenses. All money allocated to the project from the revolving fund shall be repaid as determined by the board, provided that the repayment period shall not exceed 60 years.
Title to all projects constructed by the board with money from the revolving fund shall vest in the board. At the end of the repayment period, the board shall make a determination, guided by the principles set forth in the act under which it operates, as to whether or not it is in the public interest to turn title to such project over to the users of such project. Its action shall be based upon such determination, and the board is specifically authorized to convey title to the project to those who use the water from such project if it finds this to be in the public interest.
[42-1755, added 1969, ch. 333, sec. 6, p. 1051.]
(1) Any irrigation district, canal or irrigation company, water users’ association, municipal corporation, municipality, private corporation, aquifer protection district, or, in special cases approved by the board, an individual may file an application with the board for a loan from the revolving account for the purpose of financing project costs. Such application shall be filed in such manner, and shall be in such form and be accompanied by such information as may be prescribed by the board; provided, however, that any such application filed with the board under the provisions of this act shall:
(a) Describe the nature and purpose(s) of the proposed project.
(b) Set forth or be accompanied by a plan for development of the proposed project, together with such engineering and economic feasibility data and estimated costs of construction as may be required by the board.
(c) State whether money other than that for which application is made to the board will be used for project costs, and whether such money is available or has been sought for this purpose.
(d) Show that the applicant holds or can acquire title to all lands or has the necessary easements and rights-of-way for the project and related lands, and has or can acquire all water rights necessary for the construction, operation and maintenance of the proposed project, or that there exists sufficient water available for appropriation by proof of a permit issued by the director of the department of water resources.
(2) Upon receipt of an application, the board shall evaluate and, if it deems it to be necessary, investigate all aspects of the proposed project and the proposed construction thereof. As a part of such investigation, the board shall determine whether the plan for development of the project is satisfactory. If the board determines that the plan is unsatisfactory, it shall return the application to the applicant and may make such recommendations to the applicant as are considered necessary to make the plan satisfactory.
(3) The board may approve a loan for project costs if after investigation (if deemed necessary) and evaluation it finds that:
(a) The plan does not conflict with any extant Idaho state water plan;
(b) The proposed project is feasible from an engineering standpoint and economically justified, with studies showing a favorable benefit to cost ratio;
(c) The plan for development of the proposed project is satisfactory;
(d) The applicant is qualified and responsible;
(e) There is reasonable assurance that the borrower can repay the loan; and
(f) The money in the revolving account is available for the loan.
(4) If the board approves a loan, the board and the applicant or applicants shall enter into an agreement for repayment to the revolving account of money loaned therefrom, together with interest thereon at reasonable rates as determined by the board. The agreement shall further provide that repayment of the loan, together with interest thereon, shall commence no later than one (1) full year after construction of the project is completed, and that repayment shall be completed within the time period specified by the board; provided that repayment to reserve accounts or guarantee funds shall be made as provided by order of the board. The repayment period shall not exceed sixty (60) years, except that the board may extend the time for making repayment in the event of emergency or hardship. Such agreement shall also provide for such assurances of, and security for, repayment of the loan as are considered necessary by the board.
(5) The board shall have security for a loan from the revolving account that is appropriate to the loan and the borrower. As security for the loan, the board may hold a lien against real property, including water rights, from the borrower and may file a statement of the loan, its amount, terms, and a description of the security with the county recorder of each county in which the project or any part thereof is located. The county recorder shall record the lien in a book kept for the recording of liens and it shall be indexed as other liens are required by law to be indexed. The lien shall be valid until paid in full or otherwise discharged. The lien shall be foreclosed in accordance with applicable state law governing foreclosure of mortgages and liens as set forth in chapter 1, title 6, Idaho Code, chapter 13, title 45, Idaho Code, and related provisions of the statutes of this state.
(6) If an applicant fails to comply with the repayment contract, its interest in the project may be conveyed to a successor upon approval by the board, which may contract with the qualified successor in interest of the original obligor for repayment of the loan, together with the interest thereon, and for succession to its rights and obligations in any contract with the board.
(7) The state shall have a lien on any or all projects the board improves or renovates with money from the revolving account, and such lien shall be valid and continue in effect until such funds, together with interest thereon, have been paid in full and the lien discharged. The board shall file a statement of the lien, and the lien shall be foreclosed upon all project property and rights as provided in subsection (5) of this section.
[42-1756, added 1969, ch. 333, sec. 7, p. 1051; am. 1978, ch. 345, sec. 12, p. 895; am. 1979, ch. 154, sec. 2, p. 470; am. 2006, ch. 126, sec. 1, p. 362; am. 2006, ch. 304, sec. 2, p. 941; am. 2022, ch. 90, sec. 1, p. 255.]
No member of the board shall participate in the action of the board, nor be present during the board’s deliberations, concerning an application for a loan by an entity in which such board member is an officer, agent or employee, or in which such board member has any interest.
[42-1757, added 1969, ch. 333, sec. 8, p. 1051.]
The board may make such rules and regulations consistent with this act as it considers necessary to carry out the provisions of this act.
[42-1758, added 1969, ch. 333, sec. 9, p. 1051.]
An annual report shall be made to the governor and the legislature prior to each November following the close of the year, describing the work accomplished by use of the revolving development fund and including a complete financial statement.
[42-1759, added 1969, ch. 333, sec. 10, p. 1051.]
(1) There is hereby created and established in the trust and agency fund the water management account. All moneys in the account are appropriated continuously to the water resource board to be used and administered by it for the purposes specified in subsection (2) of this section and shall not be subject to the provisions of the standard appropriations act of 1945 or section 67-3516, Idaho Code. The state treasurer shall invest the idle moneys of the account, and the interest earned on such investments shall be retained by the account.
(2) The board may expend, loan, or grant moneys from the water management account for water projects, including studies, that conserve or increase water supply, improve drought resiliency, address water sustainability, or support flood management. The board shall have the authority to determine which water projects receive funds subject to the requirements of this section.
(a) Expenditures from the water management account shall be subject to the following provisions:
(i) Expenditures may be made from the account to provide public moneys for participation in any project constructed with funds from the water resource board revolving development account provided by section 42-1756, Idaho Code.
(ii) Expenditures may include but are not limited to the state’s participation in the costs of the following projects:
The construction of a raise of Anderson ranch dam, located on the south fork of the Boise river;
The Mountain Home air force base water delivery and treatment systems; and
The identification, study, construction, or enlargement of managed aquifer recharge sites, ground water to surface water conversion projects, and water measurement infrastructure above Milner dam that, based on scientific data and technical analysis, address the restoration of the eastern Snake plain aquifer and advance the state’s commitments under senate concurrent resolution 136 and senate concurrent resolution 138, adopted by the second regular session of the sixty-third Idaho legislature.
(iii) When selecting a project pursuant to subparagraph (ii) of this paragraph, the board shall consider:
The effects of such project on existing water rights, water quality, fish and wildlife, recreation, hydropower, and other water uses that provide economic value, stability, water sustainability, drought resiliency, and other benefits to the citizens of the state; and
Public input on the projects.
(b) The board may issue loans from the water management account based on terms and conditions approved by the board.
(c) The board may issue grants from the water management account. The board shall develop criteria, considering the public’s input, for grants issued by the board, which shall be competitive, matching grants that prioritize projects based on the public benefits they provide. Considerations of public benefits should include:
(i) The protection of existing water rights;
(ii) Water quality, fish and wildlife, recreation, hydropower, and other water uses that provide economic value, stability, water sustainability, drought resiliency, and other benefits to the citizens of the state;
(iii) Anticipated future water needs; and
(iv) Addressing aging water storage and delivery infrastructure, including projects that provide irrigation, environmental, safety, or recreational benefits.
(d) Preference for the distribution of funds shall be given with at least fifty percent (50%) matching funds provided by parties other than the state. In the event of in-kind contributions, the board shall determine the value of the in-kind contribution.
(3) On or before the first day of each regular legislative session, the board shall submit to the legislature a report relating to the prior and current fiscal year that includes the following information:
(a) A list of all projects considered by the board to receive funds from the water management account;
(b) A statement of all projects receiving moneys from the water management account, including:
(i) A description of how the project meets the purposes of the water management account, as identified in subsection (2) of this section;
(ii) A statement of all moneys expended or obligated from the water management account for the project; and
(iii) A status report on the project, including identification of work begun or completed and any anticipated further work within the next calendar year; and
(c) Any anticipated future projects for which funding may be requested from the water management account.
This information shall also be included as part of the board’s budget report to the joint finance-appropriations committee during each legislative session.
(4) The director of the department of water resources shall assist the board in any way the board deems necessary to fulfill the policy and purpose of the water management account, including technical evaluation of proposed projects and coordination in state and federal agencies.
[42-1760, added 1978, ch. 356, sec. 1, p. 939; am. 1988, ch. 217, sec. 1, p. 412; am. 2019, ch. 317, sec. 2, p. 941; am. 2021, ch. 161, sec. 1, p. 457; am. 2023, ch. 96, sec. 1, p. 290.]
The water resource board shall have the duty of operating a water supply bank. The water supply bank shall make use of and obtain the highest duty for beneficial use from water, provide a source of adequate water supplies to benefit new and supplemental water uses, and provide a source of funding for improving water user facilities and efficiencies.
[42-1761, added 1979, ch. 193, sec. 1, p. 560.]
(1) The water resource board shall adopt rules and regulations governing the management, control, delivery and use and distribution of water to and from the water supply bank in compliance with chapter 52, title 67, Idaho Code.
(2) The board may contract with lessors and lessees to act as an intermediary in facilitating the rental of water. The board may purchase, lease, or otherwise obtain decreed, licensed or permitted water rights to be credited to the water supply bank. The use to which the owner is entitled under the water right shall be reduced by the portion of the water right leased to the bank. The water rights may be retained in the water supply bank for a period as determined by the board, all under such provisions as are specified in the terms of the purchase or lease.
[42-1762, added 1979, ch. 193, sec. 2, p. 560; am. 1990, ch. 318, sec. 1, p. 869.]
The terms and conditions of any rental of water from the water supply bank must be approved by the director of the department of water resources. The director of the department of water resources may reject and refuse approval for or may partially approve for a less quantity of water or may approve upon conditions any proposed rental of water from the water supply bank where the proposed use is such that it will reduce the quantity of water available under other existing water rights, the water supply involved is insufficient for the purpose for which it is sought, the rental would cause the use of water to be enlarged beyond that authorized under the water right to be rented, the rental will conflict with the local public interest as defined in section 42-202B, Idaho Code, or the rental will adversely affect the local economy of the watershed or local area within which the source of water for the proposed use originates, in the case where the place of use is outside of the watershed or local area where the source of water originates. The director shall consider in determining whether to approve a rental of water for use outside of the state of Idaho those factors enumerated in subsection (3) of section 42-401, Idaho Code.
[42-1763, added 1979, ch. 193, sec. 3, p. 561; am. 1990, ch. 318, sec. 2, p. 869; am. 1992, ch. 101, sec. 1, p. 319; am. 2003, ch. 298, sec. 5, p. 813.]
(1) Legislative findings and intent regarding rental of water by the U.S. bureau of reclamation in the Snake River basin within Idaho to augment lower Snake River flows for anadromous fish listed under the endangered species act. The legislature finds that the U.S. bureau of reclamation proposes to release up to four hundred twenty-seven thousand (427,000) acre feet of leased or uncontracted water diverted from the Snake River basin to reservoir storage above Lewiston, and to lease or acquire up to sixty thousand (60,000) acre feet of consumptive natural flow water rights diverted and consumed below Milner dam and above Swan Falls dam from the mainstem of the Snake River to augment flows downstream of Hells Canyon dam during 2005 and through December 31, 2034. The state of Idaho is experiencing serious drought conditions and it is therefore uncertain whether this water will be available for rental for flow augmentation purposes in all years. The legislature further finds that authorization of this legislation is necessary for approval and implementation of the Snake River Water Rights Agreement of 2004 (Mediator’s Term Sheet dated April 20, 2004, and submitted on that date to the SRBA Court in SRBA Consolidated Subcase 03-10022 and SRBA Consolidated Subcase 67-13701, with all appendices to the document), as approved, ratified, and confirmed by the 108th Congress of the United States in the "Snake River Water Rights Act of 2004," Pub. L. No. 108-447 (H.R. 4818), 118 Stat. 3431 to 3441 (December 8, 2004). Therefore, the legislature authorizes the U.S. bureau of reclamation to lease storage and natural flow water rights through the state water supply bank and local rental pools under the limited conditions of this section. Any rentals of water for flow augmentation under any other provision of law, including section 42-108A, Idaho Code, shall be subject to the limitations and conditions of this section and the Snake River Water Rights Agreement of 2004.
(2) Rental of water by the U.S. bureau of reclamation.
(a) Notwithstanding the legislative approval required in section 42-108, Idaho Code, any storage water released and any natural flow water rights leased or acquired by the bureau within the state of Idaho for listed anadromous fish pursuant to this section must be rented through the water bank operated by the Idaho water resource board pursuant to sections 42-1761 through 42-1764, Idaho Code, or, in the case of storage water releases, through local rental committees, created pursuant to section 42-1765, Idaho Code, under their respective water bank rules.
(b) For any rental of water pursuant to this section, the director shall not be required to determine under section 42-1763, Idaho Code, whether the water supply is sufficient for the purpose for which it is sought, whether the rental would cause the use of water to be enlarged beyond that authorized under the water right to be rented, whether such use is in the public interest, or whether such use is consistent with the factors enumerated under subsection (3) of section 42-401, Idaho Code.
(3) Conditions on water rentals.
(a) Any water made available under this section shall be obtained only from willing lessors. Any water rented under this section from sources located within a basin having a local rental committee established pursuant to section 42-1765, Idaho Code, or section 42-1765A, Idaho Code, shall be rented pursuant to this section only through the local rental committee.
(b) Storage water made available under this section shall be limited to four hundred twenty-seven thousand (427,000) acre feet annually, and natural consumptive flow water shall be limited to not more than the sixty thousand (60,000) acre feet annually, that accrue to natural flow water rights, acquired or leased by the U.S. bureau of reclamation pursuant to the terms of the Snake River Water Rights Agreement of 2004. These amounts shall be reduced by other water the U.S. bureau of reclamation provides for flow augmentation for listed anadromous fish from the Snake River basin above Lewiston.
(c) In no event shall the release of water under this section cause the water surface of Lake Cascade to be below the elevation required to maintain a storage volume of three hundred thousand (300,000) acre feet, fifty thousand (50,000) acre feet of which is dead space, which is currently estimated to be at an elevation of four thousand eight hundred nine and two-tenths (4,809.2) feet. In addition, the state of Idaho shall pursue a shaping agreement for any uncontracted water released from Lake Cascade under this section.
(d) The rental or use of water under this section shall be in compliance with any permit, applicable water quality rule and regulation or other requirements of the clean water act, shall not cause jeopardy to other species in the state of Idaho, and shall not result in significant adverse impacts to recreational uses of the waters of the Snake River basin in Idaho. The state of Idaho shall not require any restriction, modification, or condition on the diversion, storage, use, discharge of water, or land use to remedy or address violations of water quality standards or other clean water act requirements to the extent the rental or use of water by the U.S. bureau of reclamation under this section causes the violations.
(e) The U.S. bureau of reclamation shall submit a report to the director by January 15 of each year describing the time, volume and purpose of water provided for listed anadromous fish from the Snake River basin above Lewiston during the past year and shall report on the plan for the spring and summer chinook by April 1 and on the plan for the fall chinook by July 15 of each year.
(f) All water rented or used by the U.S. bureau of reclamation under this section from above Hells Canyon dam must be used for power production purposes within the state of Idaho.
(g) All water rented or used by the U.S. bureau of reclamation under this section shall be subject to the terms and conditions contained in the Snake River Flow Component of the Snake River Water Rights Agreement of 2004.
(h) Nothing herein shall entitle the U.S. bureau of reclamation to rent or use water for flow augmentation upon termination or expiration of the permission given in this section.
(4) Nothing in this section shall be construed to alter, or authorize the U.S. bureau of reclamation to modify in any way its existing contractual obligations, or to constitute a finding by the legislature that the rental or use of storage water or natural flow water rights for flow augmentation for listed anadromous fish or any other species is a beneficial use of water, that it is in the public interest, or whether such use injures existing water rights.
(5) This section shall not become effective until the director certifies to the governor that the U.S. bureau of reclamation’s applications to transfer water right numbers 4616, 4617, 4618, 4623, 4625, 4626, 4627, 4628, 4629, 4630, 4631, 4632, 4633 and 4636, and to amend water right permit numbers 25-07004 and 63-3618 will be withdrawn, or held in abeyance while this section is in effect, and the governor further certifies that the biological opinions required by the Snake River Water Rights Agreement of 2004 have been issued.
(6) This act shall be null, void and of no force and effect upon the expiration or termination of the Snake River Flow Component of the Snake River Water Rights Agreement of 2004. In addition, it is the intent of the legislature to consider the repeal of this section in the event that any of the provisions of the Snake River Flow Component of the Snake River Water Rights Agreement of 2004 are modified or declared arbitrary, capricious or otherwise unlawful or set aside by any federal court or there is a finding of jeopardy by any federal court in regard to any biological opinions for projects operated by the U.S. bureau of reclamation in the Snake River basin in Idaho.
[42-1763B, added 1996, ch. 282, sec. 1, p. 912; am. 2000, ch. 222, sec. 2, p. 616; am. 2001, ch. 394, sec. 1, p. 1372; am. 2002, ch. 349, sec. 1, p. 997; am. 2005, ch. 149, sec. 1, p. 462; am. 2005, ch. 400, sec. 1, p. 1363.]
(1) The approval of a rental of water from the water supply bank may be a substitute for the transfer proceeding requirements of section 42-222, Idaho Code.
(2) Water rights obtained by the board or by a local committee appointed by the board and credited to the water supply bank are not subject to forfeiture for nonuse pursuant to section 42-222(2), Idaho Code, while retained in or rented from the water supply bank. The five (5) year period of nonuse for forfeiture of a water right shall begin to run anew upon removal of a right from the bank.
(3) The rental of water rights from the water supply bank shall not constitute a dedication to the lands of any renter since the rental or distribution of water by the water bank is only incidental to its primary purposes listed in section 42-1761, Idaho Code.
[42-1764, added 1979, ch. 193, sec. 4, p. 561; am. 1990, ch. 318, sec. 3, p. 869; am. 2025, ch. 149, sec. 1, p. 732.]
The water resource board may appoint local committees, including water district advisory committees as provided in section 42-605(6), Idaho Code, to facilitate the rental of stored water. When so appointed, the committee shall have the authority to market stored water between consenting owners and consenting renters under rules and regulations adopted by the board. The director of the department of water resources may approve a general lease which the local rental committee may utilize to meet the approval requirements enumerated in section 42-1763, Idaho Code.
In exercising its authority under this section, the local rental committee, if also the advisory committee of a water district, shall determine, in advance, at the annual meeting of water users of the water district held pursuant to section 42-605, Idaho Code, each year, that portion of the proceeds for the year from the lease of stored water to be paid to consenting contract holders of the storage water rights as reimbursement for their costs and that portion to be retained by the district in which the committee is located. Any proceeds retained by a district shall be used exclusively by the advisory committee of the water district for public purposes as set forth in section 42-613A, Idaho Code, and as provided by resolutions adopted by the water users of the district.
[42-1765, added 1979, ch. 193, sec. 5, p. 562; am. 1986, ch. 78, sec. 2, p. 236; am. 1992, ch. 339, sec. 22, p. 1030.]
(1) The water resource board will appoint a local rental committee to facilitate operation of the water supply bank within the Lemhi river basin comprised of the Lemhi river and all tributary water sources. Section 42-1765, Idaho Code, and the board’s water supply bank rules applicable to the operation of a storage water rental pool shall apply to the operation of the water supply bank in the Lemhi river basin, except as inconsistent with this section.
(2) When so appointed, the local rental committee for the Lemhi river basin shall have authority to rent natural flow water rights between consenting owners and consenting renters.
(3) Rights to the use of water for a portion of the approved period of use under a water right may be accepted into the water supply bank and rented out to satisfy the board’s minimum stream flow water right authorized under section 42-1506, Idaho Code, provided the owner demonstrates to the satisfaction of the director that there will be an equivalent reduction in the extent of beneficial use made under the right.
[42-1765A, added 2001, ch. 373, sec. 2, p. 1310.]
(1) The water resource board shall appoint a local rental committee to facilitate operation of a water supply bank for the off-reservation lease and rental of consumptive use federal reserved water rights held by or on behalf of the Coeur d’Alene tribe within the Coeur d’Alene-Spokane river basin, which shall be known as the Coeur d’Alene tribal water supply bank. Except as is inconsistent with this section, the provisions of section 42-1765, Idaho Code, and the board’s water supply bank rules applicable to the operation of a storage water rental pool shall apply to the operation of the tribal water supply bank for such leases and rentals.
(2) The local rental committee shall have authority to rent consumptive use federal reserved water rights held by or on behalf of the Coeur d’Alene tribe, including natural flow and ground water rights, between consenting owners and consenting renters, for beneficial use outside of the Coeur d’Alene Indian reservation.
(3) Consistent with applicable law, rights to the use of water for a portion of the approved period of use under a consumptive use federal reserved water right held by or on behalf of the Coeur d’Alene tribe may be accepted into the water supply bank and rented out to satisfy any minimum stream flow water right held by the water resource board.
[42-1765B, added 2026, ch. 181, sec. 2, p. 823.]
(1) During the period of a lease, any water right holder who determines that the lease is causing a water right to which the holder is entitled, to be deprived of water to which it may be otherwise entitled, may petition the director of the department of water resources to revoke or modify the lease. Upon such a petition, the director shall cause an investigation to be made and may hold hearings or gather information in some other manner. In the event that the director finds that an interference is occurring, he may revoke or require the lease to be modified to insure that no injury to other water rights occurs.
(2) Any person feeling aggrieved by a decision or action of the director shall be entitled to contest the action of the director pursuant to section 42-1701A(3), Idaho Code.
[42-1766, added 1979, ch. 193, sec. 6, p. 562; am. 1980, ch. 238, sec. 18, p. 549.]
Irrigation districts, canal companies, irrigation companies, water user associations and water associations are authorized to hold elections, subject to the provisions of section 34-106, Idaho Code, for the purpose of submitting a question to their qualified voters, members or stockholders, as the case may be, as to whether the district, company or association should finance the projects and facilities through the Idaho water resource board for the purposes set forth in section 42-1740, Idaho Code. A two-thirds (2/3) vote is required to approve the project. Any irrigation district, canal company, irrigation company, water user association or water association, is hereby authorized to enter into any agreement or agreements with the board with respect to an approved project within the state of Idaho, including but not limited to, agreements providing for the sale, lease or other transfer of title to real and personal property or providing for the maintenance or operation of projects rehabilitated or repaired, or pertaining to the loan or grant of funds for such projects, and said irrigation district, canal company, irrigation company, water user association or water association is hereby authorized to levy assessments as may be necessary therefor. The statutory rights and duties of any such entity shall not in any way be limited or diminished due to any such agreement or agreements with the board. In the event the board acquires an ownership interest, the board shall not assume any liabilities thereon as a result of such transfer of ownership, provided however, that it shall not acquire any voting rights in any irrigation district, canal company, water user’s association or similar entity as a result thereof.
[42-1767, added 1981, ch. 90, sec. 3, p. 128; am. 1995, ch. 118, sec. 58, p. 473.]
The welfare and well-being of the people of the state of Idaho is dependent upon the conservation, development and optimum use of the state’s water resources. Water development involves extensive planning, special studies, public support and efficient implementation. The people of Idaho declared their intention to develop the state’s water resources in the Idaho constitution, article 15, section 7, providing for a state water plan. Funding by the state of Idaho will insure timely implementation of water projects in the public interest.
[42-1775, added 1979, ch. 325, sec. 1, p. 884.]
There is hereby created and established in the agency asset fund the water resources conservation and development trust account. All moneys in the account are to be utilized by the Idaho water resources board, upon appropriation by the legislature, to conduct water project feasibility and engineering studies authorized in conjunction with the powers and duties of the board as provided in section 42-1734, Idaho Code, and to secure revenue bonds authorized by section 42-1739, Idaho Code.
The state treasurer is directed to invest all moneys in the account. All interest or other income occurring from such investment shall accrue to the account.
In the event that a project is approved subsequent to a feasibility study funded from the account, the funds expended from the account shall be included as a cost of the project to be repaid to the fund through repayments contracted by the board. It shall be the duty of the board to specify such repayment provisions without regard to the source of funding of the project.
[42-1776, added 1979, ch. 325, sec. 2, p. 884.]
(1) A water resource adjudication fund is hereby created and established in the state treasury. The state controller may establish multiple fund details within the fund to account for fees collected from different adjudications. Fee moneys in the fund are to be utilized by the department of water resources, upon appropriation by the legislature, to pay the costs of the department attributable to general water rights adjudications conducted pursuant to chapter 14, title 42, Idaho Code.
The state treasurer is directed to invest all moneys in the fund. All interest or other income accruing from such investment shall accrue to the appropriate fund detail.
(2) Fee moneys in the fund may also be utilized by the judiciary, upon appropriation by the legislature, to pay for judicial expenses directly relating to each adjudication including, but not limited to, compensation and expenses of special masters appointed by the Idaho supreme court or by the district court, compensation and expenses of clerical staff of the district court, and publication, notice and mailing costs incurred by the district court.
[42-1777, added 1985, ch. 18, sec. 4, p. 31; am. 1986, ch. 220, sec. 24, p. 582; am. 2006, ch. 400, sec. 5, p. 1224.]
(1) The water rights enforcement account is hereby created and established in the agency asset fund.
(2) All moneys in the water rights enforcement account are reserved, set aside, appropriated and made available until expended as may be directed by the director of the department of water resources in carrying out a water rights enforcement program.
[42-1778, added 1986, ch. 313, sec. 9, p. 774.]
Pursuant to the provisions of Idaho law and legislative funding approval, the Idaho water resource board and the Idaho department of water resources shall conduct a statewide comprehensive aquifer planning and management effort over a ten (10) year period of time beginning in fiscal year 2009. Funding for the statewide comprehensive aquifer planning and management effort shall be used for technical studies, facilitation services, hydrologic monitoring, measurement and comprehensive plan development as well as for personnel costs, operating expenses and capital outlay associated with the statewide comprehensive aquifer planning and management effort.
[42-1779, added 2008, ch. 134, sec. 2, p. 377.]
(1) The aquifer planning and management fund is hereby created in the state treasury. Pursuant to appropriation, moneys in the fund shall be used for technical studies, facilitation services, hydrologic monitoring, measurement and comprehensive plan development as well as for personnel costs, operating expenditures and capital outlay associated with the statewide comprehensive aquifer planning and management effort. The state treasurer shall invest the idle moneys of the fund, and the interest earned on such investments shall be retained by the fund.
(2) There is hereby created in the state treasury, the secondary aquifer planning, management and implementation fund, hereinafter referred to as the secondary fund. The secondary fund shall consist of moneys appropriated to the fund, moneys voluntarily contributed by water users or through water delivery entities or districts having authority to contribute, or through contributions, gifts or grants from any other source, and any other moneys that may hereafter be provided by law. All moneys in the secondary fund shall be used for the purposes for which the moneys were provided through appropriation, contribution or otherwise, and moneys in the secondary fund are appropriated continuously to the water resource board for technical studies, project management services, hydrologic monitoring, measurement and comprehensive plan development, as well as for personnel costs, operating expenditures, capital outlay and water projects associated with the statewide comprehensive aquifer planning and management effort, and shall not be subject to the provisions of the standard appropriations act of 1945 or the provisions of section 67-3516, Idaho Code. The state treasurer shall invest the idle moneys of the fund, and the interest earned on such investments shall be retained by the fund.
[42-1780, added 2008, ch. 321, sec. 3, p. 890; am. 2010, ch. 356, sec. 1, p. 934.]
The director of the department of water resources shall be appointed by the governor for a term of four (4) years commencing as of the first Monday of January, 1975, and thereafter for like terms of four (4) years commencing on the first Monday of January of each such terms of office, and until his successor shall be appointed and qualified in the manner as herein provided, and shall, before entering upon the discharge of the duties of his office, take and subscribe an oath to faithfully discharge the duties of his office. The director of the department of water resources shall also be bonded to the state of Idaho in the time, form and manner prescribed by chapter 8, title 59, Idaho Code. If the office of director shall be vacated by the incumbent by death, resignation or otherwise, it shall be the duty of the governor to fill the same by appointment; and the appointee shall hold his office for the balance of the unexpired term of four (4) years and until his successor is appointed and qualified.
[42-1801, added 1943, ch. 58, sec. 6, p. 120; am. 1970, ch. 12, sec. 1, p. 21; am. 1971, ch. 136, sec. 31, p. 522; am. 1974, ch. 20, sec. 27, p. 533.]
Wherever the words department of reclamation or department of water administration appear in the Idaho Code they shall mean the department of water resources, and wherever the words state reclamation engineer or deputy state reclamation engineer appear in the Idaho Code they shall mean the director of the department of water resources or the deputy director of the department of water resources, respectively.
[42-1801a, added 1970, ch. 12, sec. 2, p. 21; am. 1974, ch. 20, sec. 28, p. 533.]
The director of the department of water resources shall not, during his incumbency, take any active part in political party management or in political campaigns, nor shall he use his official authority or influence for the purpose of interfering with an election or affecting the results thereof, or for the purpose of coercing the political action of any person or body.
[42-1802, added 1943, ch. 58, sec. 7, p. 120; am. 1974, ch. 20, sec. 29, p. 533.]
The governor may remove the director of the department of water resources for inefficiency, neglect of duty, or misconduct in office, delivering to him a copy of the charges and affording him an opportunity of being publicly heard in person or by counsel in his own defense, upon not less than ten (10) days’ notice; such hearing to be held publicly in the office of the governor at the capitol.
If the director shall be removed, the governor shall file in the office of the secretary of state a complete statement of all charges made against such director, and his findings thereon, together with a complete record of the proceedings.
[42-1803, added 1943, ch. 58, sec. 8, p. 120; am. 1974, ch. 20, sec. 30, p. 533.]
Whenever rights, powers and duties have heretofore been vested in, or exercised by, the commissioner of reclamation, the state reclamation engineer or the director of the department of water administration, all such rights, powers and duties are hereby transferred to and are vested in and shall be exercised by the director of the department of water resources, and every act done in the exercise of such rights, powers and duties shall have the same legal effect as if done by the former commissioner of reclamation, state reclamation engineer, or director of the department of water administration, or the department of reclamation or the department of water administration, or any deputy inspector or subordinate officer thereof, and the said director of the department of water resources shall be subject to the same obligations and duties and shall have the same rights arising from the exercise of such rights, powers and duties as if such rights, powers and duties were exercised by the said commissioner of reclamation, state reclamation engineer, or director of the department of water administration, or department of reclamation or department of water administration, deputy or subordinate officer thereof designated in the respective laws which are to be administered by the said director of the department of water resources and he shall be subject to the same penalty or penalties, civil or criminal, for failure to perform any such obligation or duty or for doing a prohibited act as if such obligation or duty or such act were prohibited in the exercise of such rights, powers or duties by the commissioner of reclamation, state reclamation engineer, or director of the department of water administration designated in the respective laws which are to be administered by the said director of the department of water resources, and the office of commissioner of reclamation, the office of state reclamation engineer, the office of director of the department of water administration each is hereby abolished and the said director of the department of water resources is hereby declared to be the successor of the said commissioner, the said engineer, or the said director of the department of water administration as to all rights, powers and duties and as to all proceedings now pending in the said department of reclamation, or department of water administration or in an appeal therefrom or in any action pending in any court of competent jurisdiction in which the said commissioner of reclamation, the state reclamation engineer, or the director of the department of water administration is a party in any such action or proceeding. All books, records, papers, documents, property, real and personal, unexpended appropriations and pending business in any way pertaining to the rights, powers and duties hereby transferred to and vested in the said director of the department of water resources shall be delivered and transferred to the said director of the department of water resources.
This act shall not affect any act done, ratified or confirmed or any right accrued or established or any action or proceeding had or commenced in a civil or criminal cause before this act takes effect but such actions or proceedings may be prosecuted and continued by the said department of water resources and the director of the department of water resources under the provisions of this act.
[42-1804, added 1943, ch. 58, sec. 9, p. 120; am. 1974, ch. 20, sec. 31, p. 533.]
In addition to other duties prescribed by law, the director of the department of water resources shall have the following powers and duties:
(1) To represent the state in all matters pertaining to interstate and international water rights affecting Idaho water resources; and to cooperate with all agencies, now existing or hereafter to be formed, within the state or within other jurisdictions, in matters affecting the development of the water resources of this state.
(2) To prepare a present and continuing inventory of the water resources of this state, ascertain means and methods of conserving and augmenting these and determine as accurately as possible the most effective means by which these water resources may be applied for the benefit of the people of this state.
(3) To conduct surveys, tests, investigations, research, examinations, studies, and estimates of cost relating to availability of unappropriated water, effective use of existing supply, conservation, storage, distribution and use of water.
(4) To prepare and compile information and data obtained and to make the same available to interested individuals or agencies.
(5) To cooperate with and coordinate activities with the director of the department of environmental quality as such activities relate to the functions of either or both departments concerning water quality. Such cooperation and coordination shall specifically require that:
(a) The director meet at least quarterly with the director of the department of environmental quality and his staff to discuss water quality programs. A copy of the minutes of such meeting shall be transmitted to the governor.
(b) The director transmit to the director of the department of environmental quality reports and information prepared by him pertaining to water quality programs and proposed rules pertaining to water quality programs.
(c) The director shall make available to the director of the department of environmental quality and the director of the department of environmental quality shall make available to the director all notices of hearings relating to the promulgation of rules relating to water quality, waste discharge permits, and stream channel alteration, as such directly affect water quality, and notices of any other hearings and meetings which relate to water quality.
(6) To perform administrative duties and such other functions as the board may, from time to time, assign to the director to enable the board to carry out its powers and duties.
(7) After notice, to suspend the issuance or further action on permits or applications, including permits or applications for domestic purposes or uses as defined in section 42-111, Idaho Code, required pursuant to section 42-227, Idaho Code, as necessary to protect existing vested water rights or to ensure compliance with the provisions of chapter 2, title 42, Idaho Code, or to prevent violation of minimum flow provisions of the state water plan.
(8) To promulgate, adopt, modify, repeal and enforce rules implementing or effectuating the powers and duties of the department.
(9) To seek a preliminary or permanent injunction, or both, or a temporary restraining order restraining any person from violating or attempting to violate:
(a) Those provisions of law relating to all aspects of the appropriation of water, distribution of water, headgates and measuring devices; or
(b) The administrative or judicial orders entered in accordance with the provisions of law.
(10) To develop, coordinate and provide, through contract or by other means, for weather modification projects involving cloud seeding that are designed to increase the water supplies of the state by enhancing natural precipitation and that conform to state water planning objectives. To accomplish these purposes, the director is authorized to accept and use funds acquired through legislative appropriation or by gift, grant, contribution or funding received from any private or public individual or entity. All funds accepted under this provision shall be transmitted to the state treasurer for deposit in the water administration account and shall be reserved and made available until expended as ordered by the director for weather modification purposes determined by the director to be beneficial.
(11) To develop and implement a plan for data gathering to determine any effect of the weather modification efforts in which the department is involved.
(12) To receive, file, record, or retain documents of record on media other than paper.
[42-1805, added 1943, ch. 58, sec. 10, p. 120; am. 1969, ch. 469, sec. 4, p. 1352; am. 1974, ch. 20, sec. 32, p. 533; am. 1985, ch. 15, sec. 1, p. 21; am. 1986, ch. 313, sec. 10, p. 775; am. 1993, ch. 32, sec. 1, p. 106; am. 2001, ch. 103, sec. 83, p. 324; am. 2020, ch. 56, sec. 1, p. 136; am. 2025, ch. 129, sec. 5, p. 666.]
The state of Idaho accepts the conditions of section 4 of an act of congress, entitled "An act making appropriations for sundry civil expenses of the government for the fiscal year ending June 30, 1894, and for other purposes," approved August 18, 1894, and the acts amendatory thereof, together with all the grants of land to the state under the provisions of the aforesaid act and its amendments.
The selection, management and disposal of said land shall be vested in the department of water resources.
[(42-2001) 1895, p. 215, secs. 1, 2; reen. 1899, p. 282, ch. 2, secs. 1, 2; reen. R.C. & C.L., sec. 1613; am. 1919, ch. 8, sec. 44, p. 67; C.S., sec. 2996; I.C.A., sec. 41-1701.]
The department of water resources shall receive and file all proposals for the construction of irrigation works to reclaim lands selected under the provisions of this chapter; keep for public inspection maps or plats, on a scale of two (2) inches to the mile, of all lands selected; receive entries of settlers on these lands, and hear or receive the final proof of their reclamation; and do any and all work required in carrying out the provisions of this chapter. It shall have authority to administer oaths whenever necessary in the performance of its duties.
[(42-2002) 1895, p. 215, ch. 2, sec. 5; reen. 1899, p. 282, ch. 2, sec. 5; modified 1905, p. 131, sec. 30; compiled and reen. R.C. & C.L., sec. 1614; C.S., sec. 2997; I.C.A., sec. 41-1702.]
Any person, company of persons, association or incorporated company, constructing, having constructed or desiring to construct, ditches, canals or other irrigation works to reclaim land under the provisions of this chapter, shall file with the department of water resources a request for the selection, on behalf of the state, by the department, of the land to be reclaimed designating said land by legal subdivisions.
This request shall be accompanied by a proposal to construct the ditch, canal or other irrigation works necessary for the complete reclamation of the land asked to be selected. The proposal shall be prepared in accordance with the rules of the department of water resources of Idaho as adopted by the director and with the regulations of the department of the interior; and shall be accompanied by the certificate of the director of the department of water resources that application for permit to appropriate water has been filed in its office, together with the department’s report thereon. It shall state the source of water supply, the location and dimensions of the proposed works, the estimated cost thereof, the price and terms per acre at which perpetual water rights will be sold to settlers on the land to be reclaimed, said perpetual rights to embrace a proportionate interest in the canal or other irrigation works, together with all the rights and franchises attached thereto, and whether the applicants intend to apply for settlement of the lands under the provisions of section 42-2013A, Idaho Code.
In the case of incorporated companies it shall state the name of the company, the purpose of its incorporation, the names and places of residence of its directors and officers, the amount of its authorized and of its paid up capital. If the applicant is not an incorporated company, the proposal shall set forth the name or names of the party or parties, and such other facts as will enable the director to determine his or their financial ability to carry out the proposed undertaking.
[(42-2003) 1895, p. 215, ch. 2, sec. 6; reen. 1899, p. 282, ch. 2, sec. 6; reen. R.C. & C.L., sec. 1615; C.S., sec. 2998; I.C.A., sec. 41-1703; am. 1974, ch. 164, sec. 1, p. 1397.]
A certified check for a sum not less than $250 nor more than $2500, as may be determined by the rules of the department, shall accompany each request and proposal, the same to be held as a guaranty of the execution of the contract with the state, in accordance with its terms, by the party submitting such proposal, in case of the approval of the same and the selection of the land by the department, and to be forfeited to the state in case of failure of said parties to enter into a contract with the state in accordance with the provisions of this chapter.
[(42-2004) 1895, p. 215, ch. 2, sec. 7; reen. 1899, p. 282, ch. 2, sec. 7; reen. R.C. & C.L., sec. 1616; C.S., sec. 2999; I.C.A., sec. 41-1704.]
The person, company of persons, association or incorporated company making application to the department of water resources for the selection of lands by the state, shall have filed with the department an application for a permit to appropriate water for the reclamation of the lands described in his request. This application for a permit shall be of a form prescribed by the department of water resources, and shall be accompanied by two (2) copies of a map of the land to be selected, and it shall show accurately the location and dimensions of the proposed irrigation works. The maps of the lands and proposed irrigation works shall be prepared in accordance with the regulations of the department of water resources of the state of Idaho and the rules of the department of the interior.
[(42-2005) 1895, p. 215, ch. 2, sec. 8; reen. 1899, p. 282, ch. 2, sec. 8; reen. R.C. & C.L., sec. 1617; C.S., sec. 3000; I.C.A., sec. 41-1705.]
Immediately upon the receipt of any request and proposal, as designated in section 42-2003, it shall be the duty of the department to examine the same and ascertain if it complies with its rules and the regulations of the department of the interior. If it does not, it is to be returned for correction; but, if it does so comply, the department shall examine the same and make a written report, stating whether or not the proposed works are feasible, whether the proposed diversion of the public waters of the state will prove beneficial to the public interest; whether there is sufficient unappropriated water in the source of supply; and whether or not a permit to divert and appropriate water through the proposed works has been approved by the department; whether the capacity of the proposed works is adequate to reclaim the land described; whether or not the proposed cost of construction is reasonable; and whether or not the maps filed in its office comply with the requirements of said department and the regulations of the department of the interior; also whether or not the lands proposed to be irrigated are desert in character and such as may properly be set apart under the provisions of the aforesaid act of congress and the rules and regulations of the department of the interior thereunder.
[(42-2006) 1895, p. 215, ch. 2, sec. 9; reen. 1899, p. 282, ch. 2, sec. 9; modified 1905, p. 131, sec. 30; compiled and reen. R.C. & C.L., sec. 1618; C.S., sec. 3001; I.C.A., sec. 41-1706.]
It shall be the duty of the department to satisfy itself as to the financial ability of the applicant to do the things which will be required to be done in the event the application is approved.
In case of approval, the department shall file in the local land office a request for the withdrawal of the land described in said proposal.
No request on which the department of water resources has reported adversely, either as to the water supply, the feasibility of the construction, the cost or capacity of the works or as to the character of the lands sought to be irrigated, shall be approved by the department.
[(42-2007) 1895, p. 215, ch. 2, sec. 10; reen. 1899, p. 282, ch. 2, sec. 10; modified 1905, p. 131, sec. 30; compiled and reen. R.C., sec. 1619; am. 1917, ch. 104, sec. 1, p. 379; reen. C.L., sec. 1619; C.S., sec. 3002; I.C.A., sec. 41-1707.]
In case the department of water resources shall report adversely upon the proposed irrigation works, or where requests and proposals are not approved by the department, the said department shall notify the parties making such proposal of such action and the reasons therefor. The parties so notified shall have sixty (60) days in which to submit a satisfactory proposal; but the department may, at its discretion, extend the time to six (6) months.
[(42-2008) 1895, p. 215, ch. 2, sec. 11; reen. 1899, p. 282, ch. 2, sec. 11; compiled and reen. R.C. & C.L., sec. 1620; C.S., sec. 3003; I.C.A., sec. 41-1708.]
Upon the withdrawal of the land by the department of the interior, it shall be the duty of the department of water resources to enter into a contract with the parties submitting the proposal, which contract shall contain complete specifications of the location, dimensions, character and estimated cost of the proposed ditch, canal or other irrigation works, the amount of water per acre which said works will make available at the water user’s headgate, the price and terms per acre at which such works and perpetual water rights shall be sold to settlers and the price and terms upon which the state is to dispose of the lands to settlers. This contract shall not be entered into on the part of the state until the withdrawal of the lands by the department of the interior and the filing of a satisfactory bond on the part of the proposed contractor, which bond shall be in a penal sum equal to five per cent (5%) of the estimated cost of the works, and shall be conditioned for the faithful performance of the provisions of the contract with the state.
Should it appear at any time, in the judgment of the department of water resources, that the water supply of the party or parties with which such contract had been made, is inadequate to properly and sufficiently irrigate the lands so proposed in said contract to be irrigated, or that water rights have been sold to the full carrying capacity of the proposed ditch, canal or other irrigation works, or that water rights have been sold by said party or parties to the full amount or in excess of the actual appropriation of water made by said party or parties or to the full amount or in excess of the supply of water made actually available by said parties, then in that event the department of water resources shall have the right to enter an order forbidding said parties from making any further or additional sales of water rights or of shares of stock in any company representing or evidencing water rights, and after the entry of such order all further or additional sales of such water or water rights, shares of stock and contracts to sell the same made by said party or parties shall be null and void, and said department of water resources shall have the power to refuse to issue entryman’s certificates thereon. This section shall apply to contracts heretofore made as well as contracts hereafter to be made by the department.
[(42-2009) 1895, p. 215, ch. 2, sec. 12; reen. 1899, p. 282, ch. 2, sec. 12; reen. R.C., sec. 1621; am. 1917, ch. 104, sec. 1, p. 379; reen. C.L., sec. 1621; am. 1919, ch. 70, secs. 1, 2, p. 247; C.S., sec. 3004; I.C.A., sec. 41-1709.]
No contract shall be made by the department which requires a greater time than five (5) years for the construction of the works, but such time may be extended by the department for a period not exceeding three (3) years. All contracts shall state that the work shall begin within six (6) months from date of contract; that at least one-tenth (1/10) of the construction work shall be completed within two (2) years from the date of said contract and that the construction shall be prosecuted diligently and continuously to completion. A failure to complete the works within the time required by the contract, or an extension thereof as herein provided, shall forfeit to the state all rights under the same.
This section shall apply to contracts heretofore made as well as to contracts hereafter to be made by the department.
[(42-2010) 1895, p. 215, ch. 2, sec. 13; reen. 1899, p. 282, ch. 2, sec. 13; reen. R.C., sec. 1622; am. 1911, ch. 35, secs. 1, 2, p. 75; reen. C.L., sec. 1622; C.S., sec. 3005; I.C.A., sec. 41-1710.]
Upon the failure of any parties having contracts with the state for the reclamation of lands segregated under the Carey Act to commence the construction of such ditches, canals or other irrigation works within the time specified by the contract or to perform all of the requirements of said contract within the time specified in said contract with the state to the satisfaction of the director of the department of water resources, it shall be the duty of the director to give such parties written notice of such failure, and if, after a period of sixty (60) days from the sending of such notice, they shall have failed to proceed with the work or to conform to the provisions of their contract with the state, the bond and contract of such parties and all works constructed thereunder shall be at once and thereby forfeited to the state.
It shall be the duty of the director at once so to declare and give notice once each week for a period of four (4) weeks in some newspaper of general circulation in the county in which the work is situated and in one (1) newspaper at the state capital in like manner and for a like period of the forfeiture of said contract, and that upon a fixed day proposals will be received at the office of the department for the purchase of ditches, canals, other irrigation works, water rights and all other rights, privileges and benefits obtained under the provisions of the said contract and for the performance of the provisions of said contract with the state. The time for receiving said bids shall be at least sixty (60) days subsequent to the issuing of the last notice of forfeiture. Upon the request of any bidder the director shall specify in particular the needful things to be done in order to accomplish the substantial and satisfactory performance of said contract, and the director may require good and sufficient bond for such performance before confirming such sale. The money received by the department from the sale under the provisions of this section shall first be applied to the expenses incurred by the state in the forfeiture and disposal and to satisfying the bond, and the surplus, if any exists, shall be paid into the Carey Act trust fund created under section 42-2018, Idaho Code.
[(42-2011) 1895, p. 215, ch. 2, sec. 14; reen. 1899, p. 282, ch. 2, sec. 14; modified 1905, p. 131, sec. 30; compiled and reen. R.C., sec. 1623; am. 1917, ch. 104, p. 380; compiled and reen. C.L., sec. 1623; C.S., sec. 3006; I.C.A., sec. 41-1711; am. 1974, ch. 164, sec. 2, p. 1397; am. 2001, ch. 183, sec. 18, p. 628.]
Nothing in this chapter shall be construed as authorizing the director to obligate the state to pay for any work constructed under any contract, or to hold the state in any way responsible to settlers for the failure of contractors to complete the work according to the terms of their contracts with the state.
[(42-2012) 1895, p. 215, ch. 2, sec. 15; reen. 1899, p. 282, ch. 2, sec. 15; reen. R.C. & C.L., sec. 1624; C.S., sec. 3007; I.C.A., sec. 41-1712; am. 1974, ch. 164, sec. 3, p. 1397.]
Immediately upon the withdrawal of any land for the state by the department of the interior, and the inauguration of work by the contractor, it shall be the duty of the director of the department of water resources, by publication once each week in some newspaper of the county in which said lands are situated, and one (1) newspaper at the state capital, for a period of four (4) weeks, to give notice that said land, or any part thereof as the director in his discretion may deem is for the best interests of the state, is open for settlement, the price for which said land will be sold to settlers by the state and the contract price at which settlers can purchase water rights or shares in such works provided, however, that in said notice two (2) dates of opening shall be stated, the first of which shall be at least thirty (30) days prior to the second. Said notice shall state that at the first opening only ex-service persons may participate in the entry and selection of land, and that on the day of opening all those present will be allowed to make a selection by lot, the method of drawing by lot to be determined by the director of the department of water resources; and that said notice shall state that due proof that they are ex-service persons, will be required of all applicants for the entry and selection of land at the first opening, and shall state what proof will be required.
For the purpose of any drawing and/or selection of land for entry under this section or section 42-2013A, Idaho Code, a husband and wife shall be allowed to join their entries and receive a total of three hundred twenty (320) acres in one drawing or selection. A spouse of an ex-service person, whether or not an ex-service person, shall be considered an ex-service person for the purpose of joining entries under the ex-service person preference granted in this act.
[(42-2013) 1899, p. 282, ch. 2, sec. 16; am. 1901, p. 191, sec. 6; reen. R.C. & C.L., sec. 1625; C.S., sec. 3008; am. 1921, ch. 156, sec. 1, p. 348; I.C.A., sec. 41-1713; am. 1974, ch. 164, sec. 4, p. 1397.]
Any other provision of this chapter notwithstanding, any person or group of persons proposing a project as provided in section 42-2003, Idaho Code, who intend to apply for settlement and entry of the lands for which the project is proposed, shall be given the right of first selection and entry before any lands in the project are opened by the director for settlement as provided in section 42-2013, Idaho Code. This section shall apply to any lands for which a project is proposed regardless of the number of acres proposed to be included.
[42-2013A, as added by 1974, ch. 164, sec. 5, p. 1397.]
Any citizen of the United States or any person having declared his intention to become a citizen of the United States may make application under oath, to the department of water resources, to enter any of said land in an amount not to exceed the maximum number of acres for which such person is permitted to apply by federal law for any one (1) person: provided, that ex-service persons as herein defined shall have a thirty (30) day preference right of entry upon any and all lands opened for entry by the state of Idaho under this act; and such application shall set forth that the person desiring to make such entry does so for the purpose of actual reclamation, cultivation and settlement in accordance with the act of congress and the laws of this state relating thereto, and that the applicant has never received the benefit of the provisions of this chapter to an amount greater than the maximum number of acres for which such person is permitted to apply by federal law, including the number of acres specified in the application under consideration.
Each application shall be accompanied by evidence of the applicant’s ability to meet standards of personal financial responsibility or acceptable personal credit backing or membership in a group as provided in section 42-2003, Idaho Code, and said group shall establish composite financial responsibility and/or acceptable credit. Such standards shall be prescribed by the director by rule and regulation. Such application must be accompanied by a certified copy of a contract for a perpetual water right, made and entered into by the party making application with the person, company or association who has been authorized by the director to furnish water for the reclamation of said lands; and if said applicant has at any previous time entered lands under the provisions of this chapter he shall so state in his application, together with description, date of entry and location of said land. The director shall thereupon file in his office the application and papers relating thereto, and, if allowed, issue a certificate of location to the applicant. All applications for entry shall be accompanied by the payment of five dollars ($5.00) per acre, which shall be paid as a partial payment on the land if the application is allowed; and all certificates when issued shall be recorded in a book to be kept for the purpose. If the application is not allowed, the five dollars ($5.00) per acre accompanying it shall be refunded to the applicant. The director shall dispose of all lands accepted by the state under the provisions of this chapter at a uniform price of ten dollars ($10.00) per acre, half to be paid at the time of entry and the remainder at the time of making final proof by the settler: provided further, that the term ex-service person as used in this act is hereby defined to mean any person who was regularly enlisted, inducted or commissioned, and who served on active duty in any branch of the armed forces of the United States during any period of war recognized by the United States department of veterans affairs for the purpose of awarding federal veterans benefits as may be defined in title 38, U.S. code, chapter 1, section 101(11), and is a citizen of the United States and a bona fide resident of the state of Idaho preceding the date of such opening.
[(42-2014) 1895, p. 215, ch. 2, sec.17; reen. 1899, p. 282, ch. 2, sec. 17; reen. R.C. & C.L., sec. 1626; C.S., sec. 3009; am. 1921, ch. 156, sec. 2, p. 348; I.C.A., sec. 41-1714; am. 1945, ch. 167, sec. 1, p. 250; am. 1949, ch. 106, sec. 1, p. 195; am. 1969, ch. 469, sec.5, p. 1346; am. 1974, ch. 164, sec. 6, p. 1397; am. 1976, ch. 109, sec. 1, p. 433; am. 1977, ch. 41, sec. 1, p. 73; am. 1991, ch. 219, sec. 1, p. 523; am. 1992, ch. 53, sec. 3, p. 158.]
It shall be unlawful for any state official or state employee or appointee of this state having anything to do, directly or indirectly, with the disposal of Carey Act or other public lands of this state, during his or her term of office, to enter, file upon, or make application to enter or file upon any Carey Act lands of this state.
[(42-2015) 1911, ch. 51, sec. 1, p. 117; reen. C.L., sec. 1626a; C.S., sec. 3010; I.C.A., sec. 41-1715.]
It shall be unlawful for the department of water resources, or for any public officer or agent of the state having immediate charge of the filing and entering and distribution of Carey Act lands, during his term of office, to issue to any of the persons indicated in the preceding section any certificate of entry or filing heretofore referred to in the preceding section.
[(42-2016) 1911, ch. 51, sec. 2, p. 117; reen. C.L., sec. 1626b; C.S., sec. 3011; I.C.A., sec. 41-1716.]
Any of said officers, employees, appointees or agents aforesaid who shall violate any of the provisions of the two (2) preceding sections shall be punished by a fine not to exceed $1000, or by imprisonment in the penitentiary of the state of Idaho for a term not to exceed five (5) years.
[(42-2017) 1911, ch. 51, sec. 3, p. 117; reen. C.L., sec. 1626c; C.S., sec. 3012; I.C.A., sec. 41-1717.]
As provided in the act of congress all moneys received by the department of water resources from the sale of lands selected under the provisions of this chapter shall be deposited with the state treasurer, and such sums as may be necessary shall be available for the payment of the expenses of the department of water resources incurred in carrying out the provisions of this chapter.
Such expenses shall be paid by the state controller in the manner provided by law, upon vouchers duly approved by the state board of examiners, for the work performed under the direction of the department of water resources; and any balance remaining over and above the expense necessary to carry out the provisions of this chapter shall constitute a trust fund in the hands of the state treasurer to be used only for the reclamation of other arid lands; provided, however, that any funds in the hands of the state treasurer in excess of fifty thousand dollars ($50,000) may be loaned by the department of finance in the manner and form prescribed by the laws of this state for the loan of school funds; provided, also, that said department of finance shall have and is hereby granted power and authority to sell, transfer or assign said securities, or any part thereof, whenever said department of water resources shall determine that the Carey Act fund has use for, and needs, the money aforesaid in carrying out the purposes of the trust imposed upon the state by the laws of the state or United States. No sale, transfer or assignment, aforesaid, shall be made by said department of finance for less than the face value and accrued interest of said securities.
[(42-2018) 1895, p. 215, ch. 2, sec. 18; reen. 1899, p. 282, ch. 2, sec. 18; am. R.C., sec. 1627; am. 1911, ch. 219, sec. 1, p. 701; C.L., sec. 1627; C.S., sec. 3013; I.C.A., sec. 41-1718; am. 1969, ch. 466, sec. 6, p. 1326; am. 1994, ch. 180, sec. 84, p. 484.]
Within one (1) year after any person, company, or persons, association or incorporated company authorized to construct irrigation works under the provisions of this chapter shall have notified the settlers under such works that they are prepared to furnish water for the full irrigation season under the terms of their contract with the state, which notice, however, must first have been served upon the director of the department of water resources, who must cause an investigation of said works to be made, which shall include a report thereon by an engineer of the department; the said settler shall cultivate and reclaim not less than one-sixteenth (1/16) part of the land filed upon, and within two (2) years after the said notice, the settler shall have actually irrigated and cultivated not less than one-eighth (1/8) of the land filed upon, and within three (3) years from the date of said notice, the settler, or if the settler be in the armed forces of the United States at such time, then any person designated by him, shall appear before the director of the department of water resources, a judge or clerk of any court of record within the state, and make final proof of reclamation, settlement and occupation, which proof shall embrace evidence that he is the owner of shares in the works which entitle him to a water right for his entire tract of land sufficient in volume for the complete irrigation and reclamation thereof; that he has been an actual settler thereon and has cultivated and irrigated not less than one-eighth (1/8) part of said tract; and such further proof, if any, as may be required by the regulations of the department of the interior and the department of water resources of the state of Idaho as promulgated by the director: provided, that any settler, after having made application for entry on such land, or acquired the entry by assignment before entering the service, enters the armed forces of the United States as defined as ex-service person in section 42-2014, Idaho Code, may deduct the actual time he was in such service from the time he would otherwise be required to be an actual settler thereon, and provided further, that it shall not be necessary for such ex-service person to show proof of having actually cultivated or irrigated any portion of such land or placed any improvements thereon if such settler has been in actual service in the armed forces as herein defined for one (1) year, or more, or (who) has been honorably discharged from the service, after having made application for entry, or acquired the assignment thereof before entering the service.
All proof so received shall be submitted to the director of the department of water resources, and shall be accompanied by the final payment for said land, and, upon approval of the same by the director, the settler shall be entitled to his patent. If the land shall not be embraced in any patent theretofore issued to the state by the United States, the proofs shall be forwarded to the secretary of the interior, with the request that a patent to said lands be issued to the state.
When the works designed for the irrigation of lands under the provisions of this chapter shall be so far completed as to actually furnish an ample supply of water in a substantial ditch or canal to reclaim any particular tract or tracts of such lands, the state of Idaho shall, through the department of water resources, make proof of such fact and shall apply for a patent to such lands in the manner provided in the regulations of the department of the interior.
[(42-2019) 1895, p. 215, ch. 2, sec. 19; reen. 1899, p. 282, ch. 2, sec. 19; am. 1901, p. 191, sec. 7; am. 1905, p. 95, sec. 1; am. R.C., sec. 1628; am. 1911, ch. 201, sec. 1, p. 666; reen. C.L., sec. 1628; C.S., sec. 3014; I.C.A., sec. 41-1719; am. 1945, ch. 188, sec. 1, p. 294; am. 1974, ch. 164, sec. 7, p. 1397.]
Where land was unentered at the time that the person, company or corporation authorized to construct irrigation works under the provisions of this chapter gave notice to the settlers under such works that they were prepared to furnish water under the term of their contract with the state, then such settlers or any new entryman entering land after such notice shall have the same time in which to make cultivation, proof and reclamation as is provided in section 42-2019, that is to say, that the time shall start from the date of entry instead of from the date of the notice given.
[(42-2020) R.C., sec. 1628a, as added by 1913, ch. 125, sec. 1, p. 472; reen. C.L., sec. 1628a; C.S., sec. 3015; I.C.A., sec. 41-1720.]
In all cases where lands have been entered under the provisions of section 42-2014 where entryman or his assignee has died prior to making final proof of reclamation, settlement and occupation, proof of reclamation may be made by an executor, administrator, heir or devisee, and proof of settlement may be made by such person or persons, or by an agent thereof. Any such entry may be devised or shall descend as other real estate.
[(42-2021) 1911, ch. 14, sec. 1, p. 30; reen. C.L., sec. 1628b; C.S., sec. 3016; I.C.A., sec. 41-1721.]
Upon the issuance of a patent to any lands by the United States to the state, notice shall be forwarded to the settler upon such land. It shall be the duty of the department of water resources to issue a patent to said lands from the state to the settler.
[(42-2022) 1895, p. 215, ch. 2, part of sec. 20; reen. 1899, p. 282, ch. 2, sec. 20; reen. R.C. & C.L., sec. 1629; C.S., sec. 3017; I.C.A., sec. 41-1722.]
In all cases where it shall, upon due proof being made, appear to the satisfaction of the director of the department of water resources that persons have made entry under what is commonly known as the Carey Act Laws of the state of Idaho, and have paid to the state of Idaho any fees, commissions or purchase moneys as required by the laws of the state of Idaho relating to Carey Act entries, which entries were, and the lands embraced in such entries have been, by order of the state board of land commissioners, the director of the department of water resources, or final decree of a court of competent jurisdiction, eliminated from the Carey Act project or segregation of which it was a part, and such order of elimination or judgment is based upon the ground that the water supply was deficient, and the entry is canceled or relinquished, the treasurer of the state of Idaho is authorized to repay to such persons or their legal representatives the fees, commissions and purchase moneys so paid by them, upon proper showing and presentation of such claim.
[(42-2023) 1921, ch. 52, sec. 1, p. 83; I.C.A., sec. 41-1723.]
Such claim shall be paid from the funds herein appropriated by warrant drawn by the state controller upon the treasurer of the state upon allowance of a verified claim by the state board of examiners in the manner provided by law, but no claim shall be allowed except the approval of the director of the department of water resources be indorsed thereon.
[(42-2024) 1921, ch. 52, sec. 2, p. 83; I.C.A., sec. 41-1724; am. 1994, ch. 180, sec. 85, p. 484.]
The water rights to all lands acquired under the provisions of this chapter shall attach to and become appurtenant to the land as soon as title passes from the United States to the state.
[(42-2025) 1895, p. 215, ch. 2, part of sec. 20; reen. 1899, p. 282, ch. 2, sec. 20; reen. R.C., sec. 1629; reen. C.L., sec. 1629a; C.S., sec. 3018; I.C.A., sec. 41-1725.]
Any person, company or association, furnishing water for any tract of land, shall have a first and prior lien on said water right and land upon which said water is used, for all deferred payments for said water right; said lien to be in all respects prior to any and all other liens created or attempted to be created by the owner and possessor of said land; said lien to remain in full force and effect until the last deferred payment for the water right is fully paid and satisfied according to the terms of the contract under which said water right was acquired.
[(42-2026) 1895, p. 215, ch. 2, part of sec. 20; reen. 1899, p. 282, ch. 2, sec. 20; reen. R.C., sec. 1629; reen. C.L., sec. 1629c; C.S., sec. 3019; I.C.A., sec. 41-1726.]
The contract for the water right upon which the aforesaid lien is founded shall be recorded in the office of the recorder of the county where said land is situate.
[(42-2027) 1895, p. 215, ch. 2, part of sec. 20; reen. 1899, p. 282, ch. 2, sec. 20; am. R.C., sec. 1629; reen. C.L., sec. 1629b; C.S., sec. 3020; I.C.A., sec. 41-1727.]
Upon default of any of the deferred payments secured by any lien under the provisions of this chapter, the person, company of persons, association or incorporated company, holding or owning said lien, may foreclose the same according to the terms and conditions of the contract granting and selling to the settler the water right.
[(42-2028) 1895, p. 215, ch. 2, part of sec. 20; reen. 1899, p. 282, ch. 2, sec. 20; reen. R.C., sec. 1629; reen. C.L., sec. 1629d; C.S., sec. 3021; I.C.A., sec. 41-1728.]
All sales shall be advertised in a newspaper of general circulation, published in the county where said land and water right is situate, for three (3) consecutive weeks, and shall be sold to the highest bidder at the front door of the courthouse of the county, or such place as may be agreed upon by the terms of the aforesaid contract. And the sheriff of said county shall in all such cases give all notices of sale, and shall sell all such lands and water rights, and shall make and execute a certificate of sale to the purchaser thereof.
[(42-2029) 1895, p. 215, ch. 2, part of sec. 20; reen. 1899, p. 282, ch. 2, sec. 20; reen. R.C., sec. 1629; reen. C.L., sec. 1629f; C.S., sec. 3023; I.C.A., sec. 41-1730; am. 1974, ch. 164, sec. 8, p. 1397.]
At such sale no person, company of persons, association or incorporated company, owning and holding any lien, shall bid in or purchase any land or water right at a greater price than the amount due on said deferred payment for said water right and land, and the costs incurred in making the sale of said land and water right.
[(42-2030) 1895, p. 215, ch. 2, part of sec. 20; reen. 1899, p. 282, ch. 2, sec. 20; reen. R.C., sec. 1629; reen. C.L., sec. 1629f; C.S., sec. 3023; I.C.A., sec. 41-1730.]
Upon issuing any certificate of sale it shall be the duty of the sheriff to file for record in the office of the recorder of the county where such land is situated, a certified copy of such certificate of sale.
[(42-2031) 1895, p. 215, ch. 2, part of sec. 20; reen. 1899, p. 282, ch. 2, sec. 20; am. R.C., part of sec. 1629; reen. C.L., sec. 1629g; C.S., sec. 3024; I.C.A., sec. 41-1731.]
Where such land and water rights are not purchased by the lienholder at such foreclosure sale, it shall be the duty of the sheriff to first pay the lienholder out of the proceeds of such sale, the amount of the lien, together with all interest, costs and fixed charges thereon, and to pay any balance remaining to the person against whom such lien has been foreclosed, and for his services in such cases the sheriff shall receive the same fees as are provided by the law in civil cases.
[(42-2032) 1895, p. 215, ch. 2, part of sec. 20; reen. 1899, p. 282, ch. 2, sec. 20; reen. R.C., sec. 1629; reen. C.L., sec. 1629h; C.S., sec. 3025; I.C.A., sec. 41-1732.]
At any time within nine months after the foreclosure sale by the sheriff of the land and water rights aforesaid, the original owner against whom the lien has been foreclosed, may apply to the person, company of persons, association or incorporated company, purchasing at such sale, to redeem such land and water rights and the purchaser shall assign the certificate of sale of such land and water rights to such original owner, upon the payment by him within such nine months, of the amount of the lien for which the same was sold at such foreclosure sale, together with the interest, costs and fixed charges thereon. In case the original owner shall redeem the land and water rights sold as aforesaid, he shall file for record in the office of the recorder, the certificate of sale assigned to him by the purchaser as aforesaid, upon his redemption of such land and water rights.
[(42-2033) 1895, p. 215, ch. 2, part of sec. 20; reen. 1899, p. 282, ch. 2, sec. 20; am. R.C., sec. 1629; reen. C.L., sec. 1629i; C.S., sec. 3026; I.C.A., sec. 41-1733.]
Where the lienholder becomes the purchaser at such foreclosure sale, if such land and water rights are not redeemed by the original owner within nine (9) months, then at any time within three (3) months after the expiration of such nine (9) months, any person desiring to settle upon and use such land and water rights, may apply to the purchaser at such foreclosure sale to redeem such land and water rights, and such purchaser shall assign the certificate of sale of such land and water rights to the person desiring to redeem the same, upon the payment by him, within such three (3) months, of the amount of the lien for which the same was sold at such foreclosure sale, together with the interest, costs and fixed charges thereon. In case the land and water rights shall be redeemed by any person other than the original owner, the sheriff shall, upon presentation of such certificate, issue a deed for such land and water rights to the person so redeeming the same.
[(42-2034) 1895, p. 215, ch. 2, part of sec. 20; reen. 1899, p. 282, ch. 2, sec. 20; reen. R.C., sec. 1629; reen. C.L., sec. 1629j; C.S., sec. 3027; I.C.A., sec. 41-1734.]
If the land and water rights shall not be redeemed by any person within the times and in the manner hereinbefore provided, it shall be the duty of the sheriff, upon presentation of the certificate of sale by the original purchaser, to issue a deed to such purchaser.
[(42-2035) 1895, p. 215, ch. 2, part of sec. 20; reen. 1899, p. 282, ch. 2, sec. 20; reen. R.C., sec. 1629; reen. C.L., sec. 1629k; C.S., sec. 3028; I.C.A., sec. 41-1735.]
The maps in the office of the department of water resources of the lands selected under the provisions of this chapter shall show the location of the canals or other irrigation works approved in the contract with the department, and all lands filed upon shall be subject to the rights of way of such canals or irrigation works. Each right of way shall embrace the entire width of the canal and such additional width as may be required for its proper operation and maintenance, the width of right of way to be specified in the contracts provided for in this chapter.
[(42-2036) 1895, p. 215, ch. 2, sec. 21; reen. 1899, p. 282, ch. 2, sec. 21; reen. R.C. & C.L., sec. 1630; C.S., sec. 3029; I.C.A., sec. 41-1736.]
The department of water resources shall provide suitable rules for the filing of proposals for constructing irrigation works, and for the entry of and payment for the land by settlers, and for the forfeiting of entry by settlers upon failure to comply with the provisions of this chapter. There shall be kept in the office of the department, for public inspection, copies of all maps, plats, contracts for the construction of irrigation works, and of the entries of lands by settlers.
The department shall require from each person, company of persons, association or incorporated company engaged in the construction of irrigation works, under the provisions of this chapter, an annual report, to be submitted to the department on or before November first of each year. This report shall show the number of water rights sold, the number of users of water under said irrigation works, the legal subdivisions of land for which water is to be furnished, the names of the officers of the company, the acreage of land which the said irrigation works are prepared to supply with water, and such other data as the department sees fit to require.
The rules required by this section may be waived in the case of irrigation works being constructed by a person, colony or association of persons to furnish water for land settled upon and being reclaimed by themselves.
[(42-2037) 1895, p. 215, ch. 2, sec. 22; reen. 1899, p. 282, ch. 2, sec. 22; reen. R.C. & C.L., sec. 1631; C.S., sec. 3030; I.C.A., sec. 41-1737.]
The director shall prescribe the duties of all its employees and shall collect the following fees:
(1) For filing an application requesting temporary withdrawal–each project application shall be accompanied by the guaranteed deposit required by section 42-2004, Idaho Code, and by a one hundred dollar ($100) nonrefundable application fee.
(2) For filing an application for segregation of lands–each project application shall be accompanied by the guaranteed deposit required by section 42-2004, Idaho Code, unless the required guaranteed deposit has already been made with an application requesting temporary withdrawal, and by a nonrefundable application fee to be based upon an estimate by the director of the department’s cost of reviewing the project feasibility reports including any necessary on-site inspections of the project. However, in no case shall the application fee be less than five hundred dollars ($500) nor exceed ten dollars ($10.00) per acre of land requested to be segregated.
(3) For filing detailed project plans and specifications and entering a contract to construct the project works–the detailed plans and specifications and the proposed contract for construction of works for the project shall be accompanied by a nonrefundable fee to be based upon an estimate by the director of the department’s costs of reviewing the detailed plans and specifications and the proposed contract, and for inspection of project construction. However, in no case shall the fee be less than five hundred dollars ($500) nor exceed ten dollars ($10.00) per acre of land segregated for the project.
(4) For filing applications to enter project lands–each application to enter project lands shall be accompanied by the payment on the land required by section 42-2014, Idaho Code, and by a one hundred dollar ($100) nonrefundable application for entry fee.
(5) In administering the charges authorized in paragraphs (2) and (3) above, the director shall make every effort to group project studies and in every way take that action which will minimize the fees charged to the settlers. The money collected for fees shall be paid to the treasurer of the state and by him credited to the fund created by virtue of this chapter. No fee shall be required of any state agency proposing to construct a project under this act.
[(42-2038) 1895, p. 215, ch. 2, sec. 23; reen. 1899, p. 282, ch. 2, sec. 23; reen. R.C. & C.L., sec. 1632; C.S., sec. 3031; I.C.A., sec. 41-1738; am. 1974, ch. 164, sec. 9, p. 1397; am. 1981, ch. 314, sec. 1, p. 659.]
The legislature hereby recognizes and acknowledges the need to assure replacement of the grazing and wildlife land uses displaced by Carey Act developments. In order to facilitate such replacements, any settlers having contracts with the state for reclamation of lands segregated under the Carey Act shall include grazing and wildlife restoration work in total or in part to the maximum expenditure of five dollars ($5.00) per acre for grazing restoration and one dollar ($1.00) per acre for wildlife restoration as a legitimate and necessary cost of the reclamation effort. The settlers are hereby authorized to subcontract with the bureau of land management, or any party designated by the bureau, for the purpose of accomplishing this restoration work. Payment by the Carey Act settlers for the restoration work shall be at the time the settler is granted patent to the lands developed. The director of the department of water resources is hereby authorized and directed to accept restoration expenditures as bona fide land development costs of the company up to an amount not to exceed five dollars ($5.00) per acre for grazing restoration and one dollar ($1.00) per acre for wildlife restoration.
In the event that no suitable lands are available for restoration as grazing lands as provided herein, the director is authorized to so certify, and the payment in lieu of restoration shall be made directly to the person with previous grazing rights to the land under Carey Act development.
In those instances where a Carey Act project application is filed for land on which any livestock watering improvements, established trail rights, or recent successful reseedings of less than five (5) years usage are in place and functional at the time of the filing, then these watering improvements, trail rights or reseedings shall be replaced in kind notwithstanding costs in excess of the limitation of five dollars ($5.00) imposed herein. The director of the department of water resources shall be responsible for the negotiation and determination of the values in excess of five dollars ($5.00) per acre which are involved in qualifying water improvements, trail rights or recent reseedings and to whom the payments for excess values shall be made.
[42-2039, as added by 1975, ch. 61, sec. 1, p. 127; am. 1976, ch. 109, sec. 2, p. 434.]
All suits or actions under the provisions of this chapter, shall be brought by the director of the department of water resources.
[(42-2040) 1895, p. 215, ch. 2, sec. 25; reen. 1899, p. 282, ch. 2, sec. 25; reen. R.C. & C.L., sec. 1634; C.S., sec. 3033; I.C.A., sec. 41-1740; am. 1974, ch. 164, sec. 11, p. 1397.]
The legislature finds and declares that the development and settlement of arid lands under the Carey Act as provided in chapter 20, title 42, Idaho Code, and development of Carey Act projects by the Idaho water resource board are in the public interest.
[42-2041, added 1976, ch. 306, sec. 1, p. 1049.]
Pursuant to section 42-1756, Idaho Code, the Idaho water resource board is authorized to plan, finance, construct, acquire, operate, own, maintain, and be the project sponsor and developer of a water resource development project as provided in the provisions of the Carey Act and to use the water resource board revolving development fund and revenues or other additions thereto from any source, including, but not limited to, proceeds from loans secured by project revenues, to finance or guarantee the funding of said project. Said project is known as the Indian Hills project, which is located in Owyhee county approximately two (2) miles southwest of Hammett, Idaho. The Idaho water resource board is authorized by this act to proceed with the project on the basis identified and approved by the Idaho water resource board in the proposal submitted, pursuant to section 42-1734(11), Idaho Code, to the governor of Idaho on November 25, 1974; and the Idaho water resource board is further authorized to proceed in accordance with and exercise the authority for issuance of revenue bonds as provided in section 42-1734(17), Idaho Code. The Idaho water resource board is further authorized to own, sell, convey, mortgage, pledge or incumber the lands for said project and do all things necessary for the construction and completion of said project including the acquisition of all necessary real and personal property in connection therewith, together with all necessary pumping and water distribution works and facilities at the site of such water project and all other necessary and related structures and equipment, and, in addition to the powers conferred elsewhere on the Idaho water resource board, to issue and sell revenue bonds under the provisions of sections 42-1739 through 42-1749, Idaho Code, pledging thereto the revenues which the board shall derive from such water project, and such other revenues as may come into the water resource board revolving development fund from any source whatsoever, including, but not limited to, any tax funds pledged or dedicated to the water resource board revolving development fund, in order to pay the costs of planning, financing, acquiring, construction, operation and maintenance of such water project. The water resource board is further authorized to charge and collect such fees and assessments necessary for payment and reimbursement for all the costs of said project and the water resource board shall have a first and prior lien upon all lands of the project and water rights now appurtenant or to become appurtenant to said lands and water distribution facilities; said lien shall be in all respects prior to any and all other liens no matter how created or attempted to be created by the owner or possessor of the project lands or by law, and shall remain in full force and effect until the last deferred payment for water rights and project facilities is fully paid and satisfied according to the terms of the contract under which water is acquired for said project by persons making entry upon said lands.
[42-2042, added 1976, ch. 306, sec. 2, p. 1049; am. 2006, ch. 126, sec. 2, p. 364.]
If the lands in the project area become available to the state of Idaho by direct grant from the United States, other than through provisions of the Carey Act, the Idaho water resource board is authorized to proceed, as set forth in this act, as though the project were under the provisions of the Carey Act.
[42-2043, added 1976, ch. 306, sec. 3, p. 1050.]
The development of the water project authorized in this act is hereby declared to be exempt from the provision expressed in the last sentence of Section 1 of Chapter 470, Idaho Laws of 1969.
[42-2044, added 1976, ch. 306, sec. 4, p. 1050.]
Any corporation heretofore organized or any corporation that shall hereafter be organized for the operation, control or management of an irrigation project or canal system, or for the purpose of furnishing water to its shareholders, and not for profit or hire, the control of which is actually vested in those entitled to the use of the water from such irrigation works for the irrigation of the lands to which the water from such irrigation works is appurtenant, shall have the right to levy and collect from the holders or owners of all land to which the water and water rights belonging to or diverted by said irrigation works are dedicated or appurtenant regardless of whether water is used by such owner or holder, or on or for his land; and also from the holders or owners of all other land who have contracted with such company, corporation or association of persons to furnish water on such lands, regardless of whether such water is used or not from said irrigation works, reasonable administrative charges, tolls, assessments and charges for the purpose of maintaining and operating such irrigation works and conducting the business of such company, corporation or association and meeting the obligations thereof, which tolls, assessments and charges shall, after projecting the revenue to be derived from an administrative charge of not to exceed fifty dollars ($50.00) to be levied against each holder of a stock certificate of the company:
(1) Be equally and ratably levied and may be based upon the number of shares or water rights held or owned by the owner of such land as appurtenant thereto; or
(2) May be based upon the amount of water used or said tolls, assessments and charges may be based on:
(a) A combination of a charge of a fixed amount per share for annual operation and maintenance and a charge for a fixed minimum amount of water per share, whether used or not, plus an additional charge based on the estimated amount of water to be delivered over the minimum, as requested by the farmer, including the energy costs of said excess delivery; or
(b) A combination of a charge for energy costs, based on the amount of water delivered, and a separate charge for all other operation and maintenance costs, based on the number of shares or water rights; or
(3) May be based upon any other method of assessment fairly allocating the costs of operating and maintaining the irrigation works which has been approved by the affirmative vote of at least two-thirds (2/3) of the shares entitled to vote at any annual, regular or special meeting of the shareholders at which the question of approving the method of assessment is brought properly before the meeting.
Such company, corporation or association of persons shall have a first and prior lien, except as to the lien of taxes, upon the land to which such water and water rights are appurtenant, or upon which it is used, said lien to be perfected, maintained and foreclosed in the manner set forth in this chapter: provided, that any right to levy and collect tolls, administrative charges, assessments and charges by any person, company of persons, association or corporation, or the right to a lien for the same, which does or may hereafter otherwise exist, is not impaired by this chapter.
[(42-2201) added 1913, ch. 120, sec. 1, p. 464; reen. C.L. 129:2; am. 1919, ch. 115, sec. 1, p. 401; C.S., sec. 3040; am. 1925, ch. 107, sec. 2, p. 153; I.C.A., sec. 41-1901; am. 1980, ch. 196, sec. 1, p. 432; am. 1993, ch. 108, sec. 1, p. 276; am. 2016, ch. 132, sec. 1, p. 396.]
The board of directors of a corporation which utilizes section 42-2201, Idaho Code, as the basis of their water stock assessments, after direction by a resolution of a majority of the stockholders at the annual meeting, may:
(1) Make no assessment, or a lesser assessment against:
(a) Shares of corporate stock representing water appurtenant to acres contracted in a federal cropland set-aside program;
(b) Shares of stock appurtenant to parcels of five (5) acres or less where the stockholder maintains his principal residence and where water cannot be delivered through no fault of the irrigation entity or the stockholder; or
(c) Accept an assignment of up to five (5) shares of the corporation’s stock appurtenant to parcels of five (5) acres or less where the stockholder maintains his principal residence and where water cannot be delivered through no fault of the irrigation entity or the stockholder, provided the stockholder will assign ownership of the shares to the corporation together with a title insurance policy or an executed indemnification protecting the corporation from outstanding liens.
(2) To assess and collect for extra water diverted over and above the amount originally estimated and paid for pursuant to the corporation’s assessment pursuant to section 42-2201, Idaho Code, which extra water was diverted during the irrigation season, by mailing a supplemental assessment at the end of the irrigation season to collect for extra water diverted which was in excess of preseason estimates, to refund as necessary or credit against future assessments if the final charge is less than the amount previously paid. The board of directors collects or pays interest on overages and underages as appropriate from the due date of the supplemental assessment. Interest on said overages and underages shall not exceed twelve percent (12%) per annum.
[42-2201A, added 1993, ch. 108, sec. 2, p. 277.]
On or after the first day of November and prior to the first day of January thereafter, the company, corporation or association, claiming the benefit of the lien herein provided, as against any parcel of land upon which the tolls, assessments and charges shall not have been paid, shall file for record with the county recorder for the county in which such land is situated, a statement containing the name of such company, corporation or association, the general or common name of the canal systems or irrigation works, or a general description of the same sufficient for identification, a statement of the lien claimant’s demand, after deducting all just credits and offsets, a description of the particular tracts or parcels of land to be charged with the lien sufficient for identification, with the name of the owner, or reputed owner, if known, of each particular tract or parcel, which claim must be verified by the oath of the claimant or its attorney or agent, to the effect that affiant believes the same to be just: provided, that the claim or claims for liens against all land upon which the same is claimed for one year, may be made in one or more instruments, regardless of the number of owners, reputed owners or proprietors.
[(42-2203) 1913, ch. 120, sec. 3, p. 465; reen. C.L. 129:4; C.S., sec. 3042; I.C.A., sec. 41-1903.]
No lien provided for in this chapter binds any land for a longer period than three (3) years after the filing of the statement mentioned in section 42-2203, Idaho Code, unless proceedings be commenced in a proper court within that time to enforce such lien.
[(42-2205) 1913, ch. 120, sec. 5, p. 466; reen. C.L. 129:6; C.S., sec. 3044; I.C.A., sec. 41-1905; am. 2013, ch. 60, sec. 1, p. 136.]
In the event that the owner or holder or occupant of the premises upon which water has been purchased or contracted for, has not, at the time of the filing of the claim of lien provided for in section 42-2203, received title to the premises so occupied or held by him, and liens are filed as provided for in this chapter, the proceedings for foreclosure herein provided for shall relate only to the said water or water rights and the said water or water rights shall be sold in like manner as if title to the premises had been acquired by the holder or occupant of said land, or the owner or holder of the said water right or water appurtenant to said land.
[(42-2206) 1919, ch. 115, sec. 2, p. 402; C.S., sec. 3045; I.C.A., sec. 41-1906.]
Proceedings in the way of civil action in the district courts may be commenced and maintained to enforce the lien herein provided, which proceedings may embrace one or more parcels of land, or one or more landowners, or reputed landowners; and except as otherwise provided herein, the provisions of the Idaho laws relating to civil actions, new trials and appeals, are applicable to and constitute the rules of practice in proceedings under this chapter; and except as otherwise provided, the nature and effect of a judgment of foreclosure shall be the same as the foreclosure of a first real estate mortgage: provided, that the sale of such land under foreclosure shall pass to the purchaser, all ditch and water rights appurtenant thereto, and the interests, including corporate stock, of the owner or holder of such land in such corporation, company or association.
[(42-2207) 1913, ch. 120, sec. 6, p. 466; reen. C.L. 129:7; C.S., sec. 3046; I.C.A., sec. 41-1907.]
All charges levied under the provisions of this chapter shall draw interest at twelve per cent (12%) per annum from the time when due and payable, to the entry of judgment of foreclosure, and the right of lien shall extend to such interest and the costs of foreclosure.
[(42-2208) 1913, ch. 120, sec. 7, p. 466; reen. C.L. 129:8; C.S., sec. 3047; I.C.A., sec. 41-1908; am. 1933, ch. 101, sec. 1, p. 162; am. 1974, ch. 28, sec. 1, p. 979; am. 1982, ch. 89, sec. 1, p. 164.]
It shall be the duty of the company, corporation or association of persons filing a lien statement as provided in section 42-2203, to cause a release of the same upon the records of the county where filed, in the same manner and with like penalties for failure as is or may be provided by law in case of real estate mortgages.
[(42-2209) 1913, ch. 120, sec. 10, p. 467; reen. C.L. 129:9; C.S., sec. 3048; I.C.A., sec. 41-1909.]
This chapter shall not be held to affect the rights of any person, corporation, company or association of persons to charge or collect tolls, charges or assessments to which it may be otherwise entitled; nor the right of a corporation to make assessments upon its stock according to law; nor the obligation of a stockholder or member of any corporation or association otherwise created; nor any other lien or right of lien given by the laws of this state, or otherwise.
[(42-2210) 1913, ch. 120, sec. 9, p. 466; reen. C.L. 129:10; C.S., sec. 3049; I.C.A., sec. 41-1910.]
Any corporation of the character described in this chapter, in order to secure additional water for the irrigation of the lands of its stockholders to supplement their natural flow rights, by the construction of dams or other works and the storing or impounding of winter flow, or flood, or other waters, may contract with the United States bureau of reclamation, public works administration, reconstruction finance corporation, resettlement administration or any other federal agency or instrumentality, or with any person, agency or corporation, for the construction of necessary works, or the loan of moneys for such construction, and may provide in such contract that said corporation will annually levy an assessment against its stockholders sufficient in amount to pay all obligations created by such contract, as the same mature, and will collect the same as tolls, and may provide that no part of such supplementary water shall be delivered to any stockholder until his annual toll and assessment levied with respect to such supplemental water has been paid. Any corporation so contracting shall not deliver such supplemental water to any stockholder or user except upon payment in full of such annual toll and assessment; provided, however, that no such contract may be entered into by any corporation unless and until its board of directors shall have been authorized so to do by resolution of its stockholders adopted at a regular or special meeting thereof. Nothing herein contained shall be construed to in any way affect or impair any rights such corporation now has under the law to levy and collect assessments for corporate purposes.
[42-2211, added 1937, ch. 234, sec. 1, p. 420.]
When any corporation organized for the operation, control or management of an irrigation project or canal system, or for the purpose of furnishing water to its shareholders and not for profit or hire, shall receive through condemnation proceedings, or by contract made under threat of such proceedings, any funded amount to meet increased maintenance and operation expenses in future years as opposed to funds received as compensation for expenses incurred or to be incurred for the reconstruction or relocation of irrigation works, such funded amount shall constitute a permanent trust fund in the treasury of such company, and as such it shall be kept separate and apart from other funds of the company and such funded amount shall be invested by the board of directors of such company under the standards specified in the Prudent Man Investment Act as set forth in chapter 5, title 68, Idaho Code.
[42-2212, added 1965, ch. 186, sec. 1, p. 393.]
When any corporation organized for the operation, control or management of an irrigation project or canal system, or for the purpose of furnishing water to its shareholders and not for profit or hire, shall have accumulated, out of assessment funds or otherwise, reasonable reserves for emergency, contingent or non-recurring expenses and charges, the funds held in such reserves may be invested by the board of directors of such company under the standards specified in the Prudent Man Investment Act as set forth in chapter 5, title 68, Idaho Code.
[42-2213, added 1965, ch. 186, sec. 2, p. 393.]
Any company, association of persons, or corporation, engaged in the operation, control or management of any irrigation project or canal system for the purpose of furnishing water to its shareholders, not for profit or hire, shall have the right, when its articles of incorporation shall so provide, to include as a part of the service of maintenance and operation of the project or canal system the treatment and eradication of noxious weeds growing on the lands within the boundaries of said project or system, and adjacent thereto.
[42-2301, added 1945, ch. 30, sec. 1, p. 37.]
To provide funds to meet necessary charges and expenses for the treatment and eradication of noxious weeds as provided in section 42-2301, the board of directors of such company, association of persons, or corporation, may utilize monies available under the provisions of section 42-2201, and may also levy and collect, pursuant to title 42, chapter 22, money for necessary charges and expenses against any given piece of land according to the benefits which shall accrue to the same, to be determined by the board of directors of such company, association of persons, or corporation.
[42-2302, added 1945, ch. 30, sec. 2, p. 37.]
The work to be carried on under the provisions of this act shall be in cooperation with the weed program of the constituted authorities of the state, pursuant to chapter 235 of the 1939 Session Laws, and Acts amendatory thereof, but shall not interfere with or usurp any of the powers which are now granted by the provisions of said act, or acts amendatory thereof.
[42-2303, added 1945, ch. 30, sec. 3, p. 37.]
The provisions of this act shall not be construed as mandatory, but permissive only as to any company, association of persons, or corporation, referred to in section 42-2301.
[42-2304, added 1945, ch. 30, sec. 4, p. 37.]
Any corporation heretofore organized or any corporation that shall hereafter be organized for the operation, control or management of an irrigation project or canal system, or for the purpose of furnishing water to its shareholders and not for profit or hire, shall have and exercise all the rights, powers, and privileges in addition to those already granted and existing.
(1) To divide into districts the territory included in such project or system and to change from time to time the number and boundaries of such districts;
(2) To elect its directors from such districts by a vote in which all the stockholders of the corporation may participate, determine the number of directors to be elected from each district, fix their terms of office and prescribe the times and manner of choosing their successors;
(3) To hold regular annual meetings at which the stockholders who are represented in person or by proxy shall constitute a quorum for the transaction of business and shall have the power by a majority vote of the stock so represented to elect directors and transact any other business of the corporation proper to be done;
(4) To provide for the appointment of an executive committee from the board of directors to be composed of not less than three (3) thereof. Such committee shall have all the powers, rights and privileges of the board of directors and may meet at such times and places as the bylaws may provide or the board of directors may determine, and the acts of such committee shall in all matters be valid as against the corporation;
(5) To provide by amendment to its articles of incorporation or by adopting new articles of incorporation for the treatment and eradication of noxious weeds growing on the lands within the boundaries of said irrigation project and adjacent thereto and to drain excess water from said lands;
(6) To change or amend its articles of incorporation or bylaws or adopt new articles or new bylaws, by a two-thirds (2/3) vote of the stock represented, at any regular meeting of the stockholders or at any special meeting duly called for that purpose in accordance with the provisions of sections 30-310 and 30-311, Idaho Code; provided that any proposed changes in the articles of incorporation or bylaws or any new articles of incorporation or bylaws shall be either proposed at a meeting of the stockholders or approved by at least one-third (1/3) of the board of directors. Before being finally adopted, notice of such proposed articles, bylaws, or changes therein, or a summary of them, shall be given by an advertisement thereof for two (2) weeks in a newspaper of general circulation within the canal company service area and the county in which the principal place of business of the corporation is located or by written notice, placed in the United States mail, postage prepaid, and addressed to the stockholder at his last known post office address;
(7) To prohibit any officer, director, manager or employee of the corporation from acting as proxy for any other person at any meeting of the stockholders;
(8) To prescribe by its articles of incorporation or bylaws the manner in which the powers given by law shall be exercised;
(9) To provide by amendment to its articles of incorporation or by adoption of new articles of incorporation that the directors be divided into two (2) or three (3) classes, each class to be as nearly equal in number as possible; the term of office of directors of the first class to expire at the first annual meeting of directors after their election, that of the second class to expire at the second annual meeting after their election, and that of the third class, if any, to expire at the third annual meeting after their election. At each annual meeting after such classification, the number of directors equal to the number of the class whose term expires at the time of such meeting shall be elected to hold office until the second succeeding annual meeting, if there be two (2) classes, or until the third succeeding annual meeting, if there be three (3) classes. Immediately after the first election following such amendment or adoption as provided in this subsection, each such class shall be selected by lot by the elected directors at their organizational meeting; and
(10) To provide for a notice of a meeting of the stockholders or the election of directors by an advertisement thereof for two (2) weeks in a newspaper of general circulation within the canal company service area and the county in which the principal place of business of the corporation is located or by written notice, placed in the United States mail, postage prepaid, and addressed to the stockholder at his last known post office address.
[(42-2401) 1923, ch. 133, sec. 1, p. 194; I.C.A., sec. 41-2001; am. 1943, ch. 150, sec. 1, p. 296; am. 1980, ch. 197, sec. 32, p. 456; am. 1982, ch. 63, sec. 1, p. 125; am. 1989, ch. 350, sec. 1, p. 877; am. 2022, ch. 105, sec. 1, p. 357.]
The purposes for which said corporation has been organized shall be determined from the articles of incorporation of any such corporation.
[(42-2402) 1923, ch. 133, sec. 2, p. 194; I.C.A., sec. 41-2002.]
Any and all elections and any and all things done and performed by any such corporation organized under the laws of this state, not otherwise invalid, had, done or performed in pursuance of, or in reliance upon, chapter 65 of the General Laws of the state of Idaho, passed at the sixteenth session of the state legislature of 1921, approved March 12, 1921, are hereby validated.
[(42-2403) 1923, ch. 133, sec. 3, p. 194; I.C.A., sec. 41-2003.]
The rights, powers and privileges herein created and granted shall vest in and be held and exercised by the stockholders except in so far as they may be expressly delegated to the directors by the articles of incorporation or by-laws of the corporation.
[(42-2404) 1917, ch. 46, sec. 2, p. 106; reen. C.L. 129:12; C.S., sec. 3051; I.C.A., sec. 41-2004.]
The owner of any lands to which a water right has been made appurtenant pursuant to the provisions or operation of the act of congress of the United States known as the Carey Act may transfer such water right, in whole or in part, to other land owned by him which can be served and irrigated by the same Carey act irrigation system and may, by sale, or by lease for a period not exceeding one year, transfer such water right or any portion thereof to another for use upon or in connection with any such other lands, in the manner and on the condition set forth in this chapter.
[(42-2501) 1917, ch. 159, sec. 1, p. 484; reen. C.L. 130:1; am. 1919, ch. 171, sec. 1, p. 544; C.S., sec. 3052; am. 1925, ch. 94, sec. 1, p. 134; I.C.A., sec. 41-2101.]
The transfer of a water right, in whole or in part, made by such person to other lands so owned by him shall be evidenced by a written instrument executed and acknowledged by such person as other conveyances of real estate, reciting therein the facts, stating the amount of the right transferred and describing the land from which and the land to which the transfer is to be made, and the transfer of a water right or any portion thereof from one person to another shall be evidenced by a written instrument containing similar recitals and executed and acknowledged in like manner by the grantor or lessor.
All of such instruments shall be recorded in the office of the county recorder of the county or counties where the land is situated from which such right is transferred and also in the office of the county recorder of the county or counties where the land is situated to which such right is transferred, and to all of such instruments the recording acts of the state shall apply.
[(42-2502) 1917, ch. 159, sec. 2, p. 484; reen. C.L. 130:2; C.S., sec. 3053; I.C.A., sec. 41-2102.]
Before the transfer of a water right shall take effect under this chapter a person interested therein must apply to the board of directors of the corporation operating such Carey Act irrigation system for consent to the making of such transfer, and if such consent is given a resolution showing the same and the extent or portion of the right to be transferred shall be adopted by said board and a copy thereof, with proper reference to the date of its passage, shall be incorporated in the instrument evidencing such transfer, and upon the recording of such instrument, as provided in section 42-2502, such transfer shall be complete.
[(42-2503) 1917, ch. 159, sec. 4, p. 484; compiled and reen. C.L. 130:4; C.S., sec. 3054; I.C.A., sec. 41-2103.]
When a transfer of a water right or of a portion thereof is made effectual under this chapter otherwise than by lease the certificate or certificates evidencing the ownership thereof shall be surrendered to the corporation, and the officers of the corporation shall issue new certificates to the person or persons entitled thereto, specifying the land or lands to which the water right is appurtenant after such transfer and the amount of such right which is appurtenant to any of said lands.
[(42-2507) 1917, ch. 159, sec. 8, p. 484; reen. C.L. 130:8; C.S., sec. 3058; I.C.A., sec. 41-2107.]
A lease of a water right or of a portion thereof shall not change the appurtenancy of such right, but the same shall remain an appurtenant of the land of the lessor, subject only to the rights of the lessee to make use of the same.
[(42-2508) 1917, ch. 159, sec. 9, p. 484; reen. C.L. 130:9; C.S., sec. 3059; I.C.A., sec. 41-2108.]
No water right or any portion thereof shall be transferred from one tract of land to another under the provisions of this chapter where there is a valid existing mortgage or other lien or encumbrance on the land to which such water right is appurtenant without the consent of the holder of such mortgage or other lien or encumbrance, which consent shall be evidenced by an instrument in writing executed and acknowledged as other instruments relating to the conveyance of real estate.
[(42-2509) 1917, ch. 159, sec. 10, p. 484; reen. C.L. 130:10; C.S., sec. 3060; I.C.A., sec. 41-2109.]
Whenever the United States shall, through its proper officers, authorize the construction of any irrigation works in this state under the provisions of the Reclamation Act of June 17, 1902, no lands belonging to the state whose irrigation depends upon the construction of such works shall, after such authorization for construction shall have been publicly announced or communicated by such proper officer to the governor of the state, be sold except in conformity with the classification of farm units by the United States, and the title to such lands shall not pass from the state, until the applicant therefor shall have fully complied with the provisions of the laws of the United States, and the regulations thereunder, concerning the acquisition of the right to use water from such works, and shall produce the evidence thereof duly issued.
[(42-2701) 1905, p. 373, sec. 2; reen. R.C., sec. 1583; reen. C.L. 131:1; C.S., sec. 3069; I.C.A., sec. 41-2301.]
In all contracts for the sale of lands, hereafter made, the irrigation of which depends upon the construction of irrigation works under the provisions of the Reclamation Act of June 17, 1902, it shall be provided that the purchaser shall apply for a water right from the government works, and subscribe such lands in the water users’ association of the project in which they are located, within one (1) year after said contract of purchase is made, or in case there should be no association, at the time of the sale of the state lands, to which such subscription can be made, it shall be provided in said contract, that such application and subscription shall be made within one (1) year after such association is formed, and upon failure of the purchaser or purchasers to comply with the provisions of this section, the lands so purchased shall revert to the state together with the payment or payments made thereon, as fully and completely as if no sale had ever been made.
[(42-2702) R.C., sec. 1583a, as added by 1909, p. 70; reen. C.L. 131:2; C.S., sec. 3070; I.C.A., sec. 41-2302.]
The state land board is hereby authorized and directed on behalf of the state to make and enter into suitable contracts with the secretary of the interior to provide for the irrigation of state lands within or adjacent to the national irrigation projects constructed or to be constructed in this state under the provisions of the act of congress of June 17, 1902, known as the reclamation act, and to provide for increasing the capacity of the irrigation works of such projects and extending them and perfecting them to provide for the irrigation of such state lands.
[(42-2703) 1909, p. 331, sec. 1; reen. C.L. 131:3; C.S., sec. 3071; I.C.A., sec. 41-2303.]
The funds accumulated and to be accumulated under the provisions of section 42-2018 are hereby appropriated for the purpose of carrying out the provisions of such contracts between the state land board and the secretary of the interior and for making the payments provided for therein: provided, that no obligations shall be incurred under this chapter in excess of the amount available in said fund.
[(42-2704) 1909, p. 331, secs. 2, 3; reen. C.L. 131:4; C.S., sec. 3072; I.C.A., sec. 41-2304.]
It may be provided in such contracts that the fund appropriated herein may be used under the direction of secretary of interior to supplement such funds as may be available for this purpose from the national reclamation fund under the act of congress of June 17, 1902, for the irrigation of said state lands.
[(42-2705) 1909, p. 331, sec. 4; reen. C.L. 131:5; C.S., sec. 3073; I.C.A., sec. 41-2305.]
Provision shall be made for the collection of all sums expended by the state under this chapter and their return to the state is not to exceed ten (10) annual installments, said installments to be collected and returned to the state at the same times and in similar manner as may be provided for the collection of the installments due to the national government. Such installments when returned to the state shall constitute a trust fund in the hands of the state treasurer to be used only for the reclamation of other arid lands.
[(42-2706) 1909, p. 331, secs. 5, 6; reen. C.L. 131:6; C.S., sec. 3074; I.C.A., sec. 41-2306.]
Whenever the board of county commissioners of any county shall adjudge that it is desirable and for the general welfare and benefit of the people of the county and for the interest of the county to convey real property belonging to the county, however acquired, whether by tax foreclosure or in any other manner, not necessary for the use of the county, to the United States of America for use in connection with federal projects within the scope of the federal Reclamation Act of June 17, 1902, and federal acts amendatory thereof and supplemental thereto, for the reclamation and irrigation of arid lands, such board of county commissioners, by majority vote, are hereby authorized to convey such property to the United States of America for use in connection with such federal projects as aforesaid for the reclamation and irrigation of arid lands.
[42-2707, added 1943, ch. 108, sec. 1, p. 210; am. 1945, ch. 28, sec. 1, p. 35.]
Before making any such conveyance, the board of county commissioners shall enter a resolution declaring the intention of such board to make a conveyance of real property under authority of this act, and shall cause notice thereof to be published for at least two (2) weekly issues of the official newspaper of said county before final action shall be taken, specifying the time and place where objections to such action may be filed and the time when such objections will be considered. Provided; that if no newspaper is published in said county, such notice may be given by posting such notice in three public places in the county, one (1) of which shall be at the county court house, in the place provided for posting similar notices, for a period of at least ten (10) days immediately preceding the time fixed for hearing objections.
[42-2708, added 1943, ch. 108, sec. 2, p. 210.]
If no objections are filed or objections are overruled, the board may then convey the real property proposed in said resolution to be conveyed, as herein authorized; such conveyance may be for such consideration as may be determined by said board.
[42-2709, added 1943, ch. 108, sec. 3, p. 210.]
The boards of county commissioners of the several counties of the state of Idaho are hereby authorized and empowered to make all necessary orders for and cause to be constructed and maintained public drainage or irrigation systems, reservoirs, drains and ditches and other irrigation or drainage works for the irrigation or drainage of lands lying in said counties, and for such purposes, to enter into contracts for the construction or use of reservoirs and other irrigation or drainage works, constructed or to be constructed by the United States under the provisions of the federal reclamation laws, or for such works built or to be built by other parties or agencies and to take all steps and do all acts necessary or proper to secure an ample water supply for the lands in the county requiring irrigation and adequate drainage works for the lands requiring drainage, and to promote the beneficial use of the public waters of the state and the health and general welfare of the county by means of such works: provided, that nothing herein contained shall be construed to give such board of county commissioners authority over irrigation works except those acquired or constructed by the several counties under the provisions of this chapter: provided, also, that no county bonds shall be issued or sold for such purposes until such indebtedness has been authorized by two-thirds (2/3) of the electors of the county (having the qualifications provided in section 42-2803, Idaho Code,) voting at an election to be held, subject to the provisions of section 34-106, Idaho Code, for such purpose.
[(42-2801) 1921, ch. 222, sec. 1, p. 492; I.C.A., sec. 41-2401; am. 1995, ch. 118, sec. 59, p. 474.]
The board of county commissioners may enlarge, improve or extend existing reservoirs, canals and other irrigation and drainage works to provide for the irrigation or drainage of additional lands in such county, or to improve the water supply or drainage for such lands, and may contract with the owners of existing irrigation or drainage works to provide for such enlargement, improvement or extensions, and may purchase and complete incomplete irrigation or drainage works and may purchase assignments of partially paid reservoir or storage rights and the assignment of such contracts, and may complete payment thereon and acquire such storage and reservoir rights for the reclamation or more complete irrigation of lands in such county, and in so doing shall proceed in similar manner as in the case of entirely new works but subject to the same condition as to approval of the bond issue by the electors of the county.
[(42-2802) 1921, ch. 222, sec. 2, p. 492; I.C.A., sec. 41-2402.]
In calling and holding such elections and canvassing the vote and in all other proceedings not otherwise provided herein, the board of county commissioners shall follow the procedure prescribed by law for county bond elections, and at such elections to authorize indebtedness, the electors shall have the qualifications prescribed by section 31-1903 for other county bond elections, and in addition thereto must be taxpayers in said county.
[(42-2803) 1921, ch. 222, sec. 3, p. 492; I.C.A., sec. 41-2403.]
Before any public irrigation or drainage work specified in this chapter shall be established, a petition signed by one hundred (100), or twenty-five per cent (25%) of the owners of the land described in such petition, as the land proposed to be benefited, setting forth the necessity therefor, that the same will be a public benefit and will promote the public welfare or public health, the description of the proposed irrigation or drainage works in general terms, together with a description of the land intended to be benefited thereby, shall be filed with the county auditor. Upon the filing of such petition, one or more of such petitioners shall deposit with the county treasurer of such county from time to time sums of money in an amount to be determined and fixed by the board of county commissioners to be used by them to defray all costs and expenses incurred under the provisions of this chapter to and including all expenses of the bond election and until such time as funds for said work are otherwise available: provided, that the amount of such deposits shall be included in the cost of the works in the event the indebtedness for the same shall be authorized at such election and reimbursement shall thereafter be made to the parties depositing the same.
[(42-2804) 1921, ch. 222, sec. 4, p. 492; I.C.A., sec. 41-2404.]
Upon the filing of the petition, and the making of the cash deposit, as herein provided, the board of county commissioners shall within thirty (30) days thereafter file a copy of said petition with the director of the department of water resources of the state of Idaho, and request him to examine into and report to said board, all matters necessary and essential to disclose the practicability, necessity or advisability of the construction of the proposed works or improvement, or the proposed contract for the use or benefit of the works constructed, and thereupon said director of the department of water resources shall, without delay, proceed and examine all matters named and referred to in said petition and make such survey of the territory likely to be affected by the proposed improvement as will enable him to fully determine whether the same is necessary or practicable, and report accordingly, and if some other or different plan than that described in the petition is found practicable, said director of the department of water resources shall so report giving such details and information as will be necessary to fully inform the board of county commissioners on all matters pertaining to the practicability or feasibility of the proposed plan, either as outlined in said petition, or according to some other or different plan that may be designated and recommended by said director of the department of water resources, but it shall be his duty to outline and designate all changes, whether by extension, enlargement, additions, or otherwise, that may be necessary to make the plan of the proposed improvement practicable and feasible, showing the probable size, character and cost of such proposed work, and if he finds the improvement petitioned for is feasible, he shall include in his report a map of the proposed improvement and also give the description of the tracts of land which he deems would be benefited thereby, and the probable area that is likely to be irrigated or drained or provided with a supplemental water supply, or otherwise affected by the proposed improvement, and such other information as the board may request. The director of the department of water resources is authorized to employ such assistance as the character of the work requested of him may require, but before incurring any expense he shall file with the county commissioners an estimate of the amount of money required to perform such work and upon the approval by the county commissioners of such estimate, said amount shall be required to be deposited with the county treasurer as other deposits are herein required, the same to be used in paying the expense incurred by said director of the department of water resources in the performance of said work. Upon the filing of the report of the director of the department of water resources as herein provided, and upon receipt of notice of approval of the project by the director of the department of water resources said board shall within ten (10) days proceed in like manner as provided by law for the procedure of the board of county commissioners in calling and conducting other county bond elections, and in like manner as provided in the laws governing county bond elections for other purposes, shall canvass the returns of said election, and if two-thirds (2/3) of the qualified electors, as in this chapter provided, voting at such election shall be found to have voted in favor of authorizing such indebtedness or bond issue, then the board of county commissioners shall make and file for record in the office of the county recorder an order establishing such county irrigation or drainage project; shall proceed to apportion and assess the benefits of such proposed irrigation or drainage works or such proposed contract, to the lands to be benefited thereby and in making such apportionment of benefits shall proceed in like manner as provided by law for the proceedings of the directors of irrigation districts in apportioning benefits in irrigation districts, and in like manner as in the case of similar proceedings in irrigation districts shall file a petition in the district court for the confirmation of the apportionment of benefits, and the validity of the bond issue or contract, and the proceedings in connection with the holding of the election, and the apportionment of benefits; whereupon the district court shall proceed to set such petition for hearing and to hear the evidence in connection therewith and to decide the same in like manner and with like effect as provided by statute in the case of similar proceedings in irrigation districts. The said petition and decree may be either for the confirmation of all of said proceedings in one (1) decree or there may be separate and successive petitions and decrees for confirmation of any part of said proceedings and if the court finds the apportionment as made by the board of county commissioners to be equitable and just the court shall confirm the same and if the court finds the said apportionment or any part thereof to be inequitable or unjust the court shall itself make an equitable and just apportionment and file a decree confirming the same. An appeal may be taken from such decision of the district court to the Supreme Court either by the board of county commissioners or any of protesting landowners who have appeared in said proceedings in the district court in like manner as in similar cases in irrigation districts. The said decree of the district court may not be collaterally attacked, and if not set aside or modified by the Supreme Court, shall be final and conclusive as to the validity of the bond issue and the apportionment of benefits so confirmed, and the regularity and validity of all proceedings in connection with or leading up to the same.
[(42-2805) 1921, ch. 222, sec. 5, p. 492; I.C.A., sec. 41-2405.]
In making contracts for the construction or purchase of irrigation or drainage works or the right to the use of works constructed or to be constructed, the county commissioners shall proceed in similar manner as provided by law for the making of similar contracts by irrigation districts, but no election shall be required to authorize any such contract: provided, however, that the aggregate of all contracts entered into for the purchase or construction of works on any project under the provisions of this chapter shall provide for the ultimate completion of the project in accordance with the approved plans referred to herein at a total cost not exceeding the total sum of money derived from the sale of bonds issued for such project, and the contractor or contractors (except in cases where the United States government is the contractor) shall give the bond required by section 45-502.
The plans and specifications and all contracts for construction work contracted for by boards of county commissioners under this chapter shall first be approved by the director of the department of water resources, and any construction contract entered into by such boards shall by its terms provide that such construction work shall be completed in accordance with such plans and specifications to the approval of the director of the department of water resources except in the case of contracts with the United States government. It shall be the duty of the director of the department of water resources, upon the completion of the work under any contract entered into under the provisions of this chapter to issue a certificate of such completion to the board or boards of county commissioners.
[(42-2806) 1921, ch. 222, sec. 6, p. 492; I.C.A., sec. 41-2406.]
All lands directly benefitted by any irrigation or drainage project, or any irrigation or drainage works established under this chapter, and all public or corporate roads or railroads so benefitted in whole or in part, shall be assessed in proportion to the benefits for the construction thereof. All lands owned by the state of Idaho benefitted by such project may be assessed for such benefit the same as taxable land, provided a notice of the filing of the petition and of the time and place of hearing and notice of hearing shall have first been served on the state agency responsible for the management of such state owned lands: provided, that instead of paying the said assessments so levied against the state lands, the state may promptly offer said state lands for sale at public sale in the manner provided by law, and as rapidly as permitted by the provisions of the state constitution, until the entire acreage of state land in such project shall have been sold and if the state does not make appropriations for the payment of such assessments against such state lands, then the sale of such state land, when made, shall be made under contract requiring the purchaser as a condition to receiving title to such lands from the state, or to receiving any contract right or interest therein, to pay all assessments duly levied against such lands under the provisions of this chapter, and to pay to the proper county officer at the time of such sale such annual assessments as may have come due prior to the time of such sale, with interest thereon as hereinafter provided, and to continue the payment of such assessments until title passes from the state to such purchaser, which conveyance shall be made from the state to the purchaser subject to the liens herein provided for.
[(42-2807) 1921, ch. 222, sec. 7, p. 492; I.C.A., sec. 41-2407; am. 1994, ch. 180, sec. 86, p. 485; am. 2003, ch. 32, sec. 24, p. 131.]
All counties in which irrigation projects shall be established under the provisions of this chapter by order of the board of county commissioners and all counties containing part or portion of the lands to be irrigated or reclaimed under any such project, are hereby authorized to cooperate with the state of Idaho and with the national government under the provisions of the Carey Act laws of the United States and of the state of Idaho, and all such counties are authorized and empowered to exercise and do all acts granted or authorized to irrigation districts under the provisions of chapter 17 of title 43, and sections 43-1701 to 43-1712 inclusive, of the Idaho Code, and the board of county commissioners of every such county is authorized and empowered to exercise all powers granted under said chapter and sections to the boards of directors of irrigation districts in providing for the irrigation and reclamation of lands segregated under the Carey Act, and the collection and enforcement of the liens provided for such purpose.
[(42-2808) 1921, ch. 222, sec. 8, p. 492; I.C.A., sec. 41-2408.]
For the purpose of performing the acts and exercising the powers granted by section 43-1801 of the Idaho Code and the act of Congress of August 11, 1916, entitled "An Act to Promote Reclamation of Arid Lands," (39 Stat. 506), counties in which irrigation projects have been duly established by order of the board of county commissioners under the provisions of this chapter, shall be considered to be irrigation districts of the state of Idaho and vested with all the powers and authority granted to irrigation districts by said section 43-1801 of the Idaho Code, and by the said act of Congress of August 11, 1916, entitled "An Act to Promote the Reclamation of Arid Lands," and the board of county commissioners of such counties are authorized to act as the directors of such district for such purpose and to exercise all the powers granted to the directors of irrigation districts.
[(42-2809) 1921, ch. 222, sec. 9, p. 492; I.C.A., sec. 41-2409.]
Any county in which any irrigation or drainage project shall have been established under the provisions of this chapter by order of the board of county commissioners, or which contains any part of the irrigable lands of such projects so established, is hereby authorized to cooperate with the United States and the officers of the interior department and reclamation service for the purpose of furnishing irrigation or drainage, or a more complete or ample water supply by means of reservoirs, canals, or other works, to lands in such county, is authorized to exercise all powers which are granted by chapter 18 of title 43, sections 43-1803 to 43-1828 inclusive of the Idaho Code to irrigation districts, and the board of county commissioners of such county are granted all powers and authorized to do all acts granted or authorized under said sections to be done, exercised or performed by the board of directors of an irrigation district.
[(42-2810) 1921, ch. 222, sec. 10, p. 492; I.C.A., sec. 41-2410.]
The board of county commissioners of each and every county wherein any irrigation or drainage projects are proposed to be wholly or partially located and established, or wherein lands are located which are assessed for benefits by reason of the construction thereof, is hereby authorized after the filing of the decree of the district court confirming the election and other proceedings authorizing a bond issue of said county, to issue the bonds of their respective counties, and to be designed as "…. county improvement bonds" in such amounts as may be necessary to fully meet and discharge the expenses authorized by this chapter. All such bonds shall be the direct and primary obligations of the county for the full principal and interest thereof. The faith, credit, and all taxable property within the limits of the county, as constituted at the time of such issue, are, and must continue, pledged to the payment of said bonds. All such bonds shall be in the form provided in section 3524 of the Idaho Compiled Statutes and shall be sold negotiated as provided in section 3525 of the Idaho Compiled Statutes, and the board of county commissioners shall provide for the payment of such bonds and interest thereon in like manner as in the case of other county bonds and as set out and provided in section 3522 of the Idaho Compiled Statutes, but shall reimburse the county by enforcing all liens and collecting all assessments from the lands against which benefits have been assessed or apportioned under the provisions of this chapter. The word "expenses" shall be construed to mean and cover every item of cost of said irrigation or drainage project from the filing of the petition to the completion of work and all fees and expenses to be incurred in pursuance thereof. Such bonds shall be payable at such time or times not to exceed twenty (20) years from their date and shall bear such rate of interest payable annually or semiannually as the board of county commissioners shall by resolution determine. Each bond shall contain a recital that it is issued by authority of and in conformity with the provisions of this chapter and such bond may otherwise be in such form as the board of county commissioners may determine, but not in conflict with the requirements of section 3524 of the Idaho Compiled Statutes. Said board of county commissioners shall have power to sell and negotiate said bonds as hereinbefore provided. The proceeds from the sale of all such bonds shall be placed in a general reclamation fund which is hereby created in the county treasury. The county auditor shall keep a separate account with each irrigation or drainage project so established in such county, which account shall be credited with all moneys arising from the sale of bonds, all moneys received as interest or penalties upon liens, charges, assessments, and all other sources on account of such irrigation or drainage system, and which account shall be debited with every item of expenditure made on account of such irrigation or drainage project. Such board of county commissioners shall provide moneys for the payment of principal and interest of said bonds as they severally mature, which money shall be placed in the general reclamation fund into which fund it may transfer any surplus moneys remaining in the general revenue fund, or other funds of the county, which can be properly used for the purpose of this chapter, into which fund shall be paid all moneys received from the payment of any liens created under the provisions of this chapter, and such board is hereby authorized to pay such bonds issued under the provisions of this chapter, or the interest thereon, out of any available funds in the county treasury when the moneys on hand in the general reclamation fund of the treasury are insufficient to meet the payment of the bonds issued in irrigation or drainage proceedings under this chapter when the same mature. But the fund from which such moneys have been taken or used for the payment of bonds after they mature, shall be replenished with interest from the collections of unpaid assessments for irrigation or drainage works constructed under any proceedings had hereunder, as authorized in this chapter.
[(42-2811) 1921, ch. 222, sec. 11, p. 492; I.C.A., sec. 41-2411; am. 1970, ch. 176, sec. 2, p. 508.]
The board of county commissioners of any county in which any irrigation or drainage project is established under this chapter are authorized to provide by resolution for a sinking fund for the payment of the bonds issued under the provisions of this chapter and for such purpose and in order to provide a fund to meet all payments of the principal and interest on such bonds as the same come due and to cover deficiencies or delays in collections shall provide an assessment each year, ten per cent (10%) in excess of the amount of the principal and interest coming due the following year on the bonds issued by such county under this chapter until such time as a reserve fund shall have been accumulated in the county treasury from such excess assessments to an amount of at least ten per cent (10%) of the bonds issued by such county for such irrigation or drainage project.
[(42-2812) 1921, ch. 222, sec. 12, p. 492; I.C.A., sec. 41-2412.]
At the earliest practicable time after the letting of the contract for the construction or use of any irrigation or drainage works as herein provided, the auditor of each county affected thereby shall make in tabular form a list and statement showing the following facts and in the order named, viz:
The names of the owners of all lands and the names of all public or corporate roads or railroads within their respective counties benefited by the construction of such proposed work as appears from the apportionment of benefits made by the board of county commissioners modified (if at all) by the order of confirmation of the district court.
The description of said lands as the same appears in such apportionment of benefits so affected, together with the total number of acres in each tract according to the assessment rolls or tax lists of such county.
The estimated number of acres benefited in each tract of said land as shown as aforesaid.
The amount that each of said tracts of land and that each of said corporate roads or railroads so benefited will be liable for and must pay into the treasury of each county for the said works.
[(42-2813) 1921, ch. 222, sec. 13, p. 492; I.C.A., sec. 41-2413.]
Such statement shall then be signed by the county auditor in the presence of two (2) attesting witnesses and be duly acknowledged by him, and shall then be duly filed and recorded by the county recorder of such county. The amount which each tract of land and each public or corporate road, or railroad, will be liable for and the interest thereon as hereinafter provided, shall be and remain the first and paramount lien on such land, public or corporate roads or railroads until fully paid, and shall take precedence of all mortgages, charges, encumbrances or other liens whatsoever. Such payments may be made as hereinafter provided. Such findings shall be deemed notice to all parties interested of the existence of such lien. The fees of such county recorder for such recording shall be paid by the county on the allowance of the board of county commissioners and said statement after the same has been recorded shall be returned to the county auditor to be by him placed with the other papers relating to such project and carefully preserved by him.
[(42-2814) 1921, ch. 222, sec. 14, p. 492; I.C.A., sec. 41-2414.]
The amount that each tract of land, public or corporate road or railroad shall be liable for on account of the establishment of any irrigation or drainage project under the provisions of this chapter shall bear interest from the date of the filing of the auditor’s statement in the county recorder’s office at a rate of interest not exceeding six per cent (6%) per annum until paid, such rate of interest to be fixed and determined by the board of county commissioners at the time of establishing such project: provided, that when bonds are issued by the county for the construction or establishment of such project, the same rate of interest shall be charged as said bonds so issued bear: provided, further, that in any case and at any time after the establishment of any project and in the event there is not sufficient money in the sinking fund for the purpose the board of county commissioners may upon such notice as shall be ordered and upon a showing of the necessity to provide funds to meet payments due or maturing on the bonds issued under this chapter, either change or modify any order previously made fixing and determining a rate of interest or fix the rate of interest in the case the same has not been previously fixed or change the existing rate of interest, the same to remain in effect until such time as the amount in the sinking fund is sufficient for such purpose. All interest shall constitute an additional lien on said land or lots until fully paid, which said interest when about to be paid shall be computed by the county auditor. If bonds are sold at a premium, such premium shall become a part of the sinking fund herein provided.
[(42-2815) 1921, ch. 222, sec. 15, p. 492; I.C.A., sec. 41-2415.]
The payment of such liens shall be made to the same county officer to whom other county taxes are required by law to be paid and become due and delinquent on the same day of the year as other county taxes. The date of the maturity of said lien shall be fixed by resolution of the county commissioners at the time of the issue of said bonds, and shall correspond to the maturity of said bonds. The said principal lien shall bear interest at a rate not to exceed six per cent (6%) per annum, payable annually on the same day of the year provided by law for the payment of the other county taxes, such interest to be reckoned from the date of the filing of the lien statement in the office of the county recorder and interest on the whole of the principal of such lien remaining from time to time unpaid shall be paid annually on the same day of each year except as hereinafter in this section otherwise provided. In case bonds shall be issued by the county then the lien shall bear the same rate of interest as such bonds. On or before the first day of October next following such filing of the lien in the office of the county recorder, the county auditor shall for the purpose of enforcing payment of such lien, enter on a project lien record of said county the whole amount of such lien remaining unpaid against each respective tract of land subject thereto, and shall at the same time, or before tax lists or tax rolls are turned over to the county tax collector, compute interest as in this chapter provided on such unpaid amount to the first day of July following and shall enter such interest on the tax list and tax rolls for such year and the instalments of such lien and interest thereon together with such amount as may be required for the sinking fund as herein provided shall be collected in the same manner as real estate taxes for that year on the tract in question are collected, and the county auditor shall in the same manner each year thereafter compute interest on the amount of such lien remaining unpaid and not previously entered on the tax rolls of prior year, or years, together with interest to the first of July and enter the same together with the instalment, if any, together with such amount as may be required for the sinking fund as herein provided then due on the tax lists and tax rolls, said instalment, interest and sinking fund to be collected in like manner as the first payment until the whole amount of any such lien and accumulated interest shall have been so entered on the tax rolls and tax lists of such county, and all of the provisions of law now or hereafter existing in relation to the collection of real estate taxes so far as applicable hereto are hereby adopted for the purpose of enforcing payment of such liens and instalments thereof and of the interest thereon, and each of the same shall be subject to the same penalties for delinquency in payment as provided by law for other county taxes. When payment of the full amount of such liens with accumulated interest shall thus, or at any one time, be made, the auditor upon presentation of a receipt from the treasurer to that effect, shall issue under his hand and official seal a certificate of such payment and the same when recorded in the office of the county recorder shall release and discharge said lien of record. If any item of cost of an irrigation or drainage project established under this chapter from the inception of such project to its completion has been, or shall be omitted from the original tabular statement for assessments made and filed by the auditor with the county recorder, then a supplementary statement or assessment shall be made by said auditor in the same form and manner as the original statement so far as practicable showing such omitted costs, which supplementary statement or assessment shall be filed for record in the office of the county recorder and shall be due and payable and collectible in the same manner, time and form as if a part of the last annual instalment of the original assessment.
[(42-2816) 1921, ch. 222, sec. 16, p. 492; I.C.A., sec. 41-2416.]
In all cases in which a lien has been established against any tract or tracts of land comprising more than one government lot or forty-acre subdivision by reason of benefits assessed thereon in any irrigation or drainage project established under this chapter, and no instalment of such assessment or interest thereon shall be in default, any person or corporation having an interest in said land, or any part thereof, may petition the district court of the county wherein such land is situated to have such lien apportioned between or among specified portions of such tract or tracts. Upon the filing of such petition the court shall by its order fix a time and place at which said petition shall be heard and requiring personal service of a notice of such hearing to be served upon the county auditor, the occupants of such premises and on all parties having an interest in said premises as shown by the records in the office of the county recorder of such county at least ten (10) days before such hearing, or if for any reason personal service cannot be made upon all of said persons, notice shall be given by two (2) weeks publication in a newspaper published in said county in lieu of personal service. At the time and place appointed by the court for hearing upon such petition, or at the time to which such hearing may have been adjourned, the court shall hear any and all evidence bearing upon the matters set out in said petition and as to what will be a proper and equitable apportionment of said lien between or among the portions of such original tract which it is desired shall be encumbered by separate liens, and shall thereafter by its order apportion such lien among such tracts, but in no case shall the aggregate of said separate liens be different from the amount of the unpaid portion of the original lien. A certified copy of the order apportioning said lien shall be recorded in the office of the county recorder of such county and filed in the office of the clerk of the district court, which shall operate as a division and apportionment of such original lien between such various tracts of land originally covered thereby, and shall operate as a release of each of said tracts from said lien, except the amount so apportioned against it and thereafter the amount apportioned to each of such respective tracts shall be entered separately against such tract upon the tax list and tax roll and so reported to the proper county officer for collection and no reduction or abatement of the amount so apportioned shall be thereafter made.
[(42-2817) 1921, ch. 222, sec. 17, p. 492; I.C.A., sec. 41-2417.]
After the construction of any such public drainage or irrigation project within the state of Idaho under this chapter, and until the board of county commissioners shall have made a suitable contract with some existing irrigation or drainage district, or ditch or irrigation company for the operation and maintenance of said project, and in the case of irrigation projects for the distribution of the water supply made available from the reservoirs or other irrigation structure constructed or provided under this chapter to the lands in said county assessed for the benefits of such improvement, or in case no such contract is made with such district or company to act as the agency of the county for the distribution of the water and the maintenance and operation of the works, then until such time as the operating district herein provided for shall have taken over the operation and maintenance of said works in the distribution of water therefrom in the case of irrigation works and shall have provided the necessary funds for such operation, maintenance and distribution, the board of county commissioners of the county in which the lands assessed for the benefits of such irrigation or drainage project are located shall keep such works and all parts thereof in proper repair and shall make proper contracts and take all necessary steps to maintain and operate the same and pay the cost of such maintenance and operation, and in the case of irrigation projects to distribute the water made available by such works and provide for and pay the cost of such maintenance and operation, and in case there are public funds to the credit of the drainage or irrigation project so to be operated or maintained, to make such repairs and pay for such maintenance and operation, such fund may be expended by the board of county commissioners for such purpose without further assessment. In case there are no public funds to the credit of such irrigation or drainage project so to be operated and maintained, then except as hereinafter otherwise provided, the board of county commissioners shall pay for the same out of the general revenue funds of the county, and to raise the necessary money to reimburse that fund it is hereby authorized to apportion and assess the cost thereof upon all lands originally assessed for benefits by reason of the construction of said project, said apportionment and assessment to be in the same proportion as was the original assessment for benefits. Such board of county commissioners shall make a written statement of such assessment and deliver the same to the auditor of the county, who shall put the same upon the next succeeding tax record and tax roll of said county and who shall make and file in the office of the county recorder the lien statement covering the cost and expenses of such operation, maintenance and repair, and such assessment shall be a first and paramount lien upon the lands affected, the same as state and county taxes and shall be collected in like manner as the liens for the construction of the project, except that the same shall not be payable in instalments, but such operation and maintenance expense shall be provided for in each year’s assessments. In case such assessment, or any part thereof is chargeable against lands in another county, then the amount thereof chargeable against such other county shall be the board of county commissioners of the county which has paid the same, be certified to the county auditor of such other county chargeable therewith, and such last-mentioned county auditor shall thereupon draw his warrant therefor in favor of and deliver the same to the county treasurer of the county which has paid the same, and such auditor drawing such warrant shall thereupon apportion and assess and file for the amount thereof upon all lands in said county originally assessed for benefits by reason of the construction of said project in the same proportion as was the original assessment of benefits.
[(42-2818) 1921, ch. 222, sec. 18, p. 492; I.C.A., sec. 41-2418.]
In all cases where the lands assessed for any water supply or any reservoir or reservoir capacity constructed or made available under the provisions of this chapter lie in whole or in part under any existing canal system, or are so located that the same can be irrigated through such canal system or any part or extension or enlargement thereof, the board of county commissioners of the county in which such lands, or any part thereof, are located are authorized to enter into a contract on behalf of such county, with the company, irrigation district, or individual owning or operating any such canal system under which such district, company or individual shall become the agency of the county for the distribution and delivery of such reservoir or other water to the lands of such county lying under or so located that they can be irrigated from such existing canal system, and as such agent of the county to provide for the operation and maintenance and repair of the irrigation works constructed or made available under the provisions of this chapter and authorizing such canal owners or operators to collect from the landowners under said canal system an operation and maintenance charge, toll, fee or assessment sufficient to pay the cost of such operation, maintenance and distribution including the cost of operating and maintaining the reservoir or the proportionate part thereof properly chargeable to such land, and to require the payment of such operation and maintenance charges as a condition to the delivery of such reservoir or other water supply and to withhold delivery of such reservoir or other water until all such operation and maintenance charges for past years have been paid, and when so provided in the contract between such canal owner and the county or when so ordered by the board of county commissioners, shall withhold the delivery of such water supply so provided or made available by the county under the provisions of this chapter, from any lands on which any instalment of the principal, or interest of the said liens provided for in this chapter, or the amount due the sinking fund as herein provided, or any assessment levied by the county for the purpose of paying any such instalment or annual interest charge or sinking fund remains delinquent, delivery to such lands, however, to be resumed upon payment of all assessments then due and payable or delinquent, but no part of the water supply provided or made available by the county under the provisions of this chapter shall be delivered to lands against which benefits have not been assessed.
[(42-2819) 1921, ch. 222, sec. 19, p. 492; I.C.A., sec. 41-2419.]
The lands assessed for benefits of any irrigation or drainage project established under this chapter and not lying under or within the area capable of irrigation from an existing canal system with the owners of which system the board of county commissioners of the county or counties in which such lands are located shall within one year after the establishment of such project by order of the board of county commissioners have made an operation and maintenance contract pursuant to the provisions of the preceding section of this chapter, shall be and become upon the expiration of said year an operating district, and such operating district shall be and is hereby vested with all the powers and authority and charged with all the duties of an irrigation district organized under the laws of the state of Idaho and shall have the power and duty to act as the agency of the county for the operation, repair and maintenance of such project, and in the case of irrigation works also for the distribution and delivery of the water made available thereby, and to enter into contracts with the board or boards of county commissioners for such purposes, and to provide for the cost of such operation, maintenance and repair of such works, and the distribution of the waters thereof by levying and collecting tolls, charges or assessments upon the lands of such operating district in like manner and with like effect as in the case of irrigation districts under the laws of this state and the board of directors of such operating district shall have all the powers and authority of a board of directors of an irrigation district and shall be elected in like manner and follow a like procedure as provided by the laws of this state relating to directors of irrigation districts, except that the first board of directors shall be appointed by the governor who shall designate in his appointments which of such directors is appointed for the one (1) year, which the two (2) year, and which the three (3) year term, said directors to be each a resident respectively of one (1) of the three (3) divisions of the district, which divisions shall also be established by the order of the governor at or prior to the time of said appointments.
[(42-2820) 1921, ch. 222, sec. 20, p. 492; I.C.A., sec. 41-2420.]
The board of county commissioners, by a suitable order duly made and recorded in the office of the county recorder, may, when they deem it advisable, provide for payment of interest on such county bonds for a period of not to exceed five (5) years out of the proceeds of the sale of such bonds and in that event no assessments need be collected for the payment of such interest charges until the expiration of said period of not to exceed five (5) years, and in such event the amount of the estimates, and the liens, instalments to be paid, and bonds to be issued and sold, shall be increased to a sufficient extent to provide for such funding of interest and to provide the funds required for such interest payments as well as for construction purposes and for payment of the amounts due or to become due on contracts entered into in pursuance hereof. But such order for the payment of interest for not to exceed five (5) years out of the proceeds of the sale of bonds shall be conditional upon there being available in the county treasury a sufficient amount of money from the proceeds of such bond sales to complete the construction of the proposed work, in addition to the amounts to be paid out for such interest payments and should the funds available in the county treasury for the sale of such bonds be insufficient to make such interest payments, and also complete the proposed construction and the payments of the county’s obligations on its contract or contracts in connection with such project, then, notwithstanding any such order or orders for payment of interest out of the proceeds of the sale of bonds, the county officers shall proceed to collect by taxation and the enforcement of liens as provided in this chapter, the funds necessary to make interest payments and shall use the funds derived from the sale of bonds for the purpose of completing the project and completing payment of the county’s contract obligations insofar as the proceeds of the sale of bonds may be required for such purpose.
[(42-2821) 1921, ch. 222, sec. 21, p. 492; I.C.A., sec. 41-2421.]
The provisions of this chapter providing for the assessment of state lands shall be considered a separable portion of this chapter, and it is hereby declared to be the intention of the legislature that the remainder of this chapter remain in full force and effect, even if the said provisions in regard to assessment of state lands should be held unconstitutional.
[(42-2822) 1921, ch. 222, sec. 22, p. 492; I.C.A., sec. 41-2422.]
The county commissioners in addition to their compensation otherwise provided by law shall be entitled to compensation for their services required under this chapter at the rate of five dollars ($5.00) per day for each and every day necessarily spent in the performance thereof, and shall be paid out of the funds provided for by this chapter and be a part of the expense as herein provided. The county commissioners shall have the power to employ such assistance and fix the rate of pay therefor in the performance of their duties under this chapter as the nature of the work may require the same to be a part of the expense herein provided for.
[(42-2823) 1921, ch. 222, sec. 23, p. 492; I.C.A., sec. 41-2423.]
Any portion of a county requiring drainage or diking, or both, may be organized into a drainage district, and when so organized such district and the board of commissioners hereinafter provided for shall have and possess the power herein conferred by law upon such district and board of commissioners, and said district shall be known and designated as drainage district No. …. (here insert number) of the county of …. (here insert name of county), of the state of Idaho, and shall have the right to sue and be sued by and in the name of its board of commissioners hereinafter provided for, and shall have perpetual succession and shall adopt and use a seal. The commissioners hereinafter provided for and their successors in office shall, from the time of the organization of such drainage district, have the power and it shall be their duty, to manage and conduct the business and affairs of the district, and make and execute all necessary contracts, employ and appoint such agents, officers and employees as may be required, and prescribe their duties, and perform such other acts as herein provided, or that may hereafter be provided by law.
[(42-2901) 1913, ch. 16, sec. 1, p. 58; reen. C.L. 168:1; C.S., sec. 4493; I.C.A., sec. 41-2501.]
The boards of commissioners of drainage districts are hereby authorized and empowered to file upon and appropriate in the manner provided by law, waters created or made available for irrigation purposes, by the construction of drainage works within such district, whenever the same can be applied to a beneficial use upon lands within the district, without impairing prior existing rights, which waters shall be equitably and ratably distributed in the manner provided by law to lands within the district which may beneficially use the same in the proportion that the assessment for drainage of each tract of said land bears to the whole assessment within the district: provided, that where lands within the district have an adequate water right and the water made available for irrigation by the construction of such works, may be beneficially used upon other lands within the district, the board of commissioners may supply such lands with water, upon their assuming to pay their proportionate share of the drainage assessments, and credit other lands within the district creating such water supply with their ratable proportion, of the actual cost of the delivery thereof.
[(42-2902) 1923, ch. 134, sec. 1, p. 195; I.C.A., sec. 41-2502.]
The board of commissioners of drainage districts are hereby authorized and empowered to assess upon lands within the district, benefited by such filing and appropriation as provided in section 42-2902, a sufficient amount to pay the expenses thereof, which shall be levied and collected in the same manner as funds are now levied and collected for the maintenance of the drainage works and the funds so obtained may be expended for the purposes authorized by this act.
[(42-2903) 1923, ch. 134, sec. 2, p. 195; I.C.A., sec. 41-2503.]
Any village or city already incorporated, or which may hereafter be incorporated, may exercise the functions of a drainage district under the provisions of this chapter, or the whole or any portion of any such village or city may be included with other territory in a common district under the provisions for the establishment thereof as provided for herein.
[(42-2904) 1913, ch. 16, sec. 34, p. 58; compiled and reen. C.L. 168:2; C.S., sec. 4494; I.C.A., sec. 41-2504.]
For the purpose of the formation of such drainage district a petition shall be presented to the clerk of the district court of the county in which a greater portion of the lands of said proposed district are located, which petition shall set forth the object of the organization of said district, shall designate temporary boundaries thereof and shall set forth approximately the number of acres of land therein, and shall contain a description of the proposed system of drainage or diking or both, designating the point or points, if any there may be, which shall be the outlet or outlets for the drainage of said district, the general route over which the main ditch or ditches are to be constructed, together with the proposed spurs or branches, and the general location of the dikes or levees, if any there may be, and set forth the further fact that the establishment of said district and the proposed system of drainage will be conducive to the public health, convenience and welfare, or increase the public revenue, or that the establishment of said district and the said system of drainage and reclamation is a proper and advantageous method of accomplishing the relief sought. Said petition shall be signed by such number as own at least one-third of the acreage in the proposed district, and shall pray that the same be organized under the provisions of this chapter. Community property may be represented by either the husband or the record owner.
[(42-2905) 1913, ch. 16, part of sec. 2, p. 58; reen. C.L. 168:3; am. 1919, ch. 183, sec. 1, p. 558; C.S., sec. 4495; am. 1927, ch. 36, sec. 1, p. 48; I.C.A., sec. 41-2505.]
Said petitioners shall, at the time of the filing of the petition, file a bond with the clerk of the district court of the county in which said proposed district is located, running to the state of Idaho, in the penal sum of $500.00, with two (2) or more sureties, to be approved by the judge of the district court, conditioned that they will pay all costs in case said district for any reason shall not be established.
In case said district be not established, then all costs and expenses shall be collectible on the bond hereinbefore provided for, and any person having a charge against said district shall have a right of action thereon: provided, that when said petition is filed with the clerk of said court no petitioner shall be allowed to withdraw his name or land therefrom without tendering into court his pro rata share of all costs and expenses incurred by petitioners to the date of said withdrawals.
[(42-2906) 1913, ch. 16, part of sec. 2, p. 58; reen. C.L. 168:4; C.S., sec. 4496; am. 1927, ch. 225, sec. 1, p. 329; I.C.A., sec. 41-2506.]
After the filing of said petition the judge of the court shall fix a time for the hearing of said petition by order made by him, which order shall provide that said petition be published for at least three (3) successive weeks in some weekly newspaper or newspapers, printed and published in said county or counties in which the lands are situated, and in case no such paper is published in such county, then in some paper of general circulation therein; together with a notice of the time and place at which said judge will consider said petition.
[(42-2907) 1913, ch. 16, part of sec. 3, p. 58; reen. C.L. 168:5; am. 1919, ch. 183, sec. 2, p. 559; C.S., sec. 4497; I.C.A., sec. 41-2507.]
Upon the day fixed for the hearing of said petition, any persons or corporation interested therein, may appear before said court and make objections to the organization and incorporation of said district, but such objections shall be limited to determining whether or not the organization of such drainage district is a proper and advantageous method of accomplishing the reclamation and protection of the swamped, bogged or water-logged lands, or lands subject to overflow therein, and whether or not there is a reasonable probability that the objects sought by the formation of the district may be accomplished, and whether or not said proposed drainage system will be conducive either to the public health, welfare or convenience or increase the public revenue; and at the hearing the court shall hear and consider such evidence only as may be presented for or against the petition or objections thereto. Thereupon the court shall make its findings upon the facts alleged in the petition and objections and any other facts necessary and proper for the determination of the propriety of the organization of such district, and if said district be organized, the judge of said court shall cause an order to be entered and recorded in the judgment record of each of the counties in which the lands within said district are situated, setting forth the facts found by the said judge upon the hearing of said petition, and said order shall define the temporary boundaries of said district and describe the lands included therein by township, range and section only, and shall have the effect of a lis pendens.
Any district may be established even if it is shown that the outlet for the drainage system is without the county or counties in which said district is located, or without the boundaries of the state of Idaho, or is in any other state or territory, or in a foreign country; the work for the drainage of said district may be contracted for and performed either entirely or partially within the limits of any other state, territory or foreign country.
[(42-2908) 1913, ch. 16, part of sec. 3, p. 58; reen. C.L. 168:6; am. 1919, ch. 183, sec. 3, p. 559; C.S., sec. 4498; I.C.A., sec. 41-2508.]
Upon the entry of the findings of the final hearing of said petition, as set forth in the last preceding section, said judge of the district court of the county in which the proposed drainage district is located, if he finds said proposed drainage system to be conducive either to the public health, welfare or convenience, or will increase the public revenue, or be of special benefit to the majority in acreage of the lands included in said boundaries, shall declare said district duly organized, and to be known as drainage district No. …. (here insert number) of the county of …. (here insert name of county), in the state of Idaho. The clerk of said district court shall cause a copy of the order declaring said district to be organized, duly certified, to be filed in the office of the secretary of state, and from and after the date of said filing, said organization shall be deemed complete.
[(42-2909) 1913, ch. 16, parts of sec. 4, p. 58; reen. C.L. 168:7; C.S., sec. 4499; I.C.A., sec. 41-2509.]
The judge of the district court within ten (10) days thereafter shall appoint three (3) drainage commissioners. The commissioners shall be appointed from among those living in the county where said proposed district is located.
The board of drainage commissioners appointed as aforesaid shall be entitled to enter upon the duties of their office upon qualifying as county officers are required to qualify, and upon each drainage commissioner giving a bond to the state of Idaho, for the benefit of said drainage district, for the faithful performance of his duties as such drainage commissioner, in the penal sum of $5000, with one or more sureties to be approved by the judge of the district court. Provided that the judge of the district court, upon application and proper showing by the board of drainage commissioners, may enter an order reducing the penalty of the bond to such sum as may appear to him to be reasonable and adequate under the showing made. The drainage commissioners shall take the oath of office and file their bonds within fifteen (15) days after they are appointed; and they shall hold office until their successors are duly appointed and qualified. Each drainage commissioner thereafter who may be appointed shall enter into a like bond and of like effect upon entering upon his duties, which bond shall be approved by the judge of the district court of the county in which said drainage district is located. The bonds of the drainage commissioners shall be filed with the clerk of the district court and kept in his custody. Immediately after their appointment and their bonds have been filed and approved, the drainage commissioners shall organize themselves into a board, and they shall by lot determine the terms of their office, which shall be one (1), two (2) or three (3) years respectively. Annually thereafter the judge of the district court of the county in which said district is located shall appoint one (1) drainage commissioner whose term of office shall be for three (3) years.
[(42-2910) 1913, ch. 16, parts of secs. 4 and 5, p. 58; reen. C.L. 168:8; C.S., sec. 4500; I.C.A., sec. 41-2510; am. 1933, ch. 21, sec. 1, p. 27.]
The board of commissioners of such district shall elect one of their number chairman and one (1) secretary, and shall keep minutes of all their proceedings. The drainage commissioners shall hold their meetings for the transaction of business at any place in the county or counties in which the district is located.
[(42-2911) 1913, ch. 16, parts of secs. 6, 7, p. 58; reen. C.L. 168:9; C.S., sec. 4501; I.C.A., sec. 41-2511.]
In case a vacancy or vacancies occur in said board by death, failure to appoint, failure to qualify, or resignation of one or more of the members thereof, such vacancy or vacancies shall be filled at once by appointment by the judge of the district court of the county in which said district is located, and said appointee shall serve for the unexpired term, or until his successor is appointed and his bond approved.
[(42-2912) 1913, ch. 16, part of sec. 8, p. 58; reen. C.L. 168:10; C.S., sec. 4502; I.C.A., sec. 41-2512.]
The drainage commissioners shall receive for their services such sum as the board of drainage district commissioners fix by resolution for each day they shall actually be engaged in the business of their office, and actual and necessary expenses. In addition, the commissioners shall each receive a mileage allowance computed at the rate established by the state board of examiners for employees of the state for each mile driven and such allowance shall be the full amount allowed for travel expense.
[(42-2913) 1913, ch. 16, part of sec. 7, p. 58; am. 1915, ch. 42, part of sec. 1, p. 124; reen. C.L. 168:11; C.S., sec. 4503; I.C.A., sec. 41-2513; am. 1957, ch. 78, sec. 1, p. 127; am. 1967, ch. 22, sec. 1, p. 39; am. 1974, ch. 160, sec. 1, p. 1394; am. 1986, ch. 62, sec. 1, p. 179; am. 1992, ch. 52, sec. 1, p. 156; am. 2018, ch. 92, sec. 1, p. 197.]
As soon as may be after their appointment, or within such time as the court may direct, the commissioners shall examine the lands described in the petition and proposed to be drained and protected, and the lands over and upon which the work is proposed to be constructed and shall determine and report:
Whether the starting point, route and terminus of the proposed work and the proposed location thereof, is or are in all respects proper and feasible, and if not, what is or are so.
The estimated cost of the proposed work, including all incidental expenses and the cost of proceedings therefor.
The probable cost of keeping the same in repair after the work is completed.
What lands will be injured thereby and the aggregate amount of such injuries; and they shall award to each tract or lot, by whomsoever held, the amount of damage so determined by them.
What lands will be benefited by the construction of the proposed work, whether the benefits will equal or exceed the aggregate cost of constructing such work, including all incidental expenses, costs of proceedings and damages; and they shall apportion and assess the estimated cost of the same on the lands so benefited by setting opposite the correct description of each tract, lot or easement, the portion of such cost assessed as benefits thereon. And if any particular part of the work so proposed to be done shall be assessed upon any particular tracts or lots of land or upon any municipality or corporation they shall so specify; and if any municipality or corporation should in their judgment bear a part of the expense or as such will derive a public or special benefit from the whole or any part of such proposed work, they shall so report and assess the amount of such benefits.
Whether the proposed district, as set out in the petition filed, will embrace all the lands that may be damaged or benefited by the proposed work, and if not, what additional lands will be benefited or damaged and the amount of the benefits or damages in the same manner as though such lands were included in such original petition.
If the commissioners determine the lands benefited or the amount of said benefits has either changed or is in error, the commissioners may petition the court to reapportion the benefits to part or all of the lands within the district. Upon receipt of a petition, the court shall make and enter an order fixing a time and place when and where all persons interested may appear and object to the reapportionment of benefits, and the clerk of the court shall cause publication of the order in three (3) consecutive weekly issues in a newspaper of general circulation within each county in which any of the lands for which reapportionment of benefits is sought are located. Any landowner affected by the reapportionment of benefits may object against the whole or any part of the reapportionment pursuant to the provisions of section 42-2920, Idaho Code. Upon a hearing pursuant to the provisions of section 42-2921, Idaho Code, the court shall issue an order setting forth the reapportionment of benefits, if any.
[(42-2914) 1913, ch. 16, sec. 9, p. 58; reen. C.L. 168:12; C.S., sec. 4504; I.C.A., sec. 41-2514; am. 2012, ch. 106, sec. 1, p. 282.]
In determining the amount which each tract of land will be benefited by such proposed drainage system the commissioners shall consider the damage done to low land from seepage and saturation by irrigation water from high land, and the necessity for the carrying off of waste water, and such high lands shall be considered as being benefited to the extent and in the amount that such lands are responsible for damage to low lands from seepage and saturation by irrigation water.
[(42-2915) 1913, ch. 16, sec. 9a, as added by 1915, ch. 42, sec. 2, p. 124; reen. C.L. 168:13; C.S., sec. 4506; I.C.A., sec. 41-2515.]
For the purpose of compiling the data to be presented to the court as set forth in the preceding sections, the board of commissioners of said drainage district may employ one or more competent engineers, surveyors and other helpers, and such legal assistance as may be necessary, with full power to bind said district for the compensation of such assistants or employees employed: provided, however, that all maps, profiles, surveys, plans, specifications or other data heretofore made or property acquired under laws heretofore enacted on the subject may be purchased and used under the provisions of this chapter.
[(42-2916) 1913, ch. 16, part of sec. 10, p. 58; compiled and reen. C.L. 168:14; C.S., sec. 4507; I.C.A., sec. 41-2516.]
The commissioners shall not be confined to the point of commencement, route or terminus of any drain or ditch, or the number, extent or size of the same, or the location, plan or extent of any levee, ditch or other work as proposed by the petitioners, but shall locate, lay out and plan the same in such manner as to them shall seem best designed to promote the public health or welfare and to drain or protect the lands of the parties interested with the least damage and the greatest benefit to all lands to be affected thereby; any plan proposed by the commissioners may, on the application of any person interested, on the hearing hereinafter provided for, or on the application of the commissioners, be altered by the court, by written order, in such manner as shall appear to the court to be just.
[(42-2917) 1913, ch. 16, part of sec. 12, p. 58; reen. C.L. 168:15; C.S., sec. 4508; I.C.A., sec. 41-2517.]
If the commissioners find that the proposed district, as described in the petition filed, will not embrace all of the lands that will be benefited by the proposed work, or that it will include lands that will not be benefited and not necessary to be included in said district for any purpose, they may extend or contract the boundaries of the proposed district so as to include or exclude all such lands, as the case may be; and the boundaries adopted and reported by them may, upon the hearing of their report as hereinafter provided, upon their application or that of any person interested, be altered by the court in such manner as shall appear to be just: provided, the alteration of boundaries as aforesaid shall not have the effect of so far enlarging or contracting the proposed district as to render such petition void or dismissable.
[(42-2918) 1913, ch. 16, part of sec. 12, p. 58; reen. C.L. 168:16; C.S., sec. 4509; I.C.A., sec. 41-2518.]
If the commissioners shall find after the investigation referred to that the cost, expenses and damages are more than equal to the increased value which will accrue to the lands within the district, they shall so report and the proceedings shall be dismissed. But if the commissioners shall report that the whole cost of the work including preliminary surveys and expenses, legal assistance and court costs will be less than the increase in value to accrue therefrom, they shall so report to the court, and the court shall then make and enter an order fixing a time and place when and where all persons interested may appear and contest the confirmation thereof, and the clerk of the court shall cause notices of the time and place of said hearing to be given to all parties interested by the publication of a notice thereof for at least three successive weeks prior to the date set for such hearing in one or more newspapers published in said county or counties which notice shall contain a description of all land affected and the amount of the assessments and damages awarded in said report and by personally serving or sending by registered mail a copy of said notice to each landowner at his post-office address in so far as the same can be ascertained, and if not known, then to their last known post-office address, at least twenty days before the date appointed for said hearing, but failure to receive such notice shall not invalidate any assessment.
[(42-2919) 1913, ch. 16, part of sec. 10, p. 58; reen. C.L. 168:17; am. 1919, ch. 183, sec. 5, p. 558; C.S., sec. 4510; I.C.A., sec. 41-2519.]
Any of the landowners or any person or corporation affected by the work proposed may appear on the day set for hearing said report and remonstrate against the whole or any part of the proposed work. Such remonstrance shall be verified by affidavit, and shall set forth the objections of the affiant, whether they go to the jurisdiction of the commissioners or the court or not, or whether they rest on any other fact, as that some lands are assessed too high or too low or improperly, or that lands are assessed which ought not to be, or that lands should be assessed which are not assessed, or that the plans for said proposed work should be changed, or that the boundaries of said district should be altered so as to include or exclude certain lands, or by any persons or corporations to whom damages are allowed that they are inadequate, or by any person or municipality that the public health or welfare will not be promoted by the proposed work.
[(42-2920) 1913, ch. 16, part of sec. 11, p. 58; reen. C.L. 168:18; C.S., sec. 4511; I.C.A., sec. 41-2520.]
The remonstrants shall set forth objections to the confirmation of the report of the commissioners by stating separately, first, legal objections, second, issues of fact to be tried by the court, third, issues of fact to be tried by the jury. The district court of said county shall fix a time for the hearing of the objections giving such proceedings preference over other civil actions pending, and on demand of any person or corporation assessed for the cost of construction or awarded damages, may impanel a jury and take its verdict upon the trial of such issue, whether the amount of damages awarded by the commissioners is adequate, or whether the assessment of any remonstrant demanding the review is too high, and the court or jury may assess the same. All other issues arising on remonstrance shall be tried by the court, and if the court finds that the report requires modification the same may be referred to the commissioners who may be required to modify it in any respect. The report of the commissioners shall be prima facie evidence of the allegations therein set forth and the remonstrants shall be considered as plaintiffs and have the burden of establishing their objections thereto. In any case between the commissioners and any remonstrant the court may award and apportion the costs; costs awarded against the commissioners shall be paid out of the funds realized for the assessments made.
[(42-2921) 1913, ch. 16, part of sec. 11, p. 58; reen. C.L. 168:19; am. 1919, ch. 183, sec. 6, p. 558; C.S., sec. 4512; I.C.A., sec. 41-2521.]
If the findings be awarded against the validity of the proceedings the same may be dismissed. If the findings be in favor of the validity of the proceedings, the court, after the report shall have been modified to conform to the findings, or if there be no remonstrances, shall confirm the same, and the order of confirmation shall be final and conclusive, the proposed work shall be established and authorized and the proposed assessments approved subject to the right of appeal to the supreme court.
[(42-2922) 1913, ch. 16, part of sec. 11, p. 58; reen. C.L. 168:20; C.S., sec. 4513; I.C.A., sec. 41-2522.]
The court may also permit the commissioners to present and file a supplemental report as to any matter which, pursuant to the provisions of section 42-2914 might have been included in the original report presented by them, and after reasonable notice given to parties adversely interested in such manner as the court may direct, the court may, upon the hearing in the matter, make such order as the same may require.
[(42-2923) 1913, ch. 16, part of sec. 11, p. 58; compiled and reen. C.L. 168:21; C.S., sec. 4514; I.C.A., sec. 41-2523.]
Every person or corporation feeling himself or itself aggrieved by the judgment for damages or the assessment for benefits may appeal to the supreme court of this state in the manner provided by law for appeals in civil actions to the Supreme Court within thirty (30) days after the entry of the judgment confirming the report of the commissioners; and such appeal shall bring before the supreme court the propriety and justness of the amount of damages or assessment of benefits in respect to the parties to the appeal. Upon such appeal no bond shall be required and no stay shall be allowed.
[(42-2924) 1913, ch. 16, sec. 13, p. 58; reen. C.L. 168:22; C.S., sec. 4515; I.C.A., sec. 41-2524.]
In case the report of the commissioners hereinbefore provided for shall not be confirmed upon the hearing of the objections and remonstrances thereto, the court or judge shall dismiss such proceedings and in such case judgment shall be rendered for the costs and expenses of said proceedings against said district, and no further proceedings shall be had or done thereon; and in that event the commissioners within thirty (30) days after such dismissal shall file with the clerk of the court a statement of all costs and expenses incurred by them which statement shall be itemized and verified by the oath of one (1) of the commissioners: provided, that in case of such dismissal the said commissioners shall have the right of appeal to the Supreme Court and such appeal shall be taken in the same manner as provided for in section 42-2924.
[(42-2925) 1913, ch. 16, sec. 14, p. 58; reen. C.L. 168:23; C.S., sec. 4516; I.C.A., sec. 41-2525.]
Any person or corporation claiming to be entitled to any money ordered paid by the court, as provided in this chapter, may apply to the court therefor and upon furnishing evidence satisfactory to the court that he be entitled to the same, the court shall make an order directing the payment to such claimant of the portion of such money as he or it may be found entitled to; but, if upon application, the court or judge thereof shall decide that the title to the land, real estate or premises specified in the application of such claimants is in such condition as to require that an action be commenced to determine the title of claimants thereto, it shall refuse such order until such action is commenced and the conflicting claims to such land, real estate or premises be determined according to law.
[(42-2926) 1913, ch. 16, sec. 15, p. 58; reen. C.L. 168:24; C.S., sec. 4517; I.C.A., sec. 41-2526.]
All state, county, school district or other lands belonging to other public corporations requiring drainage shall be subject to the provisions of this chapter, and such corporations, by and through the proper authorities, shall be made parties in all proceedings herein affecting said lands, and shall have the same rights as private persons, and their lands shall be subject to the rights of eminent domain the same as the lands of private persons or corporations.
[(42-2927) 1913, ch. 16, sec. 35, p. 58; reen. C.L. 168:25; C.S., sec. 4518; I.C.A., sec. 41-2527.]
In case lands belonging to the state, county, school district or other public corporation are benefited by any improvement instituted under the provisions of this chapter, all benefits shall be assessed against said lands, and the same shall be paid by the proper authorities of such public corporations at the same time and in the same manner as assessments are called and paid in cases of private persons, out of any general fund of such corporations.
[(42-2928) 1913, ch. 16, sec. 36, p. 58; reen. C.L. 168:26; C.S., sec. 4519; I.C.A., sec. 41-2528.]
In case there are any lands included in any drainage district which cannot be assessed because of the title being in the United States government, or because of it being land not yet proved up on, or being Indian land, or for any other reason, then in that event, the drainage commissioners are, at any future date when said lands come under the jurisdiction of the drainage district, authorized to assess said lands for all benefits bestowed, the same as though said lands were originally assessable, and notice of the intention to so assess together with the amounts of assessment filed by the drainage commissioners with the recorder of the county in which said district is located, shall be notice to all subsequent purchasers and encumbrancers.
[(42-2929) 1913, ch. 16, part of sec. 41, p. 58; reen. C.L. 168:27; C.S., sec. 4520; I.C.A., sec. 41-2529.]
In the event that the amount levied shall be insufficient to complete the contemplated improvement, then the board shall levy an additional assessment sufficient to complete the same, including the cost of collection, and all legal and other proceedings in connection therewith. Such additional levy shall be made against the same property, and in the same proportion against each, as was the original levy, and after approval thereof by the judge, before whom said proceedings are pending, shall be spread on the books of the auditor and tax collector in the same manner as is required in the case of the original levy. A brief general notice of the filing of the application for confirmation of such additional levy shall be published in a newspaper of general circulation in each of the counties in which such district is situate, at least once each week, for three (3) consecutive weeks prior to the date fixed for confirmation.
[(42-2930) 1919, ch. 183, sec. 7, p. 558; C.S., sec. 4521; I.C.A., sec. 41-2530.]
In any case where the work set out in the plan for drainage as provided in this chapter, or the work or improvements and the system of diking and reclamation constructed or in process of construction, are deemed or found by the board of commissioners of any drainage district at any time before or after the completion thereof to be insufficient or inadequate for any reason or by reason of any occurrence or circumstance, said board may order and cause to be done and constructed (in the manner provided and permitted by this chapter and subject to the judicial proceedings required by this chapter) additional work and improvements for the purpose of rendering sufficient and adequate the work and improvements and system of reclamation and drainage already constructed or for the purpose of reconstructing and for the preservation of the same; and also in any case where in the judgment of said board, new, additional or separate works and improvements (in the nature of original construction or reconstruction work and improvements) shall be or become necessary for the sufficient, safe and adequate drainage and reclamation of said district or for the safety and preservation of the work, improvements and system already constructed, said board may order and cause to be done and constructed such new, additional and separate works and improvements; and a new estimate of benefits may be made in each and all of said cases based on the additional or separate additional work or construction or reconstruction work proposed; and additional assessments for each or all of such additional or separate works and improvements may be made on the lands benefits in conformity with the procedure provided in this chapter as in the case of original construction; and the lands in said district, or any part of such lands, shall be assessed in proportion to the benefits estimated as accruing to such lands because of such additional or separate work and improvements or because of such separate or additional construction and reconstruction work and improvements. The provisions of chapter 29 shall apply to all proceedings had or matters or things done pursuant to the authorization of this section, the necessary substitutions and changes being made because of any variant circumstances.
[(42-2931) 1913, ch. 16, part of sec. 41, p. 58; compiled and reen. C.L. 168:28; C.S., sec. 4522; I.C.A., sec. 41-2531; am. 1935, ch. 49, sec. 1, p. 89.]
Fees for service of all process necessary to be served under the provisions of this chapter shall be the same as for like services in other civil cases, or as is or may be provided by law.
[(42-2932) 1913, ch. 16, sec. 37, p. 58; reen. C.L. 168:29; C.S., sec. 4523; I.C.A., sec. 41-2532.]
The district court may compel the performance of the duties imposed by this chapter, and may, in its discretion, on proper application therefor, issue its mandatory injunction for such purpose.
[(42-2933) 1913, ch. 16, sec. 38, p. 58; reen. C.L. 168:30; C.S., sec. 4524; I.C.A., sec. 41-2533.]
The collection of any assessments of benefits made by the commissioners and confirmed by the court shall not be restrained or obstructed by reason of any omission, imperfection or defect in the organization of any district or in any proceedings occurring prior to the order confirming the assessments of benefits, but such order shall be conclusive as to the regularity of all proceedings relating to the assessments of benefits unless appealed from within thirty (30) days after the entry of such order.
[(42-2934) 1913, ch. 16, part of sec. 40, p. 58; reen. C.L. 168:31; C.S., sec. 4525; I.C.A., sec. 41-2534.]
Upon the entering of the order confirming the apportionment of costs and awarding of damages as hereinbefore provided for, the clerk of said court shall immediately prepare a transcript which shall contain a list of all lands which are so assessed and awarded damages in said report and shall certify the same to the recorder of the county in which said lands are situated and said statement so certified shall specify the amount of the assessment upon each tract, parcel or governmental subdivision, and shall describe all rights of way or easements required by the district and the amount of damages awarded to the owners thereof; and the said county recorder shall thereupon enter such order of record and the same shall be notice of a lien of said assessment of all persons, and shall establish the right of way and easement of the district in and to the lands so described and said district shall be thereafter entitled to enter upon and occupy said lands upon the payment to the owner of the amount of damage so awarded.
[(42-2935) 1913, ch. 16, part of sec. 16, p. 58; reen. C.L. 168:32; am. 1919, ch. 183, sec. 8, p. 558; C.S., sec. 4526; I.C.A., sec. 41-2535.]
A similar transcript duly certified by the clerk which shall contain a list of the names of all persons and corporations benefited by said improvement and the amount of the assessment upon each lot, parcel or governmental subdivision shall be by said clerk filed with the auditor of the county, who shall immediately enter the same upon the tax rolls of his office, as provided by law for the entry of other taxes, against the land of each of the said persons named in the list, together with the amounts thereof; and the same shall be subject to the same interest and penalties in case of delinquency as in case of general taxes and shall be collected in the same manner as other taxes and subject to the same right of redemption, and the lands sold for the collection of said taxes shall be subject to the same right of redemption, as the sale of lands for general taxes; provided, that said assessment shall not become due and payable except at such time or times and in such amounts as may be designated by the board of commissioners of said drainage district, which designation shall be made to the county auditor by said board of commissioners of said drainage district, by serving written notice upon the county auditor designating the time and the amount of the assessment, said assessment to be in proportion to the benefits to become due and payable, which amount shall fall due at the time of the falling due of general taxes, and the amount so designated shall be added by the auditor to the general taxes of said person, persons or corporation, according to said notice, upon the assessment rolls in his said office, and collected therewith: provided further, that no one call for assessment for the payment or retirement of any bonds or warrants by said commissioners shall be in amount to exceed twenty percent (20%) of the actual amount necessary to pay the cost of proceedings, and the establishment of said district and drainage system and the cost of construction of said work. In all calls for assessments made under the provisions hereof for the payment or retirement of any bonds or warrants issued subsequent to February 25, 1935, the commissioners shall itemize the various items for which a call is made, specifying the percentage called against the assessment roll for bond interest, bond redemption, warrant interest, warrant redemption, operation and maintenance and any other purpose for which a call is made. The board by resolution shall, prior to any call for the payment or retirement of any bonds or warrants issued subsequent to February 25, 1935, determine separately the interest requirement for bonds and warrants outstanding and shall not make a call or levy for interest payment in excess of the actual amount required stated separately. Calls made for the payment of such prior bonds and warrants issued prior to September 25, 1935, as to itemization thereof, as to the specification of the percentage called against the assessment roll for the foregoing purposes and as to the separate determination of interest requirements for the payment of outstanding bonds and warrants and as to the call or levy in amount for interest or principal payments or for the payment of funding or refunding bonds issued heretofore or hereafter to fund or to refund or to pay any of said prior warrants or bonds, shall be as provided by the statutes of Idaho in effect prior to February 25, 1935.
[(42-2936) 1913, ch. 16, part of sec. 16, p. 58; reen. C.L. 168:33; C.S., sec. 4527; I.C.A., sec. 41-2536; am. 1935, ch. 55, sec. 1, p. 103; am. 1939, ch. 229, sec. 1, p. 512; am. 2018, ch. 92, sec. 2, p. 197.]
In event of the dismissal of said proceedings, as hereinbefore provided, said drainage commissioners shall levy a tax upon all the real estate within said district, taking as a basis the last equalized assessment of said real estate for state and county purposes sufficient to pay said judgment and the cost of levying said tax, and shall cause said tax roll to be filed in the office of the clerk of the district court in which such judgment was rendered. If said tax is not paid within one year after the filing of said tax roll, the court shall, upon the application of any party interested, direct said real estate to be sold in payment of said tax, said sale to be made in the same manner and by the same officer as is or may be provided by law for the sale of real estate for taxes for general purposes; and the same right of redemption shall exist as in the sale of real estate for the payment of taxes for general purposes.
[(42-2937) 1913, ch. 16, sec. 17, p. 58; reen. C.L. 168:34; C.S., sec. 4528; I.C.A., sec. 41-2537.]
Said board of drainage commissioners hereinbefore provided for shall have the exclusive charge of the construction and maintenance of all drainage systems which heretofore have been or may be hereafter organized under the provisions of this chapter, and shall be the executive officers thereof, with full power to bind such district by their acts in the performance of their duties as provided by law.
[(42-2938) 1913, ch. 16, part of sec. 8, p. 58; reen. C.L. 168:35; C.S., sec. 4529; I.C.A., sec. 41-2538.]
All drainage districts organized under the provisions of this chapter shall have the right of eminent domain, with power by and through their boards of commissioners to cause to be condemned and appropriated private property for the use of said corporation in the construction and maintenance of a system of drainage, and to make just compensations therefor, to employ engineers, and such other assistants as may be necessary; to survey, plan, locate and estimate the cost of the works necessary for the reclamation of the lands of the district; to acquire and to hold by purchase, condemnation or other legal means, the right of way and the right to take material for the construction of all works necessary for the accomplishment of that object; to build and maintain drains, canals, sluices, bulkheads, water gates, levees and embankments; to establish and maintain pumping plants and to construct and maintain and keep in repair all works requisite and necessary to the end that the lands in the district may be reclaimed.
For the purpose of the drainage of any such district, the whole or any portion of any natural water course, or river, which drains such district, may be diked, improved, enlarged, widened, deepened or straightened, or any natural obstruction may be removed therefrom.
Said board of drainage commissioners shall have power to provide by contract for the performance and payment of all or any portion of the work requisite or necessary for the drainage of the lands included within the limits of such district, or to enter into any contract whereby all or any portion of the cost of such work shall be paid, assumed or undertaken by such district, and to do all things requisite or necessary for the drainage of said lands.
Work for the drainage of said lands may be performed either entirely or partly within the limits of such district, or of the county in which such district is located, or entirely or partly within or without the boundaries of any other county, state, territory or foreign country: provided, that the property of private corporations may be subjected to the same rights of eminent domain as that of private individuals: provided further, that the said board of commissioners shall have power to acquire by purchase all the real property necessary to make the improvements herein provided for.
[(42-2939) 1913, ch. 16, sec. 33, p. 58; reen. C.L. 168:36; C.S., sec. 4530; I.C.A., sec. 41-2539.]
After the organization of any drainage district, the commissioners of such drainage district shall proceed as soon as they may deem expedient in the construction of said improvements; and in carrying on said construction or any extensions thereof they shall have the power to employ such assistance as they may deem necessary and purchase all materials that may be necessary in the construction and carrying on of the work of said improvements, and shall have power to let the whole or any portion of said work to any responsible contractor; and shall in such case enter into all agreements with such contractor that may be necessary in the premises.
[(42-2940) 1913, ch. 16, part of sec. 18, p. 58; reen. C.L. 168:37; C.S., sec. 4531; I.C.A., sec. 41-2540.]
In case the whole or any portion of said improvements is let to any contractor, said commissioners shall require the said contractor to give bond equal to fifty per cent (50%) of the amount of the contract price of the whole, or of the portion of said works covered by said contract, with two (2) or more sureties to be approved by the board of commissioners of said drainage district, and running to said district as obligee therein, conditioned for the faithful and accurate performance of said contract by said contractor, his executors, administrators or assigns, according to the terms and conditions of said agreement and conditioned that said contractor, his executors, administrators or assigns, performing the whole or any portion of said work under contract of said original contractor shall pay or cause to be paid all just claims for all persons performing labor or rendering services in the construction of said work under contract of said original contractor shall pay or cause to be paid all just claims of all persons performing labor or rendering services in the construction of said work, or furnishing materials, merchandise or provisions of any kind or character used by said contractor or subcontractor, or any employee thereof in the construction of said improvements: provided further, that no sureties on said bonds shall be liable thereon for labor, materials or provisions unless the persons or corporations performing said labor and furnishing said materials, goods, wares, merchandise, and provisions, shall within ninety days after the completion of said improvements, file their claim, duly verified, that the amount is just and due and remains unpaid, with the board of commissioners of said drainage district: and, provided further, that said commissioners before advertising for bids for any work or improvement may by resolution provide that said original contractor shall pay or cause to be paid monthly all just claims for all persons performing labor or rendering services in the construction of said work, or furnishing materials, merchandise or provisions of any kind or character used by said contractor or subcontractor or any employee thereof in the construction of said improvements; and before any second or subsequent estimate is paid to the said contractor said payments as aforesaid shall be evidenced by signed vouchers or waivers, filed with the commissioners, and such other evidence by affidavit, or otherwise, as the commissioners may require, and in which event the bond required for the faithful and accurate performance of the contract shall be twenty-five per cent (25%) of the contract price, and in advertising for proposals for bids the said proposals shall set forth that the contract will be let in accordance with the terms of said resolution as to the amount of the bond and the requirement for the payment as aforesaid of all bills for labor, materials, goods, wares, merchandise and provisions, but failure to make monthly settlement of all accounts as herein provided shall not invalidate the bond so furnished by said contractor.
[(42-2941) 1913, ch. 16, part of sec. 18, p. 58; reen. C.L. 168:38; am. 1919, ch. 183, sec. 9, p. 558; C.S., sec. 4532; I.C.A., sec. 41-2541.]
The work on said improvement shall begin at a point or at points to be determined by said commissioners, and said work shall be completed with all expedition possible, and said board of commissioners of such drainage district, or any contractor thereunder, shall have no power whatever to change such route or system of improvements or the manner of doing the work therein so as to make any radical changes in said improvements, without the written consent of all of the landowners to be benefited thereby, and of the landowners who may be damaged thereby.
[(42-2942) 1913, ch. 16, part of sec. 19, p. 58; reen. C.L. 168:39; C.S., sec. 4533; I.C.A., sec. 41-2542.]
In case any substantial changes in said system of improvement, or the manner and construction thereof, shall be deemed necessary by said board of commissioners at any time during the progress thereof, and the written consent to such changes cannot be procured from said landowners, then said commissioners for and on behalf of said district, shall file a petition in the district court of the county within which said district is located, setting forth therein the changes which they deem necessary to be made in the plans or manner of the construction of said improvement, and praying therein to be permitted to make such changes.
Upon the filing of said petition the court shall cause a summons to be served, setting forth the prayer of said petition under the seal of the said court, which summons shall be served in the same manner as the service of summons in the case of the original petition, upon all the landowners or other persons having any lien or interest therein appearing of record in said district.
Any or all of said parties so served may appear in said cause and submit their objections thereto and after the time for the appearance of all said parties has expired, the court shall proceed to hear said petition at once, and if it appears during the course of said proceedings that the property rights of any of said landowners will be affected by such proposed change in said improvements, then the court, after having passed upon all preliminary questions as in the original proceedings, may call a jury to be impaneled in the manner provided by the Code of Civil Procedure, and upon the final hearing of said case the jury shall return a verdict finding the amount of damages, if any, sustained by all persons and corporations, the same as upon the original petition by reason of such proposed change, and the amount of compensation to be paid to any persons or corporation therefor, and for any additional right of way that may be necessary to be appropriated.
[(42-2943) 1913, ch. 16, part of sec. 19, p. 58; compiled and reen. C.L. 168:40; C.S., sec. 4534; I.C.A., sec. 41-2543.]
During the construction of said improvement, said commissioners shall have the right to allow payment thereof, in installments as the work progresses, in proportion to the amount of work completed: provided, that no allowance or payment shall be made for said work to any contractor or subcontractor to exceed ninety per cent (90%) of the proportionate amount of the work completed by such contractor or subcontractor, and ten per cent (10%) of the contract price shall be reserved at all times by said board of commissioners until said work is wholly completed, and shall not be paid upon the completion of said work until ninety (90) days have expired for the presentation of all claims for labor performed and materials, goods, wares, merchandise and provisions furnished or used in the construction of said improvements. Upon the completion of said work and the payment of all claims hereinbefore provided for according to the terms and conditions of said contract, said commissioners shall accept said improvement and pay the contract price therefor.
[(42-2944) 1913, ch. 16, sec. 20, p. 58; reen. C.L. 168:41; am. 1919, ch. 183, sec. 10, p. 558; C.S., sec. 4535; I.C.A., sec. 41-2544.]
Any person or corporation owning land within said district shall have a right to connect any private drains or ditches for the proper drainage of such land with said system, and in case any person or corporation shall desire to drain such lands into said system, and shall find it necessary, in order to do so, to procure the right of way over the land of another, or others, and if consent thereto cannot be procured from such person or persons, then such landowner may present in writing a request to the board of commissioners of said district, setting forth therein the necessity of being able to connect his private drainage with said system, and pray therein that said system be extended to such point as he may designate in said writing, and immediately thereon said board of commissioners shall cause a petition to be filed in the district court for and in the name of said drainage district, requesting, in said petition, that said system be extended as requested, setting forth therein the necessity thereof and praying that leave be granted by the board to extend the system in accordance with the prayer of said petition, and the proceedings in such case, upon the presentation of such petition and the hearing thereof shall be, in all matters, the same as in the hearing and presentation of the original petition, for the establishment of the original system of drainage in said district, as far as applicable.
The costs in such proceedings shall be paid from the assessment of benefits to be made on the lands of the person or persons benefited by such extension, and the assessment and compensation for the right of way, damages and benefits and payment of damages and compensation, and the collection of the assessments for benefits shall be the same as in the proceedings under the original petition, and the construction of the said extension shall be made under the same provisions as the construction of the original improvement; and all things that may be done or performed in connection therewith shall be, as near as may be applicable, in accordance with the provisions already set forth herein for the establishment and construction of said original improvement: provided, that such petitioner or petitioners shall, at the time of filing such petition by said drainage commissioners, enter into a good and sufficient bond to said drainage district, in the full penal sum of $500, with two (2) or more sureties to be approved by the court, conditioned for the payment of all costs in case the prayer of said petitioner shall not be granted, which bond shall be filed in said court.
[(42-2945) 1913, ch. 16, sec. 21, p. 58; reen. C.L. 168:42; C.S., sec. 4536; I.C.A., sec. 41-2545.]
In case of the establishment of a drainage district and system of drainage under the provisions of this chapter above any other district that may theretofore have been established, and above any other system of drainage that may have theretofore been constructed in said district, and in case said district to be established above may desire to connect its drainage system with the lower or servient district, the latter district shall be made a party to the proceedings for the establishment of such system, and the petition to be filed in the district court for the establishment of the system of drainage in said upper district shall in addition to the facts hereinbefore provided and required to be set forth therein, set forth the fact that said lower system in said lower district is necessary to be used as an outlet for the system of drainage of said upper district, and that the same will be sufficient outlet and will afford sufficient capacity to carry the drainage of both said upper and lower districts; and in case said system of said lower district will be required to be enlarged by widening or deepening the same, or both, in order to give sufficient outlet to said upper district and afford sufficient drainage for said upper and lower districts, then the plans and specifications for enlarging the system of said lower district shall be filed with said petition in addition to the other data hereinbefore provided for in this chapter.
All the landowners in said lower district, or any person claiming interest therein as mortgagee or otherwise, shall be made parties defendant in said petition, and the proceedings therein as to the assessment of damages and compensation for land taken, if any be necessary to be taken in enlarging said lower system, shall be the same as in the establishment of systems of drainage in the lower or servient district as hereinbefore provided for; but the jury, in addition to the facts to be found by them as provided for in the establishment of a drainage system in the lower district, shall find and determine whether said lower system, when improved according to the plans and specifications filed with the said petition, will afford sufficient drainage for both said upper and lower districts, which finding shall be made by the jury before considering any other question at issue in said proceedings, and in case said jury should find that the system of said lower district when improved as proposed in said petition would not be sufficient, then in that case said findings shall terminate the proceedings, and no further proceedings in said case shall be had, and the costs of said proceedings shall be paid as costs in other proceedings, as hereinbefore provided for; but in such case the finding of said jury shall not terminate the objects of said upper district or operate to disorganize the same, but said upper district may begin new proceedings for the establishment of a system of drainage with some new outlet provided therein.
All costs for the enlarging or improving of said lower system that may be required, shall be assessed to the landowners in the upper district according to the benefits to be derived from the construction of said entire system, and no additional cost shall be thrown upon the lower district, and all compensation for taking any right of way that may be necessary to be taken in enlarging said lower system and all damages occurring therefrom, if any, to the landowners of said lower district, shall be ascertained and paid in the same manner as hereinbefore provided for the adjustment of compensation and damages in the establishment of drainage systems in lower districts.
Said lower district, by and through its board of commissioners, may appear in said cause and show therein any injury it may sustain as a district by reason of the additional cost of maintenance per annum which will be sustained by said lower district by reason of said enlarging or improving of the same, and judgment shall be rendered in favor of said lower district against said upper district for such an amount as found, and the same shall be paid each year as the cost of construction is paid as provided for in this chapter, and the amount so paid shall be held by said lower district as an additional fund for the maintenance of its said system as improved and enlarged by said upper district.
[(42-2946) 1913, ch. 16, sec. 22, p. 58; reen. C.L. 168:43; C.S., sec. 4537; I.C.A., sec. 41-2546.]
The whole or any portion of any natural watercourse which drains any district established under this chapter, or the whole or any portion of any ditch or drainage system already constructed or partially constructed prior to the passage of this chapter, or which may be constructed subsequent thereto, may be improved and completed as a system under the provisions of this chapter: provided, that the owner or owners of any land upon or in which any drainage system has been established or constructed in whole or in part or which may hereafter be constructed in whole or in part, may take advantage of the provisions of this chapter to organize same as a drainage district, for the purpose of completing same or for the purpose of making provision for the payment or funding of any indebtedness incurred in the construction of such system, or either; and providing for the maintenance thereof. The procedure to be followed in such case shall be the same as is herein provided for the organization of a drainage district in the first instance to the extent that same is applicable to the situation: provided, that the necessary changes and substitutions therein may be made: provided further, that in the improvement of any natural watercourse, the rights of the public therein for the purpose of navigation shall not be in any wise impaired.
[(42-2947) 1913, ch. 16, sec. 24, p. 58; am. 1915, ch. 42, sec. 3, p. 123; reen. C.L. 168:44; C.S., sec. 4538; I.C.A., sec. 41-2547.]
In the construction of any diking system under the provisions of this chapter, where it is desired to construct the same along the right of way of any public road which has theretofore been legally established, said district shall have a right to construct its dikes along such road: provided, that the dikes so constructed along such road shall not destroy or impair the same for use as a public highway; and in case of the construction or improvement of any dike along any public highway, such dike shall be constructed of sufficient width and in such manner as will be of use as a public highway.
[(42-2948) 1913, ch. 16, sec. 39, p. 58; reen. C.L. 168:45; C.S., sec. 4539; I.C.A., sec. 41-2548.]
. (1) The board of commissioners may issue warrants of such district, in payment of claims of indebtedness against such district; such warrants shall be in form and substance the same as county warrants, or as near the same as may be practicable and shall draw the legal rate of interest from the date of their presentation to the treasurer for payment, as hereinafter provided, and shall be signed by the chairman and attested by the secretary of said board: provided, that no warrants shall be issued by said board of commissioners in payment of any indebtedness of such district for less than face or par value.
(2) The board of commissioners may, in the alternative and as an option to subsection (1) of this section, elect by resolution to receive moneys due the district from the levy of taxes, assessments and other sources, to provide for the safekeeping and deposit of such moneys in accordance with the provisions of chapter 1, title 57, Idaho Code, and to pay all claims of indebtedness of the district allowed and approved by either warrant or check. If a drainage district elects this option, a certified copy of said resolution shall be served upon the board of county commissioners, the county auditor and the county treasurer. Upon allowance of claims by the board of commissioners, payment may be ordered by warrant or check signed by the chairman and the secretary. The secretary may be directed by resolution or order of the board to invest surplus funds in accordance with and subject to the provisions of chapter 1, title 57, Idaho Code, and section 50-1013, Idaho Code. The board of commissioners shall cause to be kept an accurate account of all moneys received, the sources from whence received, all moneys expended and the purposes to which applied.
[(42-2949) 1913, ch. 16, part of sec. 6, p. 58; reen. C.L. 168:46; C.S., sec. 4540; I.C.A., sec. 41-2549; am. 1983, ch. 60, sec. 1, p. 139.]
(1) All warrants issued under the provisions of this chapter shall be presented by the holder thereof to the county treasurer, who shall indorse thereon the day of presentation for payment, with the additional indorsement thereof in case of nonpayment that they are not paid for want of funds; and no warrant shall draw interest under the provisions of this chapter until it is so presented and indorsed by the county treasurer. And it shall be the duty of such treasurer, from time to time, when he has sufficient funds in his hands for that purpose, to advertise in the newspaper doing the county printing for the presentation to him for payment of as many of the outstanding warrants as he may be able to pay: provided, that thirty (30) days after the first publication of said notice of the treasurer calling in any of said outstanding warrants, said warrants shall cease to bear interest, which shall be stated in the notice. Said notice shall be published two (2) weeks consecutively, and said warrants shall be called in and paid in the order of their indorsement.
(2) If a board of commissioners has elected and complied with the provisions of section 42-2949(1), Idaho Code, and in the absence of funds to pay warrants issued, the board may by resolution order payment of warrants presented by registering such warrants as hereinafter provided, and at the same time shall prescribe the interest rate said warrants shall draw. All warrants issued shall be presented to the secretary of a drainage district by the persons holding the same. If there are insufficient funds to pay the warrants presented, the secretary must indorse thereon "not paid for want of funds," the date of indorsement, the rate of interest such warrant shall draw as fixed by resolution of the board of commissioners, and sign his name thereto; and thereafter the said warrant shall draw interest at the rate specified in such indorsement until called for payment. Warrants issued by a drainage district shall be paid in the order of their issuance from funds accruing for the year in which they are issued. After all outstanding indebtedness for any one (1) year has been paid, any balance for that year shall be transferred to a warrant redemption fund for payment of uncalled registered warrants. Where there is no outstanding indebtedness nor any uncalled registered warrants, any balance may be used for the payment of current expenses for the next fiscal year.
[(42-2950) 1913, ch. 16, sec. 32, p. 58; reen. C.L. 168:47; C.S., sec. 4541; I.C.A., sec. 41-2550; am. 1983, ch. 60, sec. 2, p. 140.]
Whenever any territory of the state of Idaho heretofore organized as a drainage district under the provisions of sections 2444 to 2483 inclusive, of the Revised Codes, shall be hereafter organized as a drainage district under the provisions of a subsequent drainage law, all debts incurred and warrants issued by the commissioners of said drainage district as heretofore organized, shall be and hereby are made legal and valid obligations against the district as organized under such subsequent drainage law: provided, however, that all debts incurred and warrants issued shall be reported to the district court by the commissioners who incurred said indebtedness or issued said warrants, or by any one of said commissioners, under oath, and be certified to as correct by the district judge of the county in which said district was located; and after such certification said district judge shall order a levy made for the payment of said obligations, and the taxes shall be collected the same as general taxes are collected: provided, however, that any creditor of any drainage district organized under sections 2444 to 2483 inclusive, of the Revised Codes, shall have the right of suit against said district, after reasonable notice of his claim to the commissioners therein, and their neglect or refusal to report said claim to the district court for certification as to its correctness: provided further, that in cases where the district as organized under a subsequent drainage law shall include other lands than were included in the district originally organized under sections 2444 to 2483 inclusive, of the Revised Codes, upon the certification of the correctness of the debts incurred and warrants issued by the commissioners of said district, by the district judge as herein provided, such debts incurred and warrants issued shall be deemed to be obligations upon the lands embraced within the limits of the district as originally organized under said sections 2444 to 2483 inclusive, of the Revised Codes, and be collected as herein provided.
[(42-2951) 1913, ch. 17, sec. 1, p. 58; reen. C.L. 168:48; C.S., sec. 4542; I.C.A., sec. 41-2551.]
Upon the establishment of any drainage district under the provisions of this chapter, and the establishment of a system of drainage therein as provided for in this chapter, the board of commissioners of such drainage district are hereby authorized to issue bonds to pay for the total cost of the work and improvements incurred or to be incurred, or of the part of the work and improvements assumed or contracted for, or to be assumed or contracted for, together with the cost of the organization of said district, and the establishment thereof, including damages assessed and compensation made or to be made to landowners for right of way, and the expense and cost of the entire proceedings, payable as provided by section 42-2954: provided, that no bonds shall, under the provisions hereof, be sold for less than their par value; and, provided further, that the total amount of the foregoing bonds shall not exceed ninety per cent (90%) of the assessments levied against the lands of the district for the payment of the cost and expense of the foregoing items.
The board of commissioners of any such drainage district is also hereby authorized to issue additional bonds, in an amount equal to, and payable from, the additional assessments which may be levied pursuant to and under the authorization expressed in section 42-2930.
The board of commissioners of any such drainage district is also authorized to issue additional bonds sufficient in amount to pay the total cost of the additional work and improvements and of the separate and additional works and improvements authorized by the foregoing section 42-2931 including the cost and expense of the costs of collection of the assessments therein authorized and of all legal and other proceedings incident to or had in connection with the ordering, authorization and doing of all such works and improvements by said board of commissioners or in connection with the court proceedings which shall be had under the provisions of this chapter.
The board of commissioners of any such drainage district is also authorized to issue additional bonds sufficient in amount to pay and redeem all or any part of the outstanding warrant or other indebtedness of said district, together with interest accrued thereon. The funding hereby authorized may be accomplished by the exchange of such funding bonds for the warrant indebtedness or other indebtedness thus to be funded, if consented to by the board of commissioners and by the owners of such outstanding warrants and other indebtedness; provided that such funding bonds shall not bear a higher rate of interest than the warrants and other indebtedness thereby funded and that such funding bonds shall be exchanged at not less than their par value and accrued interest; provided, however, that no warrant or other indebtedness shall be funded under the provisions of this paragraph, except such warrants and other indebtedness which have been issued and incurred prior to July 1, 1935.
In the event that the owners of such outstanding warrants and other indebtedness shall not consent to such exchange, such funding bonds shall be sold as required by section 42-2953, and such warrants and other outstanding indebtedness and obligations shall be called and retired as provided in said section 42-2953; provided, that all funds in the treasury of such district available for the payment or redemption of such warrants and other indebtedness shall be first applied to the payment and redemption of such warrants and other indebtedness together with the interest accrued thereon, and such funding bonds shall be issued for the retirement of the indebtedness remaining unpaid.
The foregoing bonds may be issued jointly or separately, as a unit bond issue or as separate bond issues as determined by the board of commissioners. Any or all of the bond issues authorized by this section may also be issued, if deemed advisable by the board of commissioners, as a part of a joint bond issue with drainage district refunding bonds authorized by and issued under the provisions of chapter 30 or under any other enabling acts of this state. The foregoing bonds shall be payable solely out of and from the assessments for benefits levied upon and a lien upon the lands within such drainage district, as provided elsewhere in this chapter; and all said assessments (as to the determination, apportionment and assessment thereof, objections thereto and hearing thereon and confirmation thereof, as to their nature and existence as a lien upon the lands thus assessed, as to appeals therefrom and their incontestability, as to the certification and entry thereof of record and upon the tax rolls of the county, as to collection thereof and as to tax sale of delinquent lands and redemption thereof, as to the times when such assessments shall become due and payable and be called and in what amounts, as to annual levies thereof for the liquidation of bonds at maturity and for the payment of interest thereon; and as to the mode, manner and time of doing all the foregoing, and in all other respects), shall be governed by, and shall be provided in, sections 42-2914, 42-2915, 42-2919 to 42-2929, inclusive and section 42-2934 to section 42-2936, both inclusive, and sections 42-2956 and 42-2958, and the other related provisions, of chapter 29 and as provided in this act. Provided that the foregoing funding bonds shall be paid by assessments levied upon and apportioned over the lands within the drainage district as provided by sections 42-2951 and 42-2962.
[(42-2952) 1913, ch. 16, parts of sec. 25, p. 58; reen. C.L. 168:49; am. 1919, ch. 183, sec. 11, p. 558; C.S., sec. 4543; I.C.A., sec. 41-2552; am. 1935, ch. 49, sec. 2, p. 89.]
Such commissioners may, at any time thereafter, issue such bonds in the manner and form herein prescribed for the purpose of funding any outstanding warrants or obligations of such district. In case of such last-named issue all the outstanding warrants shall immediately become due and payable upon receipt of the money by the county treasurer from the sale of said bonds, and upon a call of such outstanding obligations to be issued by him. Such call shall be made by said treasurer immediately upon the receipt of the proceeds from the sale of said bonds, by publication for two (2) consecutive weeks in the county paper authorized to do the county printing, and such warrants and outstanding obligations shall cease to draw interest at the end of thirty days after the date of the first publication.
[(42-2953) 1913, ch. 16, part of sec. 25, p. 58; reen. C.L. 168:50; C.S., sec. 4544; I.C.A., sec. 41-2553.]
Said bonds shall be numbered from one (1) upward, consecutively, and be in denominations of not less than $100 nor more than $1000. They shall bear the date of issue, shall be made payable to the bearer and bear interest, payable semi-annually, with coupons attached for each interest payment. The bonds shall be signed by the chairman of the board of drainage commissioners, and shall be attested by the secretary of said board, and the seal of such district shall be affixed to each bond, but not to the coupons. The coupons may be signed by the facsimile lithographed or engraved signatures of the said officers.
The board of commissioners shall fix the maturities of said bonds not exceeding forty (40) years from the date of their issuance and an amortization period which shall be not less than three-fourths (3/4) of the maximum maturity. During the first fourth of the period covered by the last maturity provision may be made, in the discretion of the board, for the payment of interest only. Maturities shall be so arranged that during at least the latter three-fourths (3/4) of the period covered by the last maturity the principal shall be amortized by payments thereof in annual or semi-annual instalments so arranged as to maturities that the combined principal and interest payments during the amortization period shall be approximately the same each year. Said bonds shall be payable at such place within or without the state of Idaho as may be designated by the board of commissioners. The issuing drainage district may reserve the right to redeem said bonds or any of them at any time after ten (10) years from date thereof.
[(42-2954) 1913, ch. 16, sec. 26, p. 58; reen. C.L., 168:51; C.S., sec. 4545; am. 1927, ch. 179, sec. 1, p. 242; am. 1927, ch. 254, sec. 1, p. 429; am. 1929, ch. 78, sec. 1, p. 116; I.C.A., sec. 41-2554; am. 1935, ch. 49, sec. 3, p. 89; am. 1970, ch. 133, sec. 6, p. 309.]
Said bonds may be exchanged at not less than their par value for an equal amount of the warrants of the district issuing such bonds.
[(42-2955) 1913, ch. 16, sec. 27, p. 58; reen. C.L. 168:52; C.S., sec. 4546; I.C.A., sec. 41-2555.]
At least one (1) year before the first principal maturity of said bonds (as fixed by the board of commissioners pursuant to section 42-2954) and thereafter annually, the drainage commissioners of such district issuing them are hereby authorized and required to levy an assessment sufficient to liquidate said bonds at their respective maturities. Such assessment shall be collected by the official whose duty it is to collect the county taxes, and kept as a separate fund for the sole purpose of liquidating said bonds in accordance with the provisions of the following section. The annual levies of assessments to pay bonds issued prior to the effective date of this amendment shall be made according to the law in existence at the time of the issuance of said prior bonds and according to the maturity needs thereof.
[(42-2956) 1913, ch. 16, sec. 28, p. 58; reen. C.L. 168:53; C.S., sec. 4547; I.C.A., sec. 41-2556; am. 1935, ch. 49, sec. 4, p. 89.]
It shall be the duty of the treasurer of any county in which there may be a district issuing bonds under the provisions of this chapter whenever he has upon hand $5000 of the special fund for the payment of said bonds, and when said bonds shall have run for a period of three (3) years, to advertise in the newspaper doing the county printing, for the presentation to him for payment of as many of the bonds issued under the provisions of this chapter as he is able to pay with the funds in his hands, to be paid in numerical order of said bonds, beginning with the bond number one (1), until all of said bonds are paid: provided, that thirty (30) days after the first publication of said notice of the treasurer calling in any of said bonds, said bonds shall cease to bear interest.
[(42-2957) 1913, ch. 16, sec. 29, p. 58; reen. C.L. 168:54; C.S., sec. 4548; I.C.A., sec. 41-2557.]
It shall be the duty of such drainage commissioners annually to levy an assessment sufficient for the payment of the coupons hereinbefore mentioned as they fall due.
[(42-2958) 1913, ch. 16, sec. 30, p. 58; reen. C.L. 168:55; C.S., sec. 4549; I.C.A., sec. 41-2558; am. 1935, ch. 55, sec. 2, p. 103.]
Before the bonds are delivered to the purchaser they shall be presented to the county treasurer, who shall register them in a book kept for that purpose, and known as the bond register, in which register he shall enter the number of each bond, the date of issue, the maturity, amount and rate of interest, to whom and when payable, and the proceeds derived from the sale of said bonds shall in all cases be paid by the purchaser thereof to the county treasurer.
[(42-2959) 1913, ch. 16, sec. 31, p. 58; reen. C.L. 168:56; C.S., sec. 4550; I.C.A., sec. 41-2559.]
Any drainage district organized under the provisions of this chapter is not to be conducted or operated for profit or with the view of paying dividends, but solely for the benefit and welfare of the residents and property owners of said district.
[(42-2960) 1913, ch. 16, sec. 42, p. 58; reen. C.L. 168:57; C.S., sec. 4551; I.C.A., sec. 41-2560.]
The board of commissioners of any drainage district organized under the provisions of this chapter shall, on or before the third Monday of September of each year, make an estimate of the cost of maintenance of the drainage system constructed in such district, which estimate shall include the cost of making any necessary repairs that it might become necessary to make in the maintenance of such system. Such estimate shall be made for the succeeding year, and the amount so estimated shall be certified by the board of commissioners to the auditor of the county in which such district is located, on or before said date, and the amount thereof shall be apportioned to the landowners in such district benefited by said improvement in proportion to the benefit apportioned or reapportioned, and such amount shall be added to the general taxes of such landowners and collected therewith; provided however, that at the option of the commissioners the amount apportioned to every landowner on any parcel or piece of land shall be not less than one dollar ($1.00), which amount shall be a minimum assessment to be collected as a tax for the year on every such parcel or piece of land.
[(42-2961) 1913, ch. 16, sec. 23, p. 58; reen. C.L. 168:58; am. 1919, ch. 20, sec. 1, p. 82; C.S., sec. 4552; am. 1927, ch. 53, sec. 1, p. 68; I.C.A., sec. 41-2561; am. 1953, ch. 257, sec. 1, p. 411; am. 1974, ch. 118, sec. 1, p. 1289; am. 2012, ch. 106, sec. 2, p. 283.]
The commissioners may also levy assessments for any expense necessarily incurred by them for construction, maintenance, repair, or any extraordinary reasons, and also may add to said assessment sufficient to pay any deficiency occurring the preceding year or any other unpaid warrant indebtedness, if any, or to pay any outstanding warrants: provided, that any assessments to be hereafter made by any drainage commissioners to pay for the payment or retirement of any bonds or warrants shall not exceed twenty percent (20%) of the original cost of organization and construction, and said assessment for the payment or retirement of any bonds or warrants shall be in addition to the assessments which may be levied under this section or section 42-2936, Idaho Code, and such assessments, when made, shall be apportioned under section 42-2961, Idaho Code, and collected as hereinbefore provided for.
[(42-2962) 1913, ch. 16, sec. 23, p. 58; reen. C.L. 168:58; am. 1919, ch. 20, part of sec. 1, p. 82; C.S., sec. 4553; I.C.A., sec. 41-2562; am. 2012, ch. 106, sec. 3, p. 283; am. 2018, ch. 92, sec. 3, p. 198.]
Warrants or any other evidence of drainage district indebtedness heretofore issued by the board of drainage commissioners of any drainage district for such necessary construction, maintenance, repair or any extraordinary reasons, shall be and hereby are made legal and valid obligations of such drainage district.
[(42-2963) 1913, ch. 16, sec. 23, p. 58; reen. C.L. 168:58; am. 1919, ch. 20, part of sec. 1, p. 82; C.S., sec. 4554; I.C.A., sec. 41-2563.]
The provisions of this chapter shall be liberally construed to promote the public health and welfare by reclaiming wet or overflowed lands, building embankments or levees and the preservation of any system of drainage heretofore constructed or to be constructed according to law.
[(42-2964) 1913, ch. 16, part of sec. 40, p. 58; reen. C.L. 168:59; C.S., sec. 4555; I.C.A., sec. 41-2564.]
The assessments levied by the commissioners of the drainage districts must be paid in lawful money of the United States; provided that warrants of the district may be accepted as cash for the payment of assessments levied for warrant redemption, and that matured bonds of the district and accrued interest coupons detached from any of the bonds of the district, when presented may be accepted as cash in payment of assessment levied for bond interest and principal, and in the event that the said bonds so used are of a greater denomination than the said assessments, the tax collector shall indorse upon said bond or bonds the amount necessary to pay said assessment or assessments and the date of said payment and take a receipt from such bondholder for the amount so credited, and either such receipt describing the bond so indorsed or such indorsement shall be prima facie evidence that the said sum so indorsed has been paid on said bond or bonds.
[(42-2965) I.C.A., sec. 41-2565, as added by 1933, ch. 213, sec. 1, p. 447.]
Any person or corporation having an interest in, or lien upon, any land situate within the boundaries of a drainage district now organized or existing, or hereafter organized under the laws of the state of Idaho, and which land has been, or hereafter may be, assessed for benefits for the construction of drainage works in said district, as provided in this chapter, as shown by the assessment roll of said district, confirmed by the court, shall have the right personally, or through his agents, attorneys or auditors to examine the books, records and accounts of the drainage commissioners and to make copies thereof.
[42-2966, added 1937, ch. 86, sec. 1, p. 115.]
Any person or corporation having an interest in, or lien upon, any land situate within the boundaries of a drainage district now organized and existing or hereafter organized under the laws of the state of Idaho, and which land has been, or hereafter may be, assessed for benefits for the construction of drainage works in said district, as provided in this chapter, as shown by the assessment roll of said district, confirmed by the court, and upon which any calls for assessments have been made against said assessment roll by the drainage commissioners of said district, and any or all of which calls shall have been paid upon said land, shall have the right to demand in writing from the commissioners of said drainage district and from the county treasurer of the county in which such land is situate, a statement giving the following information:
(a) Amount of original lien against said land as shown by the assessment roll of said district and confirmed by the court;
(b) Total payments made upon said land by reason of calls against said assessment roll;
(c) Total credit given on the original lien against said land created by the assessment, by reason of the payment made on calls by the drainage commissioners.
Said demand shall be personally served upon the secretary of the board of drainage commissioners of said district, and upon the county treasurer of said county.
Within ten days after the service of said notice, the commissioners of said drainage district and said county treasurer shall furnish to the person making said demand a statement in writing giving the information required by said demand. Said statement so furnished by the drainage commissioners and the county treasurer may be in one instrument or in separate instruments. The same shall be signed by the chairman of the board of drainage commissioners of said district and attested by the secretary thereof, and shall also be signed by the county treasurer.
[42-2967, added 1935, ch. 57, sec. 1, p. 109.]
If such person or corporation making said demand shall be dissatisfied as to the total amount paid or the credit given on the original lien as shown by said statements furnished under the provisions of section 42-2967, he or it shall have the right to bring an action in the district court of the county in which such land is situate, against said district and the county treasurer of the county, for the purpose of securing a determination by the court as to the total amount of payments made and the amount which should have been credited upon the lien against said lands created by the assessment roll of said district as confirmed by the court.
[42-2968, added 1935, ch. 57, sec. 2, p. 109.]
Upon the filing of said complaint said plaintiff, his agents, attorneys and auditors, shall have free access to the books, records and accounts of the drainage commissioners and shall have the right to examine the same and make copies thereof, and the secretary of said drainage district shall furnish such certified copies of said records as the plaintiff may designate, said plaintiff furnishing the copies ready for certification at his own expense. He shall also have access to the records of the county treasurer insofar as they pertain to his property, including the assessment roll of the drainage district, the distribution of moneys paid by him, and such other matters as may pertain to the preparation of his case for trial.
[42-2969, added 1935, ch. 57, sec. 3, p. 109.]
The procedure provided by law for the trial and determination of other civil actions, and appeal to the Supreme Court of the state of Idaho, shall govern the procedure in any action brought under the provisions of this act; provided, however, that no costs shall be awarded to either party, either in the district court or upon appeal to the Supreme Court.
[42-2970, added 1935, ch. 57, sec. 4, p. 109.]
Any person or corporation having an interest in or title to, or recorded mortgage or other lien upon any tract, lot or parcel of land, or any part thereof, situate within the boundaries of any drainage district now organized and existing, or that may hereafter be organized, under the laws of the state of Idaho, may at any time pay all or any part of the annual or delinquent drainage assessments due at the time of such payment, except as hereinafter otherwise provided, or may pay the whole or any part of the unpaid portion of the lien against said property as shown by the assessment roll of said district as confirmed by the court and filed with the county auditor, whether due or to become due, together with the accrued interest, if any, on any such annual or delinquent assessments, either in lawful money of the United States or with the bonds of the district at the face or par value thereof, of any date, number, series or denomination, whether original issue, funding or refunding and whether such bonds are due at the time of payment or will become due at a future date, and/or with warrants or matured interest coupons of said district at the face or par value of the same; and it shall be the duty of the county treasurer of the county in which said land is situate to accept said bonds, matured interest coupons and warrants in payment, or part payment, of any such annual or delinquent drainage assessments, or in payment of the unpaid portion of the lien against said real property created by the assessment roll of such drainage district; provided, however, that such bonds, interest coupons, and warrants hereinabove referred to shall have been issued by said drainage district subsequent to the date this act becomes effective.
[42-2971, added 1935, ch. 56, sec. 1, p. 105.]
Upon payment in full being made to the county treasurer of the lien against any such tract, lot or parcel of land, either in lawful money of the United States and/or drainage district bonds, matured interest coupons or warrants, as provided in section 42-2971, the county treasurer shall issue and deliver to such person or corporation making said payment a receipt for the amount of such payment, stating therein the total amount paid, the amount paid in cash, in bonds, in warrants and matured interest coupons of said district; and shall thereupon issue and deliver to such person or corporation a release and discharge releasing such tract, lot or parcel of land from all other or further liability for the payment of any of the then existing bonded indebtedness of the district, or any bonds thereafter issued to refund the same, or of any warrants theretofore, or that may thereafter be, issued for the payment of interest on any such bonds or refunding bonds, and releasing and discharging such tract, lot or parcel of land from the payment of any other or further liens created by reason of the assessment for benefits against said tract, lot or parcel of land as shown in the assessment roll of said district confirmed by the court; and such tract, lot or parcel of land shall not thereafter be assessed by such drainage district by reason of benefits theretofore assessed and confirmed by the court, except for the purpose of operation and maintenance thereof; provided, that all assessments for operation and maintenance theretofore levied or thereafter to be levied shall be payable only in lawful money of the United States or in warrants of the district issued against the operation and maintenance fund within the calendar year in which such warrants are tendered in payment, in which event such warrants shall be accepted by the county treasurer at par or face value thereof in payment of operation and maintenance charges.
[42-2972, added 1935, ch. 56, sec. 2, p. 105.]
The release and discharge provided for in section 42-2972, Idaho Code, shall be in substantially the following form:
Release and discharge from liability from payment of the bonded and warrant indebtedness of drainage district number …. in …. County, Idaho, from the lien of the assessment roll of said district as confirmed by the court.
WHEREAS, on the …. day of …., ….,
……… (The owner, part owner, mortgagee or other lienholder, as the case may be) paid to the County Treasurer of …. County, Idaho, …. (in cash, bonds, warrants or matured interest coupons of said district, as the case may be) the sum of $…., being the total unpaid amount of the lien against the real property hereinafter described, created by the assessment roll of said district; said property being situate within Drainage District Number …., in …. County, Idaho, and particularly described as follows, to wit:
(Insert description of property.)
and being shown on the assessment roll of said district as assessment number …..
NOW THEREFORE, in consideration of such payment, and pursuant to law, the undersigned does by those presents release and discharge the above described tract, lot or parcel of land from the lien against said land created by the assessment roll of Drainage District Number …. in …. County, Idaho, and from the payment of all of the bonded indebtedness now existing against the same, and from the payment of any bonds now issued or that may hereafter be issued to refund the same, or any part thereof, and from the payment of any warrants of the district heretofore issued or that may hereafter be issued in payment of interest on such indebtedness or refunded indebtedness, and releases and discharges said tract, lot or parcel of land from further payment of benefits assessed against said land as shown by the assessment roll of said district and from all liens created thereby, save and except assessments made or to be made by said district for the operation and maintenance thereof.
IN WITNESS WHEREOF, I, the County Treasurer of the county of …., state of Idaho, and duly authorized by law to collect all sums of money assessed by the drainage commissioners of Drainage District Number …. in said county, have hereunto set my hand as such county treasurer this …. day of …., …..
Said release and discharge shall be acknowledged before an officer authorized to take acknowledgments to conveyances. The acknowledgment shall be substantially in the following form:
STATE OF IDAHO
ss.
COUNTY OF ….
On this …. day of …., …., before me, …., (Official Character), in and for said state, personally appeared …., known to me to be the person whose name is subscribed to the within instrument as the County Treasurer of the county of …., state of Idaho, and acknowledged to me that …. he executed the same, as such treasurer.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.
[42-2973, added 1935, ch. 56, sec. 3, p. 105; am. 2002, ch. 32, sec. 15, p. 53.]
Such release and discharge, when filed for record and recorded in the office of the county recorder of the county in which such tract, lot or parcel of land is situate, shall operate as a release and discharge of the land therein described from the payment of all existing indebtedness of said district, and release the same from the lien thereof, created by the assessment roll of said district, confirmed by the court; save and except levies made or to be made for the operation and maintenance of said district.
[42-2974, added 1935, ch. 56, sec. 4, p. 105.]
All bonds, together with all unmatured coupons attached, matured interest coupons and warrants delivered to the county treasurer under the provisions of this act shall be cancelled in the same manner as if called for payment and paid.
[42-2975, added 1935, ch. 56, sec. 5, p. 105.]
All bonds hereafter issued by any drainage distrct in the state of Idaho, whether original issue, funding or refunding, shall be governed by the provisions of this act in regard to the payment thereof after default as hereafter provided.
[42-2976, added 1935, ch. 54, sec. 1, p. 102.]
If at any time twenty per cent (20%) or more of the entire issued, uncalled and outstanding bonds of such district shall be past due and unpaid, after the application of all funds available for the payment thereof, then the numerical order, or other provisions of law, of payment of all outstanding and uncalled bonds of such district shall immediately cease, and thereafter the county treasurer shall distribute all funds coming into his hands applicable to the payment of bonds pro rata on all outstanding and uncalled bonds, whether due or to become due, to the end that after such default in the percentage herein set out, there shall be paid on each outstanding and uncalled bond its equal and ratable proportion of all funds so collected for the payment of said bonds; provided further, that if at the time of such default there shall be matured and unpaid interest on any or all of such outstanding bonds, then all moneys thereafter available for the payment of interest shall be applied toward the payment of interest longest in default until all bonds shall have assumed the same relative position in regard to interest payment. When interest shall have been paid on all outstanding bonds to the same date, thereafter all moneys available for the payment of interest shall be paid equally and ratably to the holders of all outstanding and uncalled bonds. No payment shall be made by the county treasurer after such default, upon either principal or interest, except upon presentation of the bond and the indorsement by the county treasurer of the amount paid thereon, together with the date of payment, except in the event of full payment of interest coupons, said coupons shall be surrendered to the county treasurer.
[42-2977, added 1935, ch. 54, sec. 2, p. 102.]
The owner of any land within any drainage district charged with the lien of any assessment under the provisions of this chapter, may redeem the same from all liability by paying the unpaid portion of the assessment lien against such land, as shown by the assessment roll of said district, plus interest to the time of such payment; provided that the bonds of the drainage district and the accrued interest coupons thereon shall be accepted by the tax collector as cash in payment of such lien and assessment; and upon payment by any landowner of such lien and assessment against any land the same shall be relieved of all further liability and shall not be subject to any further or subsequent assessment by said district except only for the maintenance and operation of the drainage works of the district; and, provided further, upon full payment being made, as hereinabove provided, in cash and/or bonds and interest coupons, the tax collector shall issue to such owner a receipt showing the lien of the assessment against such land is fully paid and satisfied; and such tax collector shall also note upon the assessment roll of said district the full payment of the assessment against such land. All bonds and interest coupons delivered to the tax collector under the provisions of this act shall be canceled in the same manner as bonds which have been called for payment and paid.
[42-2978, added 1933, ch. 183, sec. 1, p. 338.]
Personal property of a drainage district may be sold by its board of commissioners whenever the board finds and by resolution declares that the district no longer has use therefor.
If, in the opinion of the board, such property does not exceed fifty thousand dollars ($50,000) in value, it may sell the same without independent appraisal, notice or competitive bids.
Personal property exceeding fifty thousand dollars ($50,000) in estimated value shall first be appraised by three (3) disinterested freeholders of the district, who shall be selected by the board. It may then be sold at public or private sale to the highest bidder for cash at not less than its appraised value, after due notice.
Notice of sale shall describe the property, the appraised value thereof (by separate items, if so appraised), and the time, place and condition of sale.
If the appraised value does not exceed fifty thousand dollars ($50,000), notice of sale shall be posted in three (3) public places in said district to be determined in the resolution of said board of commissioners (one (1) of which shall be at the office or meeting place of said board) at least ten (10) days before the date of sale.
If the appraised value of the property exceeds fifty thousand dollars ($50,000), notice shall be posted as set forth in subsection 4. of this section and in addition shall be published in a weekly newspaper, published or having a general circulation in the district, once each week during the four (4) weeks preceding the date of sale.
[42-2979, added 1951, ch. 63, sec. 1, p. 92; am. 2018, ch. 92, sec. 4, p. 198.]
(1) Whenever the board of commissioners of a drainage district finds and by resolution declares that the district no longer has use for any personal property of the district, or finds and declares that such property is no longer economical to use, the district may, in lieu of the sale of said property as provided in section 42-2979, Idaho Code, dispose of the property by exchanging the same in part payment for new or replacement property.
(2) If the acquisition of the new or replacement property is to be let to bid under the provisions of chapter 28, title 67, Idaho Code, the district shall include in its request for bids a full description of the property to be exchanged as part payment and shall permit any interested bidder to examine the same, and any contract let as a result of said bid shall be awarded on the basis of net cost to the district after allowance for the property to be exchanged in part payment.
(3) Exchange of property will be permitted only when, in the opinion of the board of commissioners of the district, the sale of property under the provisions of section 42-2979, Idaho Code, will yield a lesser monetary return to the district than the exchange thereof as provided in this section.
[42-2979A, added 2018, ch. 92, sec. 5, p. 199.]
A drainage district may be dissolved by the district court for the county in which the office of such drainage district was last located on complaint or petition of parties holding and owning:
(a) Fifty per cent (50%) or more of the issued, outstanding, unpaid bonds of such district; or,
(b) Fifty per cent (50%) or more of all land situated within the boundaries of such district; or,
(c) Claims, warrants, liens or other legal obligations of such district in an amount equal to not less than thirty per cent (30%) of the issued, outstanding and unpaid bonds of such district.
It must be made to appear to the satisfaction of the court, by such complaint or petition, that any one or more of the following conditions exist in or as to said district:
That the district has been abandoned, or for two (2) or more years last past has ceased to function, and there is little or no possibility that it ever will function in the future.
That no useful purpose exists for the further continuance of the organization of the district.
That there are not sufficient qualified voters of such district to hold a legal election.
That all essential functions of the district are or may be carried out and performed by another political subdivision of the state or other public or quasi public body to which all or any portion of the facilities of said district may be transferred by order of the court; provided, however, that the court, at its discretion, may require that interested persons be given further notice and opportunity to be heard with reference to any such proposed transfer.
[42-2980, as added by 1961, ch. 173, sec. 1, p. 267.]
Lands, whether public or private, which have been developed for commercial, industrial, recreational, residential, governmental or highway purposes, and from which surface water or seepage drain into the irrigation or drainage system of any person or persons, canal company, irrigation district, drainage district, or ditch owners’ association, shall be liable for a proportionate share of the cost and expense of operating, maintaining, repairing and replacing the portions of such system which are used or allocated for drainage purposes. Drainage charges for any such lands which are not subject to the regular assessment powers of the person or entity owning or controlling the system shall be billed to, and shall be paid promptly by, the governmental unit owning the land. If the lands are privately owned, the drainage charges shall be billed to, and shall be paid promptly by the county in which the lands are located, and such charges shall be included in the county budget as a separate fund for drainage, the tax for which shall be levied against all privately owned lands in the county which are benefited by such drainage and which are not subject to the regular assessment powers of the owner of the irrigation or drainage system.
[42-2981, added 1978, ch. 271, sec. 1, p. 628.]
(1) If the boards of commissioners of any two (2) or more drainage districts formed under this chapter deem it in the best interest of their respective districts that they be consolidated into a single district, and if said districts are contiguous or lie at least in part within the same county, such boards may petition the district court of the county in which a greater portion of the lands of said proposed district are located for an order consolidating the same districts. For purposes of this section, districts may be considered to be contiguous even though they are separated by a body of water or other natural barrier so long as they are located in close proximity to each other. The petition shall be a joint petition signed by a majority of the commissioners of each respective board and attested to by the secretary of each board. The petition shall set forth a description of the lands and boundaries for the respective districts, a description of the proposed consolidated district and any facts showing that the consolidation is in the best interests of said districts. The petition shall also set forth and report the total outstanding obligation bonds of each consolidating district, the total value of the assets held by each consolidating district, the total levy assessed in each consolidating district in its most recent fiscal year, and the projected total levy to be assessed for the next complete fiscal year in the proposed newly consolidated district.
(2) Evidence showing that the proposed consolidation is in the best interests of the districts may include, but is not limited to: that which shows that the proposed system of drainage will be conducive to providing the same benefits previously apportioned to the lands within the respective districts, enhance the functioning of the respective districts, the public health, convenience and welfare, or increase the public revenue, or that the consolidation of said districts and the said system of drainage and reclamation is a proper and an advantageous method of accomplishing the relief sought.
(3) Upon receiving a petition brought under this section, the district court shall fix a time and place for the hearing of the petition, and the time and manner of filing any objections to the petition. Said hearing shall be held no sooner than sixty (60) days and no later than one hundred twenty (120) days after the first publication of notice of hearing. The clerk of the court shall cause publication of such order in three (3) consecutive weekly issues in a newspaper of general circulation within each county in which any of the lands within the said proposed consolidated district are located; together with a notice of the time and place at which the district court will consider said petition for consolidation. The petitioners shall pay all costs of publication.
(4) Any person objecting to a petition for consolidation as described in this section shall provide for filing of written objection with the court. Only landowners within the proposed consolidated district, owners of land over which the drainage water from the proposed district would flow, and landowners served by any of the respective districts included in the petition shall have standing to file an objection to said petition. Written objections must be filed and served upon petitioners no later than twenty-one (21) days prior to the date of the hearing. The form of the objection shall be as provided in the Idaho rules of civil procedure. Each objection shall identify the name of the landowner entering the objection along with the objecting party’s address, location of the landowner’s land by township, range and section; identify the district or districts in which those lands lie; and state the nature or description of objection and basis or reasoning for the objection. Objections shall be limited to determining whether or not the proposed consolidation is in the best interests of the districts.
(5) The judge of the court shall, at the hearing herein provided, hear and consider argument from the petitioners and decide whether the proposed consolidation is in the best interests of said districts. The court shall then consider evidence in objection only from landowners who have filed a written objection as described in subsection (4) of this section, and only such evidence as may be presented for or against the petition or objections thereto. The landowners who have filed written objections shall bear the burden of proving that the consolidation is not in the best interests of the districts. After any evidence offered in opposition to the petition, the petitioners may offer evidence regarding the consolidation or in opposition to any objections entered. Based on the agreement in the petition to consolidate by the boards of the respective districts, there shall be a rebuttable presumption that the proposed consolidation of the districts is in the best interests of the petitioning districts and the landowners therein, unless the court finds by a preponderance of the evidence that the proposed consolidation is not in the best interests of the districts. Consolidation shall not be permitted to either exclude from the consolidated district lands that are within the petitioning districts or to include lands within the consolidated district that are not within the petitioning districts. The court shall make its determination wholly in the affirmative or negative whether said petitioning districts shall be consolidated.
(6) If the petition is granted, the court shall cause an order to be entered and recorded in the judgment record of each of the counties in which the lands within the consolidated district are situated, setting forth the facts found upon the hearing of said petition, and said order shall define the boundaries of said district and describe the lands included therein by township, range and section only. The clerk of said district court shall cause a copy of the order declaring said consolidated district, duly certified, to be filed in the office of the secretary of state. From the date of said filing and thereafter, said district consolidation shall be deemed complete.
(7) The court shall name the commissioners appointed by it for the consolidated district pursuant to the provisions of section 42-2910, Idaho Code. In appointing commissioners to the newly consolidated district, the court shall consider preference to appointment of at least one (1) commissioner from each of the districts petitioning for consolidation. The consolidated district shall be known and described by the name and number of the largest district of those consolidated.
(8) The provisions of this section shall apply exclusively to the consolidation of drainage districts which have been formed under this chapter.
[42-2982, added 2011, ch. 256, sec. 1, p. 701.]
The board of commissioners of any drainage district organized under the laws of the state of Idaho may issue negotiable coupon bonds, to be denominated refunding bonds, for the purpose of refunding any of the bonded indebtedness of the district, whether due or not due, on which has or may hereafter become payable at the option of the district or by consent of the bondholders, or by any lawful means, whether such bonded indebtedness be now existing or may hereafter be created, and there shall not be funds in the treasury of such district available for the payment or redemption of such bonds and the accrued and unpaid interest thereon.
[(42-3001) 1925, ch. 21, sec. 1, p. 29; I.C.A., sec. 41-2601.]
Whenever any drainage district has issued bonds and the same are outstanding and unpaid, and the same have been outstanding and unpaid for more than three (3) years, the district may, in the manner hereafter provided, issue and sell bonds for the purpose of paying and redeeming such outstanding bonds, and may call and pay said bonds, or at its option, may authorize the issue of sufficient bonds to pay and redeem the whole of such outstanding bonds, but may issue and sell the same in such amounts from year to year, as will pay and redeem the outstanding bonds falling due each year, and may continue to issue and sell such refunding bonds until the whole of the outstanding bond issue, which has been refunded, is paid and redeemed.
[(42-3002) 1925, ch. 21, sec. 2, p. 29; I.C.A., sec. 41-2602.]
Whenever the board of commissioners shall deem it expedient to issue refunding bonds under the provisions of this chapter, they shall by resolution duly adopted and entered upon the minutes of the district specify, the amount and date of the bonds to be refunded, the amount of the refunding bonds proposed to be issued, shall designate the denomination or denominations thereof, fix the date of issue, the rate of interest, which shall not exceed six per cent (6%) per annum.
[(42-3003) 1925, ch. 21, sec. 3, p. 29; I.C.A., sec. 41-2603.]
The board of drainage commissioners shall file in the district court of the county in which the greater portion of their lands are situated, a petition, praying that the proceedings aforesaid may be examined, approved and confirmed, and that they may be authorized and directed to execute and negotiate the said refunding bonds. The petition shall state generally that the drainage district is duly organized; that an assessment roll has theretofore been duly prepared, approved and confirmed by the court; the aggregate amount of the assessments contained therein; the amount and date of the bonds outstanding which it is sought to refund; that the same are valid and binding obligations of the district, and that it will be of benefit to the district, or the property owners therein that said bonds be refunded, together with the proceedings had and taken by the commissioners toward the issuance of said refunding bonds, and said petition need not state any further facts.
[(42-3004) 1925, ch. 21, sec. 4, p. 29; I.C.A., sec. 41-2604.]
Upon the filing of said petition, the court or judge shall fix a time for the hearing thereof, and shall order the clerk of the court to give and publish a notice of the filing of said petition. The notice shall be given and published in a newspaper in the county in which the proceeding is filed, for three (3) successive weeks. The notice shall state the time and place fixed for the hearing of the petition, and that the proceeding is brought to procure an order, approving and authorizing the sale of refunding bonds of said district, and giving the amount of said bonds, and that any person interested in the subject matter of said petition may, on or before the day fixed for the hearing thereof, file objections thereto. None of the pleadings in said matter need be sworn to. Every material statement of the petition not controverted at such hearing, must be taken as true, and every person or party failing to file objections shall be deemed to have admitted all the allegations of the petition.
[(42-3005) 1925, ch. 21, sec. 5, p. 29; I.C.A., sec. 41-2605.]
Upon the hearing of such petition, the court shall examine all of the proceedings set up in the petition, and all objections thereto, and may ratify, approve and confirm or dismiss the same. The court shall disregard every error, irregularity or omission which does not affect the substantial rights of any party, and if the court shall find that the assessments imposed by the assessment roll are final and conclusive, and adequate security for retiring and paying off said refunding bonds, and that it will be of benefit to the district or the property owners therein that said refunding bonds be issued, it shall issue its order or decree, approving and confirming such proceedings, reciting therein that the lien of the assessment roll theretofore prepared, approved and confirmed shall not be deemed to have been lost or waived but shall remain in full force and effect for the purpose of retiring and paying off said refunding bonds, in like manner as the original bond issue and shall direct the commissioners to execute and negotiate said refunding bonds as in this chapter provided.
[(42-3006) 1925, ch. 21, sec. 6, p. 29; I.C.A., sec. 41-2606.]
All or any part of such refunding bonds may be exchanged, dollar for dollar, for the bonds to be refunded, or they may be sold, at not less than their par value, as directed by the board of commissioners and the proceeds thereof shall be applied only to the purposes for which said refunding bonds are issued. The authority vested in the board of commissioners by the judgment and decree as in this chapter provided shall be and remain effective until all of the bonded indebtedness so authorized to be refunded has been paid, redeemed or refunded.
[(42-3007) 1925, ch. 21, sec. 7, p. 29; I.C.A., sec. 41-2607.]
The laws of the state of Idaho as they now exist, or as they may hereafter be amended or enacted in relation to drainage districts providing the form of bond to be issued, the issuance, registration and sale thereof, the levies to pay interest thereon and to create a sinking fund for the payment and redemption thereof, and for collection of such levies and for the calling and payment of said bonds shall govern and apply to the refunding bonds issued under the provisions of this chapter, when not in conflict herewith.
[(42-3008) 1925, ch. 21, sec. 8, p. 29; I.C.A., sec. 41-2608.]
The assessment roll or rolls of any drainage district which has been authorized and filed as provided by law, and upon which any original bond issue was made, shall continue in full force and effect, and the assessment or assessments contained therein shall be a lien upon all of the property of such drainage district as contained in such assessment roll or rolls and subject to levies for the payment of the principal and interest of said refunding bonds as the same fall due, in like manner, and to the same extent, as to the original bond issue or any issue refunded.
[(42-3009) 1925, ch. 21, sec. 9, p. 29; I.C.A., sec. 41-2609.]
This act may be known and cited as the "Flood Control District Act."
[42-3101, added 1971, ch. 300, sec. 1, p. 1219.]
It is hereby recognized by the legislature that flooding can cause significant damage to life and property in this state. It is therefore declared to be the policy of the state to provide for flood risk reduction, flood response, and flood recovery in a manner consistent with the conservation and wise development of our water resources and thereby to protect and promote the health, safety, and general welfare of the people of this state.
[42-3102, added 1971, ch. 300, sec. 2, p. 1219; am. 2024, ch. 175, sec. 1, p. 657.]
Whenever used or referred to in this act, unless a different meaning clearly appears from the context, the following terms shall have the following meanings:
(1) "Board" or "board of commissioners" means the board of commissioners of the flood control district.
(2) "Commissioner" means a member of the board of commissioners of the flood control district.
(3) "Debris removal" or "remove debris" means to remove from the channels and banks of streams, and any other surface watercourses, any artificial debris, gravel, sediment, plants, and other materials that obstruct or are likely to obstruct the flow of water therein and thereby cause flooding or interfere with the lawful diversion and beneficial use of water.
(4) "Department" means the department of water resources, state of Idaho.
(5) "Director" means the director of the department of water resources, state of Idaho.
(6) "District" means any flood control district organized by authority of this act or prior acts of the Idaho legislature.
(7) "Flood," "flood event," or "flooding" means the inundation of normally dry land areas with water caused by the overflow or rise of rivers, streams or lakes, and other surface watercourses, or the unusual and rapid accumulation or runoff of surface waters from any source.
(8) "Flood control" means the activities, operations, and projects authorized by the board for flood risk reduction, flood study, flood response, and flood recovery.
(9) "Flood control structure" or "structure" means any treatment measure on land or the channels and banks of streams and any other surface watercourses authorized by the board for flood control, including but not limited to a bank barb, berm, dike, drop structure, levee, riprap, sill, planting, device, or other mechanism.
(10) "Flood recovery" means the activities, operations, and projects authorized by the board after a flood event, including but not limited to the maintenance, construction, or installation of any flood control structure or the implementation of any flood risk reduction measure.
(11) "Flood response" or "flood fight" means the activities, operations, and projects authorized by the board in response to a flooding emergency.
(12) "Flood risk reduction" or "flood risk prevention" means activities, operations, projects, structures, and studies authorized by the board to reduce the risk of flooding, including but not limited to the removal of debris and the maintenance, repair, stabilization, restoration, alteration, or improvement of stream banks, stream channels, and other surface watercourses.
(13) "Flood study" or "study" means any data gathering, study, modeling, or other analysis used by the district in conducting flood control.
(14) "Flooding emergency" means a circumstance in which the board has determined to take immediate action to reduce injury to life or damage to property during an existing or imminent flood event.
(15) "State" means the state of Idaho.
[42-3103, added 1971, ch. 300, sec. 3, p. 1219; am. 2014, ch. 72, sec. 1, p. 183; am. 2024, ch. 175, sec. 2, p. 658.]
Flood control districts, composed of any portion of a county, or any county or counties requiring flood control, may be established pursuant to this act and when so established shall be governmental subdivisions of this state and public bodies, corporate and politic. Districts shall be assigned a number by the department and shall have all of the powers and duties conferred by law upon such districts.
[42-3104, added 1971, ch. 300, sec. 4, p. 1219.]
A petition, signed by one-third (1/3) or more of the qualified voters residing within the territory of the proposed district may be filed with the director of the department of water resources asking that a district be organized in the territory described in the petition. Such petition shall set forth:
The object of the organization of the district.
The temporary boundaries of the proposed district.
That the establishment of said district, and the proposed method or system of flood control is a proper and advantageous method of accomplishing the relief sought or the benefits to be secured.
That the establishment of said district and the reservoirs, dams, levees, dikes, power plants, plans of irrigation and drainage improving, enlarging, widening, deepening, or straightening existing watercourses or rivers or the removal of natural obstructions therefrom or any other thing to be done will be conducive to the public health and welfare or will increase the public revenue.
[42-3105, added 1971, ch. 300, sec. 5, p. 1219.]
(1) The director shall examine said petition and, if it is found to be in accordance with the requirements here set forth, shall, without delay, proceed and examine all matters named and referred to in said petition and make such surveys of the territory to be affected by the proposed district, as will enable him to fully determine whether the same is necessary, practicable or feasible and shall prepare a report of his findings. For the purpose of making his findings, the director may advise and consult with any local governmental subdivision, irrigation district, drainage district, canal company, or any individual water user who is not a member of any such company, who or which may be interested in, or affected by, the proposed district.
(2) The director shall prepare a map of the proposed district and shall divide the proposed district into not less than three (3) nor more than nine (9) divisions so as to provide adequate representation to all of the interests within said district.
[41-3106, added 1971, ch. 300, sec. 6, p. 1219; am. 2023, ch. 56, sec. 1, p. 208.]
Within a reasonable time after the filing of the petition the director shall give and publish notice that the party whose name first appears on said petition, and others, have filed a petition for organization of a district, giving the general boundaries of said district, the general outline of work, plans or improvements contemplated, and shall further state the time and place where said petition will be considered by him, and any proponents and opponents desiring to be heard shall be heard at such time and place. Such notice shall be published three (3) weeks, at three (3) consecutive weekly issues, before the date upon which said hearing will be heard, in a newspaper of general circulation within each county in which any of the lands proposed to be included within the district are located.
[42-3107, added 1971, ch. 300, sec. 7, p. 1219.]
The director shall, at the hearing herein provided, permit any person or corporation interested in the formation of the proposed district, or any of its objects or purposes, to appear and make objections to the organization of the district. The petition shall be prima facie evidence of proponents of the formulation of the district, although such petitioners may withdraw their names at said hearings, or as is otherwise provided by law. The director shall make his findings upon facts alleged in the petition and any objections presented at such hearing, and any other facts necessary for the determination of the practicability and feasibility of said district.
If the director shall recommend that said district be organized, he shall make and enter an order and record the same in the office of the county recorder of each county wherein the lands of the said district thereof are located. The order shall set forth facts as found by him upon the hearing of the petition. Upon entering and recording the order, in the manner provided, the district shall be considered as organized.
Whenever the director shall recommend against the organization of the district at the hearing, but shall recommend the formulation of a district materially different from that prayed for in the petition filed with him, there shall be no further proceedings thereon, unless the director be requested so to do by one-third (1/3) of the qualified voters therein in the same manner as provided herein for the filing of the original petition, and upon the filing of such petition the director shall be required to comply with this act as if such petition had been filed with him in the first instance.
If the director shall recommend that said district not be organized at such hearing, nothing further shall be done unless a new petition shall be filed in the manner herein provided.
[42-3108, added 1971, ch. 300, sec. 8, p. 1219.]
(1) The order of the director organizing said district shall name the initial members of the district board of commissioners without regard to political affiliation. Each division of the district shall be represented by one (1) commissioner. Each initial commissioner shall be a qualified elector pursuant to section 42-3118, Idaho Code, and shall reside within the division he represents.
(2) Each appointed commissioner shall be entitled to enter upon the duties of his office upon taking the oath of office as provided for in section 59-401, Idaho Code, and filing a bond to the state for the benefit of said district for the faithful performance of the commissioner’s duties. The amount of the bond shall be five thousand dollars ($5,000) with one (1) or more sureties, or a surety bond, the premium for which shall be a lawful expenditure of the district, either of which shall be approved by the judge of the district court wherein the commissioner resides; provided, the judge of the district court, upon application and proper showing by the board, may enter an order reducing the amount of the bond to such sum as may appear to him to be reasonable and adequate under the showing made. The commissioners shall take the oath of office and file their bonds within fifteen (15) days after they are appointed. The bonds of the initial commissioners shall be filed with the clerk of the district court of the county in which the office of the district is located and kept in trust by said clerk of the district court.
(3) Immediately after their appointment and the filing and approval of their bonds, the commissioners shall organize themselves into a board, as in this act provided, and shall by lot determine the terms of their office, which shall be one (1), two (2) and three (3) years, respectively.
[42-3109, added 1971, ch. 300, sec. 9, p. 1219; am. 2018, ch. 193, sec. 1, p. 429; am. 2023, ch. 56, sec. 2, p. 208.]
The board, duly organized by order of the director shall within a reasonable time after their appointment, qualification and organization, file, in the district court of the county in which their office is located, a petition praying that all of the proceedings prior thereto may be examined and approved by the court.
The petition shall set forth in detail the proceedings taken prior to the entry of the order organizing the district, and the subsequent appointment and organization of the board. Upon the filing of the petition the court may require such notice to be given of the hearing on said petition as in his discretion he deems necessary and proper. At the hearing the court shall require that evidenciary proof be presented of all of such proceedings taken pursuant to the rules of evidence.
In the event that the court finds that all proceedings were in conformity with this act, and that all procedures were followed, and that said district was organized in conformity with this act, then the court shall make its findings of fact, conclusions of law and order confirming these proceedings.
The order of the court entered upon the hearing of any petition shall be conclusive as the regularity of the proceedings unless appealed from within thirty (30) days after the entry of such order, provided that upon such appeal no bond shall be required, except for costs of the appeal, and no stay shall be allowed pending the appeal.
[42-3110, added 1971, ch. 300, sec. 10, p. 1219.]
(1) Annually after the director’s order organizing the district and appointing the initial members of the district board of commissioners, the board shall appoint or reappoint the commissioner or commissioners to succeed those whose terms of office are expiring and shall notify the director of such appointments. The director may make such appointments if the board fails to do so. Appointments shall be for three (3) years, provided that each division of the district shall be represented by one (1) commissioner. Each commissioner appointed pursuant to this section:
(a) Shall be a qualified elector of the district pursuant to section 42-3118, Idaho Code, and a resident of the division he represents, except that, in the event the board is unable to appoint a resident of the division, the board may appoint a person at-large who is a qualified elector of the district; and
(b) Shall qualify by taking the oath and filing a bond that meets the requirements of section 42-3109, Idaho Code, with either the clerk of the district court of the county in which the office of the district is located or with the secretary of the board.
(2) Upon the initial organization and annually thereafter on the same date, the board shall organize, by the election of one (1) of their number as chairman and one (1) of their number as vice chairman. They shall elect or appoint a secretary, who may, or may not, be a member of the board. They shall elect or appoint a treasurer, who may, or may not, be a member of the board.
(3) The chairman shall preside at all meetings, sign all claims, except his own, which shall be signed by the vice chairman, sign all warrants in payment of claims, after the submission of such claims and thus approved by the board, and such other duties as shall be required of him by law or prescribed by the board.
(4) The vice chairman, in the absence of the chairman, shall have the same powers and duties as the chairman.
(5) The secretary of the board shall have the duties as are prescribed by the board. He shall attend all meetings of the board, shall keep a record of the proceedings, and shall enter in said record all matters required by law or by the board so to be entered; and said record shall be open to inspection by any person at all reasonable times. In the absence of the secretary the board shall appoint some person, who, as acting secretary, shall keep the record of the proceedings of the board and certify the same to the secretary, and the board. Whenever in the discretion of the board it is deemed advisable to do so, the secretary may be placed under surety (fidelity) bond, in the manner and in the amount which shall be prescribed by the board.
(6) The treasurer appointed, or elected, by the board shall have such duties as the board may prescribe. He shall be placed under a surety (fidelity) bond issued by a surety company authorized to do business in the state, in such an amount as the board from time to time may determine. The treasurer shall keep a complete and accurate record of all of the financial affairs of the district and shall deposit all moneys of the district in the designated depository ordered by the board and shall comply with the public depository law as now appearing or as it may be amended.
(7) Commissioners shall hold office until they vacate their office through death, resignation, failure to meet the qualification requirements of this section, or removal by the director or until their successors are duly appointed and qualified as provided in this chapter.
(8) The director may remove a commissioner for neglect of duty, misconduct or malfeasance, or inability to perform the duties of a commissioner.
[42-3111, added 1971, ch. 300, sec. 11, p. 1219; am. 2023, ch. 56, sec. 3, p. 209.]
If there is a vacancy of any commissioner position through death, resignation, failure to meet the qualification requirements of section 42-3111, Idaho Code, or removal by the director, such vacancy shall be filled by appointment by the remaining members or member of the board. Said appointee shall be a resident of the same division of the district as the commissioner whom he is replacing and shall serve for the unexpired term, or until his successor is appointed and qualified, except that, in the event the board is unable to appoint a resident of the division vacated, the board may appoint a person at-large who is a qualified elector of the district pursuant to section 42-3118, Idaho Code, to serve as commissioner of the division where the vacancy occurred. If the board fails to fill a vacancy, or if there are no members of the board due to vacancies, the director may make such appointments to represent each division of the district.
[42-3112, added 1971, ch. 300, sec. 12, p. 1219; am. 2023, ch. 56, sec. 4, p. 211.]
(1) The board shall designate the official location of its office, that may be within or outside of the district’s boundaries.
(2) Regular meetings of the board shall be held at a time and place to be fixed by the board. The board shall send a written notice with the official location of its office and the time and place of its regular meetings to the department of water resources.
(3) Special meetings and adjourned meetings of the board may be called by the chairman, vice-chairman or secretary, or any quorum of the board, and may be held at any time. If the time and place of such special meeting shall not have been determined at a meeting of the board with all members being present, then notice of the time and place of such special or adjourned meeting shall be given to each member of the board not less than three (3) days before such special meeting is to be convened; unless such notice is waived in writing, signed by all of the members of the board present and voting at such special or adjourned meeting, and the signed waiver made a part of the minutes of such meeting.
(4) A quorum for the transaction of business of the board shall consist of a majority of the members of the board. Unless otherwise provided by law, all questions shall be determined by a majority of the vote cast. The chairman may vote in all cases, and, in the event he elects not to vote and in the case of a tie, then he must cast the deciding vote.
(5) All meetings, regular, special and adjourned, of the board, are declared to be public meetings open to the public. All meetings of the board shall be held in compliance with the open meetings law as provided in chapter 2, title 74, Idaho Code.
[42-3113, added 1971, ch. 300, sec. 13, p. 1219; am. 2025, ch. 154, sec. 1, p. 758.]
The commissioners of the district shall fix by resolution the compensation they shall each receive for their services for each day they shall actually be engaged in the business of their office, and shall fix by resolution the reimbursement they shall each receive for their travel and their necessary expenses for each day they shall be away from their place of residence and engaged in the business of their office, subject to the limits provided in section 67-2008, Idaho Code. The commissioners shall present an itemized account under oath on forms prescribed by the board.
[42-3114, added 1971, ch. 300, sec. 14, p. 1219; am. 1978, ch. 244, sec. 1, p. 535; am. 2014, ch. 72, sec. 2, p. 184; am. 2025, ch. 154, sec. 2, p. 759.]
The board of commissioners of flood control districts shall have the following powers and duties:
(1) To annually fix and determine the amount of money required to be raised by taxation to supply funds for costs of construction, costs of operation and maintenance of the work and equipment of the district, and to levy and cause to be collected assessments on real property within the district in an amount not to exceed six hundredths of one percent (.06%) of the market value for assessment purposes on all taxable property within the district, provided however that a higher levy may be approved and ratified by the qualified voters at an election to be held, subject to the provisions of section 34-106, Idaho Code, for that purpose in the same manner as provided for the approval and ratification of contracts in section 42-3117, Idaho Code, and said levy shall be certified by the board to the board of county commissioners of the county, or counties, in which said district is located, with directions that, at the time and in the manner required by law for levying taxes for county purposes, such board, or boards, of county commissioners shall levy such tax on the market value for assessment purposes of the real property within the boundaries of the district. Such certification of levies shall be prepared and forwarded by the board of the flood control district to the board, or boards, of county commissioners on or before September 1 of each year. Such levies shall be levied and collected in the manner provided by law, and the moneys collected shall be turned over to the treasurer or treasurers of the county, or counties, in which said district is located. Said moneys shall be public funds and subject to the provisions of the public depository laws of the state.
(2) To employ such personnel as may be necessary to carry out the purposes and objects of this chapter, with the full power to bind said district for the compensation of such personnel.
(3) To sue and be sued in the name of the district; to have a seal, which seal shall be judicially noticed; to have perpetual succession unless terminated as hereinafter provided; to make and execute contracts and other instruments necessary or convenient to the exercise of its power; and to promulgate, amend and repeal rules not consistent with the provisions of this chapter.
(4) To manage and conduct the business and affairs of the district, both within and without the district.
(5) To enter into contracts for the purposes of this chapter, provided however, that the board shall purchase goods and services in accordance with the provisions of chapter 28, title 67, Idaho Code. However, where it is determined by order of the board that there is an existing flooding emergency, or that the district is in a flood fight, the requirement for sealed competitive bids shall not apply.
(6) To prescribe the duties of officers, agents and employees as may be required.
(7) To establish the fiscal year of the district and to keep records of all business transactions of the district.
(8) To prepare a statement of the financial condition of the district at the end of each fiscal year in a form to be prescribed by the director or by the legislative services office, to publish in at least one (1) issue of some newspaper published or in general circulation in the county, or counties, in which such district is located and to file a certified copy of such financial report with the director and the legislative services office on or before February 2 of each year.
(9) To have an audit of the financial affairs of the district as required in section 67-450B, Idaho Code. A certified copy of said audit shall be filed with the director on or before February 2 following the audit.
(10) To obtain options on and acquire by purchase, exchange, lease, gift, grant, bequest, devise, or otherwise any property, real or personal, in accordance with chapter 28, title 67, Idaho Code, and improve any properties acquired; to receive income from such properties and to expend such income in carrying out the purposes and provisions of this chapter; to lease any of its property or interest therein in furtherance of the purposes and provisions of this chapter.
(11) To have the power of eminent domain for the use of the district in the construction, operation, maintenance and upkeep of its structures, waterways, dikes, dams, basins, or any other use necessary in the carrying out of the provisions of this chapter.
(12) To convey rights-of-way and easements for highways, public roads, public utilities, and for other purposes over district property, as shall be determined by the board to be in the best interests of the district.
(13) To convey, by deed, bill of sale, or other appropriate instrument, all of the estate and interest of the district in any real or personal property. Prior to such sale or conveyance, the board shall have the property appraised by three (3) disinterested residents of the district, which appraisal shall be entered in the minutes of the board. The property may be sold at public auction or at a private sale by sealed competitive bids, as the board shall determine, to the highest cash bidder, provided that in no case shall any property of a district be sold for less than its appraised value. All sales by sealed competitive bids shall be advertised as herein provided.
(14) To conduct, implement, participate in, and support the following flood control activities and operations independently or in cooperation with other agencies, entities, and individuals, whether within or outside the boundaries of the district:
(a) Flood risk reduction;
(b) Flood response;
(c) Flood recovery;
(d) Construction, operation, maintenance, repair, or replacement of flood control structures;
(e) Flood studies;
(f) Use and improvement of streams, channels, and other surface watercourses for flood management;
(g) Declaring a flooding emergency and conducting flood response. Provided however, that the extent of any stream channel alteration during a flooding emergency shall be limited to that amount of work deemed necessary by the board to safeguard life or property, including growing crops;
(h) Repair and stabilization of stream banks;
(i) Removal of debris. If the district determines that there is no reasonable means of transporting and disposing of debris outside the mean high water mark of the channel, the district may deposit the debris along the stream banks outside the mean high water mark and may thereafter dispose of combustible materials removed from the stream by burning in conformance with any applicable permitting requirements of the state of Idaho or local governments and after reasonable notice to nearby landowners; and
(j) Conducting flood control operations to prevent flooding from the release of water from a canal, ditch or drain upon the request of the owner thereof.
(15) To enter into contracts or agreements with the United States or any of its officers, agents, or subdivisions, or with the state or any of its officers, agents or political subdivisions, and to cooperate with such governments, persons or agencies in effectuating, promoting and accomplishing the purposes of this chapter, provided that the district has sufficient moneys on hand, or in their budget for the year in which said contract is entered into, to defray the expenditure of funds called for in such contract without the creation of any indebtedness. Whenever any such contract shall, by its terms, require the expenditure of funds by the district in excess of the moneys on hand or the funds to be realized from its budget for the year in which said contract is entered into, then such contract may not be entered into by the district until ratified by two-thirds (2/3) of the qualified voters voting at an election to be held, subject to the provisions of section 34-106, Idaho Code, for that purpose, according to the provisions of this chapter.
(16) To bear its allocated share of the cost of any project resulting from any contract or agreement entered into as provided herein.
(17) To take over, administer and maintain pursuant to any agreement or contract entered into in accordance with the provisions of this chapter any flood control project within or without the boundaries of the district undertaken in cooperation with the United States or any of its agencies, or with the state of Idaho or any of its agencies, or any combinations thereof.
(18) To accept donations, gifts and contributions in money, services, or materials, or otherwise, from the United States or any of its agencies, or the state of Idaho or any of its agencies, or any combinations thereof, and to expend such moneys, services, or materials in carrying out its operations.
(19) To exercise all other powers necessary, convenient or incidental to carrying out the purposes and provisions of the chapter.
[42-3115, added 1971, ch. 300, sec. 15, p. 1219; am. 1979, ch. 175, sec. 1, p. 523; am. 1985, ch. 79, sec. 1, p. 152; am. 1993, ch. 258, sec. 1, p. 887; am. 1993, ch. 327, sec. 21, p. 1212; am. 1993, ch. 387, sec. 12, p. 1428; am. 1995, ch. 82, sec. 18, p. 228; am. 1995, ch. 118, sec. 60, p. 475; am. 1996, ch. 159, sec. 17, p. 520; am. 2005, ch. 213, sec. 9, p. 643; am. 2014, ch. 72, sec. 3, p. 184; am. 2024, ch. 175, sec. 3, p. 659; am. 2025, ch. 154, sec. 3, p. 759.]
(1) In the event that the district’s activities and operations will alter a stream channel within the meaning of section 42-3802, Idaho Code, the district shall obtain the director’s prior approval pursuant to chapter 38, title 42, Idaho Code.
(2) The district’s conduct of flood response during a flooding emergency declared by the board shall not require a stream channel alteration permit, provided the district complies with the emergency waiver procedures consistent with section 42-3808, Idaho Code, and rules promulgated by the Idaho water resource board.
[42-3116, added 2014, ch. 72, sec. 4, p. 186; am. 2024, ch. 175, sec. 4, p. 661.]
Whenever any contract with the United States or any agency thereof or, the state, is proposed to be entered into by any district which would create indebtedness in excess of the moneys on hand or the funds to be realized from their budget for the year in which said contract is entered into, the board shall first submit the question to the qualified voters of the district at an election to be held, subject to the provisions of section 34-106, Idaho Code, for that purpose.
Notice of such election must be given as provided in section 34-1406, Idaho Code. The notice must specify the date of the holding of the election, the qualification of the voters, the nature of the contract set forth in general terms, and by reference shall give notice as to where a copy of such contract, proposed to be entered into, may be viewed by the qualified voters, one (1) of which places shall be with each of the commissioners of the district and such other places as the board may determine by their order. Said notice shall further set forth the amount of the contract, the amount of the funds, if any, which will be received from the United States, and/or the state, the amount that the district will be obligating itself to pay, the duration of construction and obligation of such contract, the estimate of the mill levy required for operation, maintenance and administrative expenses of the district, whether such obligation may be met, within the limitations imposed by the levy authorized by this chapter, or whether, in addition to voting upon the contract it will be necessary to vote upon an increase in the authorized levy.
The notice shall further state the hours between which the polls will be open, the definite place or places of holding the election, which shall be fixed by the board by its order, which order will require at least one (1) polling place in every division of the district, and the question to be voted upon.
The ballot shall contain the question to be voted upon and shall contain the words "Contract-Yes" and "Contract-No," or other words equivalent.
In the event such contract requires the district to call for a levy beyond the limitations imposed in section 42-3115, Idaho Code, then the ballot shall contain the question to be voted upon and shall contain the words "Contract and Levy-Yes" and "Contract and Levy-No" or other words equivalent.
In this election, the polling places shall be presided over by a board of election which shall be appointed by the board which shall consist of two (2) judges and a clerk, who shall be qualified voters of the division and the district. Before entering upon their duties each member of the board of election shall take an oath, which shall be administered by any qualified district voter before they shall perform their duties as such member of the board of election.
In such election the ballots used by the voters shall be kept in a sealed container until the polls are closed at the time specified in the notice of election and then shall be counted in open view.
It is intended that no informalities in the conduct of such election shall invalidate the same if the election shall have been otherwise fairly held.
The returns of such election shall be canvassed by the board which shall constitute the board of canvassers. All ballot boxes shall be returned to the board immediately upon the close of the polls and the counting of the ballots, and the ballots shall be canvassed not more than ten (10) days thereafter.
If upon the canvass of the votes it appears that the contract was approved by two-thirds (2/3) of the qualified voters voting at the election, then the contract will be considered to be approved.
[42-3117, added 1971, ch. 300, sec. 17, p. 1219; am. 1995, ch. 118, sec. 61, p. 477.]
No person shall be entitled to vote at an election for the purpose of raising the authorized maximum levy or the ratification of contracts by a flood control district, or for any other purpose in connection with said district, unless at the time of the election he is:
An elector within the meaning of article 6, section 2, of the Constitution of the state of Idaho; and
A resident within the district for a period of thirty (30) or more days next preceding the election.
[42-3118, added 1971, ch. 300, sec. 18, p. 1219; am. 1982, ch. 254, sec. 10, p. 652.]
(1) The commissioners of any flood control district may in the manner provided by law obtain title to any unappropriated waters which said district has developed, conserved, or stored and said commissioners may sell, dispose, or use said waters within or without the said district in any manner which the commissioners shall decide is of the greatest advantage to the district. The powers herein granted to the commissioners shall not be denied them by reason of contrary provisions of any other statute, except that the district may not obtain title to any waters previously appropriated.
(2) If in the operation of the works of the flood control district or in the removal of natural obstructions from the beds of navigable lakes, rivers, and streams between the ordinary high water marks, the district acquires rock, sand or gravel aggregates, the district may dispose of such aggregate not needed for district purposes through commercial sales or by donation to public agencies. District purposes as used in this section shall include construction or reconstruction of dikes, levees, and related access facilities. If sold through commercial sales or used for nonflood control related improvements on private land, the fees required by chapter 7, title 47, Idaho Code, shall apply and shall be paid to the state board of land commissioners. If the aggregate is donated to any public agency for use by that public agency, no fees shall be imposed or collected.
(3) As used in this section, public agency means a state agency, county, municipality, or highway district.
[42-3119, added 1971, ch. 300, sec. 19, p. 1219; am. 1986, ch. 142, sec. 1, p. 399.]
An existing district may be enlarged in the same manner as a district may be originally organized pursuant to the provisions of this act, except that a petition for the enlargement of an existing district shall be signed by at least one-third (1/3) of the qualified voters in the area of the proposed extension to this existing district, as shall be determined by the voters who voted in the last general election next preceding the filing of the petition for enlargement; and shall bear the indorsement of the board of the existing district certifying that the proposed enlargement is desirable.
[42-3120, added 1971, ch. 300, sec. 20, p. 1219.]
If the boards of commissioners of any two (2) or more flood control districts which are contiguous deem it for the best interests of their respective district that the same be consolidated into a single district, such boards may petition the director of the department of water resources, state of Idaho, for an order consolidating the said districts.
[42-3121, added 1971, ch. 300, sec. 21, p. 1219.]
Upon receiving a petition for the consolidation of two (2) or more flood control districts, the director shall investigate the condition of such districts, and all questions affecting such proposed consolidation, and within a reasonable time shall give and publish a notice of the proposed consolidation, which notice shall state a time and place where said petition will be considered by him, and any proponents of objections desiring to be heard shall be heard at such time and place. Such notice shall be published two (2) weeks in three (3) consecutive weekly issues before the date upon which the same is to be heard, in a newspaper of general circulation within each county in which any of the lands within the said proposed consolidation district are located.
[42-3122, added 1971, ch. 300, sec. 22, p. 1219.]
The director shall, at the hearing herein provided, permit any person or corporation interested in the proposed consolidation or in any of its objects or purposes, to appear and make objection to the consolidation of said district.
The director shall make his findings upon facts alleged in the petition and any objections presented at such hearing and any facts based on his own investigation and any other facts necessary for the determination of the practicability and feasibility and desirability of said consolidation.
[42-3123, added 1971, ch. 300, sec. 23, p. 1219.]
The director shall recommend for or against the consolidation, basing his decision on his findings of facts and stating his reasons. If the director shall recommend that the districts be not consolidated, nothing further shall be done, unless a new petition shall be filed in the manner herein provided. If the director shall recommend that the districts be consolidated, he may make and enter an order consolidating the districts and record said order in the office of the county recorder of each county wherein the lands in said consolidated district are located. The order shall also divide the consolidated district into not less than three (3) nor more than nine (9) divisions, and shall name the commissioners appointed by him for the consolidated district. The consolidated district shall be known and described by the name and number of the largest district of those consolidated. In the case of the consolidation of two (2) or more districts which are contiguous and already existing and concerning each of which the confirmation of proceedings has already been obtained, procedure the same in all respects as herein specified for the creation of an original flood control district shall be followed by the board of the consolidated district for the purpose of procuring a like order, or orders, of the district court touching such consolidation.
[42-3124, added 1971, ch. 300, sec. 24, p. 1219.]
The director may upon receiving a petition for consolidation of two (2) or more flood control districts, order an election to be held, subject to the provisions of section 34-106, Idaho Code, in each district. If two-thirds (2/3) of the qualified voters in each district, voting at the election, shall vote in favor of consolidation, the director shall make and enter an order consolidating the districts as in the preceding section. If fewer than two-thirds (2/3) of the qualified voters in any district voting at the election shall vote in favor of the consolidation, nothing further shall be done, unless a new petition shall be filed in the manner herein provided.
[42-3125, added 1971, ch. 300, sec. 25, p. 1219; am. 1995, ch. 118, sec. 62, p. 478.]
A district may be dissolved by the district court for the county in which the office of a district was last located, on complaint or petition of parties holding and owning:
Fifty per cent (50%) or more of the issued, outstanding, unpaid bonds of such district; or
Fifty per cent (50%) or more of all land located within the boundaries of such district; or
Claims, warrants, liens or other legal obligations of such district in an amount equal to not less than thirty per cent (30%) of the issued, outstanding and unpaid bonds of such district; or
Upon the complaint of the director of the department of water resources.
It must be made to appear to the satisfaction of the court, by such complaint or petition, that any one (1) or more of the following conditions exist in or as to said district:
That the district has been abandoned, or for two (2) or more years last past has ceased to function, and there is little or no possibility that it will ever function in the future.
That no useful purpose exists for the further continuance of the organization of the district.
That there are not sufficient qualified voters of such district to hold a legal election.
[42-3126, added 1971, ch. 300, sec. 26, p. 1219.]
The qualified electors residing in a division of a flood control district may petition the director of the department of water resources requesting to be excluded from a district. Said petition must be signed by one-third (1/3) or more of the qualified electors residing within the territory of the division and the petition must:
(1) Show that the division either plans to join another existing district or form a new district.
(2) Describe the impacts on the remainder of the district after the division is excluded.
(3) Describe the benefits to the division that will result from its exclusion from the original district.
(4) Be in proper form as required by section 42-3105, Idaho Code, to proceed with the formation of a new district or be in proper form as required by section 42-3120, Idaho Code, to proceed with the addition of the division to an already existing district.
(5) Present an equitable division of assets and liabilities between the division and the remaining district.
Upon receipt, the director shall examine the petition, and if in proper form and if it appears that an equitable distribution of assets and liabilities can be made, the director shall proceed with the publication of notice, as described in section 42-3107, Idaho Code. The director shall, at the hearing, permit any person or corporation interested in the exclusion of the division to appear and present testimony and evidence in support of or against exclusion of the division. The director shall base his findings upon allegations in the petition, testimony and evidence presented at the hearing and any other facts necessary for the determination of the practicability and feasibility of exclusion of the division.
If the director shall recommend that a division should be excluded, he shall make and enter his findings in the form of a petition to the district court for the county in which the largest portion of the division is located. The district court may then order the exclusion of a division.
If the director shall determine that a division should not be excluded, nothing further shall be done, unless a new petition is filed in a similar manner as described above.
At such time as the division is excluded by the district court, the new district or enlargement of an existing district shall be ordered by the director in accordance with section 42-3108, Idaho Code.
The director may redivide the district from which the division was excluded in order to meet the requirements of section 42-3106, Idaho Code.
[42-3127, added 1984, ch. 240, sec. 1, p. 586.]
The distribution of assets and liabilities made necessary by the exclusion of a division from a flood control district pursuant to section 42-3127, Idaho Code, shall be established by decree of the district court. In order to establish the distribution of assets and liabilities between the remaining district and the excluded division, the court may consider the director’s findings and recommendations, county tax records and district records.
[42-3128, added 1984, ch. 240, sec. 2, p. 587.]
The holder or holders of any title, or evidence of title, representing any body of lands, may file with the board of commissioners of a flood control district a petition in writing praying that said land may be annexed into the district. The lands proposed to be annexed to the district may be contiguous or noncontiguous to the existing boundaries of the district. The petition shall be submitted on a form provided by the district. The petition shall contain a legal description of the lands proposed to be annexed and any other information the district may require, and the petitioners shall state under oath that petitioners hold title to the lands. The board may require petitioners to advance to the district sufficient money to pay the district’s estimated costs of proceedings on the petition.
[42-3129, added 2020, ch. 249, sec. 1, p. 730; am. 2021, ch. 158, sec. 1, p. 437.]
A guardian, executor, or administrator of an estate who is appointed as such under the laws of this state, and who, as such guardian, executor, or administrator, is entitled to the possession of the lands belonging to the estate that he represents, may, on behalf of the ward or the estate that he represents, upon being thereunto authorized by the proper court, sign and acknowledge the petition mentioned in this chapter for the change of boundaries of the district.
[42-3130, added 2020, ch. 249, sec. 2, p. 731.]
The district shall cause a notice of the filing of such petition to be published in the manner provided in section 42-3117, Idaho Code. The notice shall contain the names of the petitioners and a description of the lands mentioned in the petition. The notice shall provide that all persons interested in or that may be affected by the proposed annexation may appear at the office of the board, at a time named in the notice, and show cause in writing, if they have any, why the lands mentioned should not be annexed to the district.
[42-3131, added 2020, ch. 249, sec. 3, p. 731.]
The board of commissioners, at the time mentioned in the notice, or at such other time to which the hearing may be adjourned, shall hear the petition and all the objections thereto. The failure of any person to appear and object shall be taken as an assent on the person’s part to a change of the boundaries of the district as prayed for in the petition, or to such a change thereof as will include a part of the lands.
[42-3132, added 2020, ch. 249, sec. 4, p. 731.]
If the board of commissioners deems a proposed annexation not to be in the best interest of the district, the board shall reject the petition. If the board deems the proposed annexation in the best interest of the district, the board may order the lands identified in the petition or some part thereof be annexed into the district. The lands annexed to the district may be contiguous or noncontiguous to the existing boundaries of the district. The annexation order shall describe the lands to be annexed into the district, and the board may cause a survey thereof to be made if deemed necessary. Thereafter, the annexed land shall be included within the boundaries of the district and shall be subject to such assessments from time to time as the board levies pursuant to section 42-3115, Idaho Code. The board shall state in its minutes at its next regular meeting in which division in the district the annexed lands shall be included, and, if it deems necessary, the board shall make an order redividing the district into divisions, in the same manner and to like effect, as near as may be, as provided for that purpose on the formation of the district.
[42-3133, added 2020, ch. 249, sec. 5, p. 731; am. 2021, ch. 158, sec. 2, p. 437.]
The board of commissioners shall cause a copy of the annexation order, certified by the chairman and secretary of the board, to be filed for record in the recorder’s office of the county or counties within which the annexed lands are situated, and thereupon the district shall be and remain a flood control district as fully and to every intent and purpose as if the annexed lands that are included in the district’s boundaries had been included at the original organization of the district.
[42-3134, added 2020, ch. 249, sec. 6, p. 732.]
It is hereby declared that the organization of water and sewer districts, having the purposes and powers provided in this act, will serve a public use and will promote the health, safety, prosperity, security and general welfare of the inhabitants of said districts.
[42-3201, added 1947, ch. 152, sec. 1, p. 364.]
A water district is one to supply water for domestic, commercial, and/or industrial purposes by any available means, and for that purpose any such district shall have power to extend its water lines to the source of water supply.
A sewer district is one to provide for sewage disposal and for that purpose any such district shall have power to extend its sewer lines to an appropriate outlet.
A district may be created for a combination of water and sewer purposes, or either of said purposes. A district may be entirely within or entirely without, or partly within and partly without one (1) or more municipalities or counties, and the district may consist of noncontiguous tracts or parcels of property.
The word "board" as used in this chapter shall mean the board of directors of a district.
A "qualified elector" of a district, within the meaning of and entitled to vote under this chapter, unless otherwise specifically provided herein, is a person qualified to vote at general elections in this state, and who has been a bona fide resident of the district for at least thirty (30) days prior to any election in the district.
Wherever the term "publication" is used in this chapter and no manner specified therefor, it shall mean publication twice, the first time not less than twelve (12) days prior to the election and the second time not less than five (5) days prior to the election, as provided in section 34-1406, Idaho Code.
[42-3202, added 1947, ch. 152, sec. 2, p. 364; am. 1955, ch. 63, sec. 1, p. 122; am. 1957, ch. 29, sec. 1, p. 40; am. 1974, ch. 101, sec. 1, p. 1202; am. 1975, ch. 189, sec. 1, p. 529; am. 1995, ch. 118, sec. 63, p. 479.]
A recreational water and/or sewer district is one in which less than a majority of the landowners or state lessees or federal permittees in the district sought to be created reside within the district and at least fifty percent (50%) of the land area of said district is in a natural state, or used for agricultural purposes.
The actual or potential development anticipated for said district shall be predominantly recreational in character. The district or areas near the district shall meet one (1) or more of the following criteria: have unique scenic value; man-made or natural recreational facilities such as waterways, marinas, ski slopes, wilderness areas; provide open space; and be removed from large, densely populated urban areas. Recreational water and/or sewer districts shall provide services and/or facilities to landowners or state lessees or federal permittees. The proposed district shall be in the best interests of the state of Idaho in that the benefits derived by property owners shall effectuate the preservation and development of recreational opportunities within the state.
An annexation shall not change the status of a recreational water and/or sewer district.
[42-3202A, added 1975, ch. 189, sec. 2, p. 529; am. 1979, ch. 272, sec. 1, p. 707; am. 1980, ch. 191, sec. 1, p. 422; am. 1982, ch. 364, sec. 1, p. 914; am. 2016, ch. 278, sec. 1, p. 766.]
Each petition filed with the clerk of the district court pursuant to the provisions of this chapter shall be verified and the petitioner shall certify or prove to the satisfaction of the court that the district sought to be created is a recreational water and/or sewer district under the terms of section 42-3202A, Idaho Code. The court decree pursuant to the provision of section 42-3207, Idaho Code, determining the nature of such district pursuant to the petitioner’s prayer shall be conclusive for this and all other purposes. If the water and/or sewer district sought to be created is a recreational water and/or sewer district as defined in section 42-3202A, Idaho Code, such recreational water or sewer district shall be created in the manner provided in chapter 32, title 42, Idaho Code, except that the term, "qualified elector" shall mean any natural person who is qualified to vote in an Idaho general election, and who is an actual resident of the district, or who is an actual resident of Idaho, owning land within the boundaries of the district or area to be included within the district, or is a lease holder of a state recreational lease, or is a permit holder of a federal recreational use permit and pays personal property tax on improvements on the lease or permit area, irrespective of his or her place of residence in Idaho. The holder or holders of a bona fide contract to purchase any land within the proposed district whose names appear upon the next preceding county assessment roll for the payment of taxes on the land shall be deemed an owner of land for the purposes of this section.
[42-3202B, added 1979, ch. 272, sec. 2, p. 708; am. 1980, ch. 191, sec. 2, p. 422; am. 1982, ch. 364, sec. 2, p. 915; am. 1995, ch. 118, sec. 64, p. 479.]
The board of directors of a water and/or sewer district may, at any time after the formation of such district, determine that the district qualifies as a recreational water and/or sewer district as defined under section 42-3202A, Idaho Code, and that it is in the best interest of the district to petition the court to change the district’s status to a recreational water and/or sewer district. Said petition must be filed in the office of the clerk of the court vested with jurisdiction, in a county in which the major part of the real property in the existing district is situated. The petition must be signed by the chairman of the district’s board of directors and shall set forth the following:
(1) The name of the existing district, date on which said district was formed and a general description of the district’s boundaries.
(2) That the petition was initiated after a majority vote of the board of directors that it is in the best interest of the district to change its status to a recreational water and/or sewer district.
(3) The criteria the district meets under section 42-3202A, Idaho Code, thereby qualifying it as a recreational water and/or sewer district.
(4) A prayer for changing the status of the existing district to that of a recreational water and/or sewer district.
Upon filing of the petition, the court shall by order fix a time and place for hearing as provided in section 42-3206, Idaho Code. Upon the hearing of said petition any interested persons or corporations may appear before said court and make objections to the proposed status change. Further, if it then shall appear that the petition for a change in status has been signed and presented as hereinabove provided and the allegations of the petition are true, the court shall by order duly entered of record, grant the prayed for change of status of the existing district.
[42-3202C, added 1988, ch. 302, sec. 1, p. 958.]
The district court sitting in and for any county in this state, or any judge thereof in vacation, is hereby vested with jurisdiction, power and authority to establish districts which may be entirely within or partly within and partly without the judicial district in which said court is located.
[42-3203, added 1947, ch. 152, sec. 3, p. 364.]
The organization of a district shall be initiated by a petition filed in the office of the clerk of the court vested with jurisdiction, in a county in which the major part of the real property in the proposed district is situated. The petition shall be signed by not less than ten per cent (10%) of the taxpayers of the district, who pay a general tax on real property owned by him or her within the district; provided, however, that no single tract or parcel of property containing five (5) acres or more may be included in any district organized under this act without the consent of the owner or owners thereof.
The petition shall set forth:
(1) The name of the proposed district consisting of a chosen name preceding the words, "water district" or "sewer district," or "water and sewer district."
(2) A general description of the improvements to be constructed or installed within and for the district.
(3) The estimated cost of the proposed improvements.
(4) A general description of the boundaries of the district or the territory to be included therein, with such certainty as to enable a property owner to determine whether or not his property is within the district.
(5) A prayer for the organization of the district.
No petition with the requisite signatures shall be declared null and void on account of alleged defects, but the court may at any time permit the petition to be amended to conform to the facts by correcting any errors in the description of the territory, or in any other particular. Similar petitions or duplicate copies of the same petition for the organization of the same district may be filed and shall together be regarded as one petition. All such petitions filed prior to the hearing on the first petition filed, shall be considered by the court the same as though filed with the first petition placed on file.
[42-3204, added 1947, ch. 152, sec. 4, p. 364.]
At the time of filing the petition or at any time subsequent thereto, and prior to the time of hearing on said petition a bond shall be filed, with security approved by the court, sufficient to pay all expenses connected with the proceedings in case the organization of the district be not effected. If at any time during the proceeding the court shall be satisfied that the bond first executed is insufficient in amount, it may require the execution of an additional bond within a time to be fixed, not less than ten (10) days distant, and upon failure of the petitioner to execute the same, the petition shall be dismissed.
[42-3205, added 1947, ch. 152, sec. 5, p. 364.]
Immediately after the filing of such petition, the court wherein such petition is filed or a judge thereof in vacation, shall by order fix a place and time, not less than twenty (20) days nor more than forty (40) days after the petition is filed, for hearing thereon and thereupon the clerk of said court shall cause notice by publication to be made of the pendency of the petition and of the time and place of hearing thereon; the clerk of said court shall also forthwith cause a copy of said notice to be mailed by U.S. registered mail to the board of county commissioners of each of the several counties and to the governing body of each municipality having territory within the proposed district.
The district court in and for the county in which the petition for the organization of a district has been filed, shall thereafter for all purposes of this act, except as hereinafter otherwise provided, maintain and have original and exclusive jurisdiction, coextensive with the boundaries of the district, and of the real property proposed to be included in said district or affected by said district without regard to the usual limits of its jurisdiction.
No judge of such court wherein such petition is filed shall be disqualified to perform any duty imposed by this act by reason of ownership of property within any proposed district.
[42-3206, added 1947, ch. 152, sec. 6, p. 364.]
On the day fixed for such hearing or at any adjournment thereof the court shall ascertain from the tax rolls of the county or counties in which the district is located or into which it extends, the total number of taxpayers within the proposed district, who pay a general tax on real property owned by him or her within the district.
If the court finds that no petition has been signed and presented in conformity with this chapter, or that the material facts are not as set forth in the petition filed, it shall dismiss said proceedings and adjudge the costs against the signers of the petition in such proportion as it shall deem just and equitable. No appeal or writ of error shall lie from an order dismissing said proceedings; but nothing herein shall be construed to prevent the filing of a subsequent petition or petitions for similar improvements or for a similar district, and the right so to renew such proceedings is hereby expressly granted and authorized.
Any time after the filing of the petition for the organization of a district and before the day fixed for the hearing thereon, the owner or owners of any real property within the proposed district may file a petition with the court stating reasons why said property should not be included therein, why his land or any part thereof will not be benefited by the proposed district, or should not be embraced in said district and made liable to taxation therefor, and praying that said property be excluded therefrom. Such petition shall be duly verified and shall describe the property sought to be excluded. The court shall conduct a hearing on said petition and shall hear all objections to the inclusion in the district of any lands described in said petition. In case any owner of real estate included in said proposed district shall satisfy the court that his real estate, or any part thereof, has been wrongfully included therein or will not be benefited thereby then the court shall exclude such real estate as will not be benefited.
Upon said hearing, if it shall appear that a petition for the organization of a district has been signed and presented as hereinabove provided, in conformity with this chapter, and the allegations of the petition are true, the court shall, by order duly entered of record, direct that the question of the organization of the district shall be submitted to the qualified electors of the district.
Such election shall be held in conformity with the general election in this state, including chapter 14, title 34, Idaho Code, except that the court shall establish as many election precincts within such proposed district as are deemed necessary, and shall define the boundaries thereof, which precincts and boundaries may thereafter be changed by the county commissioners if the district is organized.
At any time after the filing of the petition herein referred to and before the day fixed for hearing, nominees for the board of directors of the district may be nominated by the filing of a petition designating the name or names of the nominee or nominees, signed by at least five (5) qualified electors of the district. If upon the hearing as herein provided the court shall order an election for the creation of the district, the court shall also ascertain the names of persons nominated by the board of directors, and shall order that the names of persons whom the court finds to have been properly nominated shall be listed upon a ballot submitted to the electors at such election. In the event the court makes its order providing for such election, it shall prescribe the form of the question and ballot relating to the creation of the district, and also the form of the ballot relating to the election of the directors; provided that all matters may be contained upon one (1) ballot to be submitted to the voters.
At such election the voters shall vote for or against the organization of the district, and for five (5) qualified electors, who shall constitute the board of directors of the district, if organized, one (1) director to act until the first biennial election, two (2) until the second, and two (2) until the third biennial election.
The judges of election shall certify the returns of the election to the district court having jurisdiction. If a majority of the votes cast at said election are in favor of the organization, the district court shall declare the district organized and give it a corporate name by which, in all proceedings, it shall thereafter be known, and designated the first board of directors elected, and thereupon the district shall be a governmental subdivision of the state of Idaho and a body corporate with all the powers of a public or quasi-municipal corporation.
If an order be entered establishing the district, such order shall be deemed final and no appeal or writ of error shall lie therefrom, and the entry of such order shall finally and conclusively establish the regular organization of the said district against all persons except the state of Idaho, in an action in the nature of a writ of quo warranto, commenced by the attorney general within thirty (30) days after said decree declaring such district organized as herein provided, and not otherwise. The organization of said district shall not be directly or collaterally questioned in any suit, action or proceeding except as herein expressly authorized.
[42-3207, added 1947, ch. 152, sec. 7, p. 364; am. 1955, ch. 63, sec. 2, p. 122; am. 1957, ch. 29, sec. 2, p. 40; 1967, ch. 186, sec. 1, p. 613; am. 1995, ch. 118, sec. 65, p. 480; am. 2010, ch. 185, sec. 14, p. 389.]
Whenever a district has been declared duly organized, the members of the board shall qualify by filing with the clerk of court their oaths of office, and corporate surety bonds at the expense of the district in an amount not to exceed $1,000 each, the form thereof to be fixed and approved by the court, conditioned for the faithful performance of their duties as directors.
[42-3208, added 1947, ch. 152, sec. 8, p. 364.]
After taking oath and filing bonds, the board shall choose one (1) of its members as chairman of the board and president of the district and shall elect a secretary and a treasurer of the board and of the district, who may or may not be members of the board. The secretary and the treasurer may be one person. Such board shall adopt a seal and the secretary shall keep, in a well-bound book, a record of all its proceedings, minutes of all meetings, certificates, contracts, bonds given by employees and all corporate acts, which shall be open to inspection of all owners of real property in the district as well as to all other interested parties.
The treasurer shall keep strict and accurate accounts of all money received by and disbursed for and on behalf of the district in permanent records. He shall file with the clerk of the court, at the expense of the district, a corporate fidelity bond in an amount not less than five thousand dollars ($5,000), conditioned on the faithful performance of the duties of his office.
Each member of the board shall receive as compensation for his service a sum not in excess of one hundred fifty dollars ($150) per meeting, payable monthly. No member of the board shall receive any compensation as an employee of the district or otherwise, other than that herein provided, and no member of the board shall be interested in any contract or transaction with the district except in his official representative capacity.
It shall be the duty of the board of directors to cause an audit to be made of all financial affairs of the district during each year ending November 30 as required in section 67-450B, Idaho Code.
The court having jurisdiction of the district shall have the power to remove directors for cause shown, on petition, notice and hearing.
[42-3209, added 1947, ch. 152, sec. 9, p. 364; am. 1965, ch. 191, sec. 1, p. 399; am. 1977, ch. 7, sec. 1, p. 14; am. 1993, ch. 44, sec. 1, p. 116; am. 1993, ch. 387, sec. 13, p. 1431; am. 2003, ch. 36, sec. 1, p. 156; am. 2022, ch. 16, sec. 1, p. 35.]
The board shall meet regularly once each month at a time and in a place to be designated by the board. Special meetings may be held as often as the needs of the district require, on notice to each member of the board. Three (3) members of the board shall constitute a quorum at any meeting. Any vacancy on the board shall be filled by the remaining members or member of the board, the appointee to act until the next biennial election when the vacancy shall be filled by election. If the board shall fail, neglect or refuse to fill any vacancy within thirty (30) days after the same occurs, the court having jurisdiction shall fill such vacancy. In the event the board has created director zones and is unable to appoint a board member from the zone vacated, the board may appoint a person-at-large who is an elector of the water and/or sewer district to serve as director of the zone where the vacancy occurred.
[42-3210, added 1947, ch. 152, sec. 10, p. 364; am. 2016, ch. 278, sec. 2, p. 767.]
(1) On the third Tuesday in May, in the first odd-numbered year after the organization of any district, and on the third Tuesday in May every second year thereafter an election shall be held, which shall be known as the biennial election of the district. Such election shall be held and conducted consistent with the provisions of chapter 14, title 34, Idaho Code.
(2) In districts created under section 42-3202B, Idaho Code, biennial elections shall be held on the third Tuesday in May.
(3) At the first biennial election in any district hereafter organized, and each sixth year thereafter, there shall be elected by the qualified electors of the district, one (1) member of the board to serve for a term of six (6) years; at the second biennial election and each sixth year thereafter, there shall be elected two (2) members of the board to serve for terms of six (6) years, and at the third biennial election, and each sixth year thereafter, there shall be elected two (2) members of the board to serve for terms of six (6) years.
In any election for director, if after the deadline for filing a declaration of intent as a write-in candidate, it appears that the number of qualified candidates who have been nominated is equal to the number of directors to be elected, it shall not be necessary for the candidates to stand for election, and the board of directors shall declare such candidates elected as directors, and the secretary of the district shall immediately make and deliver to such persons certificates of election signed by him and bearing the seal of the district.
[42-3211, added 1947, ch. 152, sec. 11, p. 364; am. 1957, ch. 29, sec. 3, p. 40; am. 1980, ch. 257, sec. 1, p. 670; am. 1995, ch. 118, sec. 66, p. 482; am. 2009, ch. 341, sec. 100, p. 1048; am. 2010, ch. 185, sec. 15, p. 391; am. 2011, ch. 11, sec. 24, p. 36.]
Any person serving as a board member for a recreational water district, recreational sewer district or a recreational water and sewer district, whose term of office would, after the effective date of this act, expire in January shall continue to serve until the following July election, and all subsequently elected board members shall serve terms of office beginning and ending in July.
[42-3211a, added 1980, ch. 257, sec. 3, p. 670.]
Subsequent to the creation of a water and/or sewer district and the election of the first board of directors, the water and/or sewer district board of directors may elect, by resolution, to divide the district into five (5) director zones, as nearly equal in area and parcels to be served as practicable, to be known as zones one, two, three, four and five. If the board of directors elects to create director zones, then it shall also, prior to the next district election, adopt a director election transition schedule for each zone, in accordance with the terms of office of the existing directors, which provides that at the end of the last then-currently serving director term, there will not be more than one (1) director per director zone.
(1) In the event the board of directors establishes director zones, each water and/or sewer district director shall be elected on a districtwide basis.
(2) Director zones may be revised or modified by the board of directors as conditions governing their establishment change.
[42-3211b, added 2016, ch. 278, sec. 3, p. 767.]
For and on behalf of the district the board shall have the following powers:
(a) To have perpetual existence;
(b) To have and use a corporate seal;
(c) To sue and be sued, and be a party to suits, actions and proceedings;
(d) Except as otherwise provided in this chapter, to enter into contracts and agreements, cooperative and otherwise, affecting the affairs of the district, including contracts with the United States of America and any of its agencies or instrumentalities, and contracts with corporations, public or private, municipalities, or governmental subdivisions, and to cooperate with any one (1) or more of them in building, erecting or constructing works, canals, pipelines, sewage treatment plants, and other facilities within or without the district. Except in cases in which a district will receive aid from a governmental agency, procurement of goods or services shall be in accordance with the provisions of chapter 28, title 67, Idaho Code;
(e) To borrow money and incur indebtedness and evidence the same by certificate, notes or debentures, and to issue bonds, in accordance with the provisions of this chapter;
(f) To acquire, dispose of and encumber real and personal property, water, water rights, water and sewage systems and plants, and any interest therein, including leases and easements within or without said district;
(g) To refund any bonded indebtedness of the district without an election; provided, however, that the obligations of the district shall not be increased by any refund of bonded indebtedness. Otherwise, the terms and conditions of refunding bonds shall be substantially the same as those of an original issue of bonds;
(h) To have the management, control and supervision of all the business and affairs of the district, and the construction, installation, operation and maintenance of district improvements therein or therefor;
(i) To hire and retain agents, employees, engineers and attorneys;
(j) To have and exercise the power of eminent domain in the manner provided by law for the condemnation of private property for public use to take any property necessary to the exercise of the powers herein granted, both within and without the district;
(k) To construct and maintain works and establish and maintain facilities across or along any public street or highway, and in, upon, or over any vacant public lands, which public lands are now, or may become, the property of the state of Idaho, and to construct works and establish and maintain facilities across any stream of water or watercourse, and to maintain access to facilities and works by the removal of snow from roads and lands; provided, however, that the district shall promptly restore any such street or highway to its former state of usefulness as nearly as may be, and shall not use the same in such manner as to completely or unnecessarily impair the usefulness thereof;
(l) To fix and from time to time to increase or decrease water and sewer rates, tolls or charges for services or facilities furnished by the district, and to pledge such revenue for the payment of any indebtedness of the district. The board shall fix rates, tolls and charges and the time or times for the payment thereof. All such rates, tolls and charges not paid within thirty (30) days after the date fixed for the payment thereof shall become delinquent; the board shall certify all such delinquent rates, tolls and charges to the tax collector of the county by the district, not later than the first day of August and shall be, by said tax collector, placed upon the tax roll and collected in the same manner and subject to the same penalties as other district taxes; provided, however, that special assessments certified to the tax collector which are placed on property qualifying for a hardship exemption may be returned to the taxing district from which they originated if the special assessments are not paid within three (3) years. The date of priority of such lien shall be the date upon which such charge becomes delinquent. The board shall shut off or discontinue service for delinquencies in the payment of such rates, tolls or charges, or in the payment of taxes levied pursuant to this chapter, and prescribe and enforce rules and regulations for the connection with and the disconnection from properties of the facilities of the district. For health and sanitary purposes the board shall have the power to compel the owners of inhabited property within a sewer district to connect their property with the sewer system of such district, and upon a failure so to connect within sixty (60) days after written notice by the board so to do the board may cause such connection to be made and a lien to be filed against the property for the expense incurred in making such connection, provided, however, that no owner shall be compelled to connect his property with such system unless a service line is brought, by the district, to a point within two hundred (200) feet of his dwelling place;
(m) To adopt and amend bylaws not in conflict with the constitution and laws of the state for carrying on the business, objects and affairs of the board and of the district;
(n) To have and exercise all rights and powers necessary or incidental to or implied from the specific powers granted herein. Such specific powers shall not be considered as a limitation upon any power necessary or appropriate to carry out the purposes and intent of this chapter.
[42-3212, added 1947, ch. 152, sec. 12, p. 364; am. 1961, ch. 135, sec. 1, p. 195; am. 1980, ch. 13, sec. 1, p. 26; am. 1991, ch. 41, sec. 1, p. 80; am. 2003, ch. 272, sec. 1, p. 726; am. 2005, ch. 213, sec. 11, p. 646.]
In addition to the other means providing revenue for such districts as herein provided, the board shall have power and authority to levy and collect ad valorem taxes on and against all taxable property within the district.
[42-3213, added 1947, ch. 152, sec. 13, p. 364.]
To levy and collect taxes as herein provided, the board shall, in each year, determine the amount of money necessary to be raised by taxation, taking into consideration other sources of revenue of the district, and shall fix a rate of levy which, when levied upon every dollar of assessed valuation of taxable property within the district, and with other revenues will raise the amount required by the district annually, to supply funds for paying expenses of organization and the costs of construction, operating and maintaining the works and equipment of the district, and promptly to pay in full, when due, all interest on the principal of bonds and other obligations of the district, and in the event of accruing defaults or deficiencies, an additional levy may be made as provided in section 42-3215. The board shall, on or before the first day of September of each year, certify to the board of county commissioners of each county within the district, or having a portion of its territory within the district, the rate so fixed with directions that at the time and in the manner required by law for levying taxes for county purposes, such board of county commissioners shall levy such tax upon the assessed valuation of all taxable property within the district, in addition to such other taxes as may be levied by such board of county commissioners at the rate so fixed and determined.
[42-3214, added 1947, ch. 152, sec. 14, p. 364.]
The board in certifying annual levies as herein provided, shall take into account the maturing indebtedness for the ensuing year as provided in its contracts, maturing bonds and interest on bonds, and deficiencies and defaults of prior years, and shall make ample provision for the payment thereof. In case the moneys produced from such levies, together with other revenues of the district are not sufficient punctually to pay the annual instalments on its contracts or bonds, and interest thereon, and to pay defaults and deficiencies, then the board shall make such additional levies of taxes as may be necessary for such purposes, and notwithstanding any limitations, such taxes shall be made and continue to be levied until the indebtedness of the district shall be fully paid.
[42-3215, added 1947, ch. 152, sec. 15, p. 364; am. 1980, ch. 136, sec. 3, p. 298; am. 1996, ch. 322, sec. 37, p. 1066.]
It shall be the duty of the body having authority to levy taxes within each county, to levy the taxes provided in this act and it shall be the duty of all officials charged with the duty of collecting taxes to collect such taxes at the time and in the form and manner and with like interest and penalties as other taxes are collected and when collected to pay the same to the district ordering its levy and collection, and the payment of such collections shall be made monthly to the treasurer of the district and paid into the depository thereof to the credit of the district.
[42-3216, added 1947, ch. 152, sec. 16, p. 364.]
Whenever any indebtedness has been incurred by a district, it shall be lawful for the board to levy taxes and collect revenue for the purpose of creating a sinking fund in such amount sufficient to meet the payments of principal and interest on such indebtedness as the same matures, and to constitute a sinking fund for the payment of the principal amount of the indebtedness within thirty (30) years from the time of contracting the indebtedness evidenced thereby and in accordance with the provisions made for the payment of the principal and interest of such indebtedness and also to constitute a sinking fund for payment of the principal thereof, and theretofore provided by resolution pursuant to section 42-3222, Idaho Code, and as required by the constitution and laws of the state of Idaho.
[42-3217, added 1947, ch. 152, sec. 17, p. 364; am. 1980, ch. 136, sec. 4, p. 298; am. 1985, ch. 38, sec. 1, p. 80; am. 1996, ch. 322, sec. 38, p. 1066.]
The boundaries of any district organized under the provisions of this chapter may be changed in the manner herein prescribed, but the change of boundaries of the district shall not impair or affect its organization or its rights in or to property, or any of its rights or privileges whatsoever; nor shall it affect or impair or discharge any contract, obligation, lien or charge for or upon which it might be liable or chargeable had any such change of boundaries not been made.
(a) The owners of real property may file with the board a petition, in writing, praying that such real property be included in the district. The petition shall describe the property owned by the petitioners, and such petition shall be deemed to give assent of the petitioners to the inclusion in said district of the property described in the petition, and shall be accompanied by a reasonable filing fee in an amount to be determined by the board. Such petition must be acknowledged in the same manner that conveyances of land are required to be acknowledged. The secretary of the board shall cause notice of filing of such petition to be given and published in the county in which the property is situated, which notice shall state the filing of such petition, names of petitioners, descriptions of lands mentioned and the prayer of such petitioners; giving notice to all persons interested to appear at the office of the board at the time named in said notice and show cause in writing, if any they have, why the petition should not be granted. The board shall at the time and place mentioned or at such time or times to which the hearing may be adjourned, proceed to hear the petition and all objections thereto, presented, in writing, by any person showing cause why said petition should not be granted. The failure of any person to show cause in writing shall be deemed as an assent on his part to the inclusion of such lands in the district as prayed in the petition. If the petition is granted, the board shall make an order to that effect and, upon approval of said order, the property shall be included in the district.
(b) The territory adjoining or in close proximity to and in the same county with any district created under the provisions of this chapter may be annexed to the district by either of the following procedures: (1) A petition for annexation of real property described in such petition, which has been signed by the owners of not less than sixty percent (60%) of the area in land within the territory to be annexed, and which contains the separate property descriptions of such petitioners, and which is acknowledged in the same manner that conveyances of land are required to be acknowledged, accompanied by a reasonable filing fee in an amount to be determined by the board, may be filed with the board. Upon filing with the board of such a petition, the secretary of the board shall cause notice of filing of such petition to be given and published in the county in which the property is situated, which notice shall state the filing of such petition, names of petitioners, descriptions of lands mentioned and the prayer of such petitioners; giving notice to all persons interested, including the staff and employees of said district and anyone designated by said district, to appear at the office of the board at the time named in said notice and show cause in writing, if any they have, why the petition should not be granted. The board shall at the time and place mentioned or at such time or times to which the hearing may be adjourned, proceed to hear the petition and all objections thereto, presented, in writing, by any person showing cause why said petition shall not be granted. The failure of any person to show cause in writing shall be deemed as an assent to the annexation of such lands into the district as prayed in the petition. The board shall have full discretion to determine if the petition shall be granted. If the petition is granted, the board shall make an order to that effect. (2) Upon filing with the board of a petition signed by registered voters owning real property residing in the territory to be annexed, who constitute at least twenty percent (20%) of the taxpayers in such territory, praying for an election to determine if annexation shall be made of property designated in such petition, together with payment of a reasonable filing fee in an amount to be determined by the board, the board shall cause notice of filing of such petition to be given and published in the county in which the property is situated, which notice shall state the filing of such petition, names of petitioners, descriptions of lands to be annexed and the prayer of such petition; giving notice to all persons interested, including the staff and employees of said district and anyone designated by said district to appear at the office of the board at the time named in said notice and show cause in writing, if any they have, why the petition shall not be granted. The board shall at the time and place mentioned or at such time or times to which the hearing may be adjourned, proceed to hear the petition and all objections thereto, presented, in writing, by any person showing cause why said petition shall not be granted. The board shall have full discretion to determine if the petition shall be granted, and if such petition is granted, the board shall direct that an election be held, subject to the provisions of section 34-106, Idaho Code. The election shall be conducted in the same manner as general elections in this state, except that the board shall establish as many voting places within such territory proposed to be annexed as are by the board deemed necessary and shall define the boundaries of such voting places. The board shall appoint three (3) judges of election for each voting place, one (1) of whom shall be designated by the board to be the clerk of such election precinct. Each elector shall be registered as required by the general election laws and shall have resided within the area to be annexed for thirty (30) days.
The secretary of the board of directors shall publish notice of the time and place of such election, in accordance with the provisions of section 34-1406, Idaho Code. The notice shall particularly describe the property to be annexed, the name of the district to which the territory is proposed to be annexed, and the terms and conditions prescribed by the board under which the property may be annexed. The notice shall designate the places in the territory where the election will be held, and shall require the voters to cast ballots which shall contain the words:
For annexation to …. District.
Against annexation to …. District.
The judges of the election shall make their return thereof to the board of directors of the district, which shall canvass the returns and render a statement of the results of the election on the records of the board. If the majority of the votes cast favor annexation, the board shall enter an order annexing the property described in the notice of election and the territory shall thereupon become annexed to the district and shall thenceforth be a part of the district.
(c) In all proceedings for inclusion or annexation hereunder, the board shall have the power to prescribe terms and conditions under which said property may be included in the district, including the condition that such property may only be annexed or included within the district if the property is also established as a water or sewer subdistrict of the district, pursuant to sections 42-3218A through 42-3218D, Idaho Code, and may be required to pay the district its pro rata share of construction costs theretofore incurred by the district pursuant to any bond issue theretofore made or otherwise; provided, however, that such terms and conditions shall be announced by the board at or before the hearing to be held pursuant to subparagraphs (a) and (b) above. Within ten (10) days of the announcement of the terms and conditions under which the property may be included the majority of the petitioners filing petitions under the provisions of subparagraphs (a) or (b) may withdraw their petitions, and no further proceedings shall thereafter be had by the board upon such petitions.
(d) All public streets, roads, highways or alleys upon or within which is situated any part of the operative system or equipment of the district and all public streets, roads, highways and alleys which abut against or touch property annexed or to be annexed to the district, to the extent they abut against or touch such property and are not included in a different district, shall be deemed to be included in the district as a part of the annexation and shall be included in the legal description and map which the district must file in the offices of the county assessor, county recorder and the state tax commission as required by section 63-215, Idaho Code; provided, however, that upon application by the district to the state tax commission, if the commission finds after consultation with the county assessor and the county recorder that exemption from the requirements of this subparagraph (d) will not unduly burden state and local tax administration, the commission by order may exempt the district from the requirements of this subparagraph (d), but the district shall be required to comply with section 63-215, Idaho Code.
[42-3218, added 1947, ch. 152, sec. 18, p. 364, am. 1957, ch. 29, sec. 4, p. 40; am. 1969, ch. 274, sec. 1, p. 816; am. 1973, ch. 110, sec. 1, p. 196; am. 1975, ch. 28. sec. 1, p. 43; am. 1988, ch. 215, sec. 2, p. 407; am. 1995, ch. 118, sec. 67, p. 483; am. 1996, ch. 322, sec. 39, p. 1067; am. 2006, ch. 167, sec. 1, p. 515.]
The board of directors of any water or sewer district organized under the provisions of chapter 32, title 42, Idaho Code, may at any time, on their own motion, call an election to submit to the qualified electors of a proposed water or sewer subdistrict the question of the creation of a water or sewer subdistrict. The election shall be called, held, and conducted pursuant to the provisions of chapter 32, title 42, Idaho Code. The proceedings calling the election shall set forth the boundaries of the proposed water or sewer subdistrict and shall provide for the submission of the question of the creation of the water or sewer subdistrict to the qualified electors residing within the proposed boundaries of the water or sewer subdistrict. No proposition for the creation of a water or sewer subdistrict shall be determined to have carried unless the proposition shall receive a majority of the votes cast. Whenever the creation of more than one (1) water or sewer subdistrict is submitted at the same election, separate ballots and separate propositions shall be used in voting on the question of creating each water or sewer subdistrict.
[42-3218A, added 1988, ch. 215, sec. 1, p. 406; am. 1996, ch. 73, sec. 1, p. 237.]
Whenever a proposition for the creation of a water or sewer subdistrict shall have been approved in the manner set forth in section 42-3218A, Idaho Code, the board of directors of the water or sewer district shall enter in the minutes of the board an order providing for the establishment and creation of the water or sewer subdistrict setting forth therein the legal description of the boundaries thereof, and shall designate therein a name for such water or sewer subdistrict. Within ten (10) days after the entry of the order creating a water or sewer subdistrict, the board of directors shall certify the fact of the creation of the water or sewer subdistrict to the board of county commissioners of each county in which any part of the water or sewer subdistrict is located, by the filing of a certified copy of the order of the board of directors creating and establishing the water or sewer subdistrict.
[42-3218B, added 1988, ch. 215, sec. 1, p. 406.]
Each water or sewer subdistrict created and established as provided in sections 42-3218A through 42-3218D, Idaho Code, shall be a political subdivision of the state of Idaho. The board of directors entering the order creating and establishing a water or sewer subdistrict shall be the governing body of all water or sewer subdistricts created by the board, and shall possess those powers as provided in chapter 32, title 42, Idaho Code, on behalf of the water or sewer subdistrict, including the power to order, conduct and hold all elections in water or sewer subdistricts for the purpose of incurring debt and issuing bonds pursuant to chapter 32, title 42, Idaho Code.
[42-3218C, added 1988, ch. 215, sec. 1, p. 406.]
Water or sewer subdistricts may incur debt and issue bonds for the purpose of acquiring, purchasing, or improving a water or sewer site or sites, and acquiring or constructing new water or sewer facilities. The governing body of a water or sewer subdistrict may submit to the qualified electors of the water or sewer subdistrict the question of whether the governing body of the water or sewer subdistrict shall be empowered to issue negotiable bonds of the water or sewer subdistrict in an amount and for a period of time to be named in the notice of election. Notice of the bond election shall be given, the election shall be conducted and the returns thereof canvassed and the qualifications of electors voting or offering to vote shall be as provided in chapter 32, title 42, Idaho Code.
[42-3218D, added 1988, ch. 215, sec. 1, p. 407.]
The owner or owners in fee of any real property constituting a portion of the district may file with the board a petition praying that such lands be excluded and taken from said district. Petitions shall describe the property which the petitioners desire to have excluded. Such petition must be acknowledged in the same manner and form as required in case of a conveyance of land and be accompanied by a deposit of money sufficient to pay all costs of the exclusion proceedings. The secretary of the board shall cause a notice of filing of such petition to be published in the county in which said property or the major portion thereof, is located. The notice shall state the filing of such petition, the names of petitioners, description of the property mentioned in said petition, and the prayer of said petitioners; and it shall notify all persons interested to appear at the office of said board at the time named in said notice, showing cause in writing, if any they have, why said petition should not be granted. The board at the time and place mentioned in the notice, or at the time or times at which the hearing of said petition may be adjourned, shall proceed to hear the petition and all objections thereto, presented in writing by any person showing cause as aforesaid, why the prayer of the petition should not be granted. The filing of such petition shall be deemed and taken as an assent by each and all such petitioners to the exclusion from the district of the property mentioned in the petition, or any part thereof. The board, if it deems it not for the best interests of the district that the property mentioned in the petition, or portion thereof, shall be excluded from the district, shall order that said petition be denied, but if it deems it for the best interest of the district that the property mentioned in the petition, or some portion thereof, be excluded from the district, then the board may order the property mentioned in the petition or some portion thereof, excluded from the district. Upon allowance of such petition, the board shall file a certified copy of the order of the board making such change with the clerk of the court and upon order of the court said property shall be excluded from the district.
[42-3219, added 1947, ch. 152, sec. 19, p. 364.]
Upon rejection by the district electorate of substantially the same proposal in two (2) separate elections for the creation of indebtedness for the purpose of acquisition, construction, installation or completion of any works or other improvements or facilities or the making of any contract to carry out the purposes of the district, and after denial by the board of a petition for exclusion of property filed and heard, as provided under section 42-3219, the owners in fee, or their representatives, of real property located in the district may petition the district court of the judicial district in which the majority of the property subject of said petition is located for exclusion and removal of their lands from such water and sewer district. Such petition shall be signed by not less than fifty-one per cent (51%) of the qualified electors of the area to be excluded from the district, shall include a legal description of the real property, the subject of said petition, shall be acknowledged in the same manner and form as required in case of a conveyance of land and shall be accompanied by a deposit of money sufficient to pay all costs of the exclusion and removal proceedings. The petitioners shall cause notice of filing of such petition to be filed with the district, and to be published in a newspaper of general circulation in the county in which said property, or the major portion thereof, is located, once a week for three (3) consecutive weeks. Such notice shall state the date of filing of such petition and the names of the petitioners, shall include a legal description of the property mentioned in said petition, shall set forth the prayer of said petitioners, and shall notify all persons interested to appear at the deisgnated court at the time stated in said notice, showing cause in writing, if any they have, why said petition should not be granted. At any time before the expiration of the time of publication, any person may file his objections to said petition. At the time and place designated in the notice, or at the time or times at which the hearing of said petition may be adjourned, the court shall proceed to hear the petition and all objections thereto presented in writing by any person showing cause as aforesaid.
The court shall grant such petition upon finding that said proposals for the creation of indebtedness were twice rejected by the electors of the whole district, and upon the finding that said real property so designated by the petition for exclusion and removal forms a contiguous area and either has no need for water and sewage disposal services or reasonably constitutes a separate area for purposes of water and sewage disposal services.
The granting of such petition by the court and the exclusion of such property from the district shall not relieve such property from paying any bond indebtedness of the district existing at the time of said exclusion order against any such property so excluded, nor shall the granting of said petition and exclusion of such property relieve such property of any levy for the support of said district for the year in which it is removed.
[42-3219A, as added by 1967, ch. 242, sec. 1, p. 705.]
The board of directors of the district may, upon rejection by the district electorate of substantially the same proposal in two (2) separate elections (whether held prior to or after enactment of this section) for the creation of indebtedness for the purpose of acquisition, construction, installation or completion of any works or other improvement or facilities or the making of any contract to carry out the purposes of the district, petition the district court of the judicial district in which the majority of the property subject of the petition is located for exclusion and removal of lands from such water and sewer district. Such petition shall include a general description of the boundaries of the area to be excluded from the district with such certainty as to enable a property owner to determine whether or not his property is within the area to be excluded and shall be verified. The board of directors of the district, as petitioners, shall cause notice of filing of such petition to be published in a newspaper of general circulation in the county in which said property, or the major portion thereof is located, once a week for three (3) consecutive weeks. Such notice shall state the date of filing of such petition, shall include a description of the boundaries of the area to be excluded from the district with such certainty as to enable a property owner to determine whether or not his property is within the area to be excluded, and shall notify all persons interested to appear at the designated court at the time stated in said notice, showing cause in writing, if any they have, why said petition should not be granted. At any time before the expiration of the time of publication, any person may file his objection to said petition. At the time and place designated in the notice, or at the time or times at which the hearing of said petition may be adjourned, the court shall proceed to hear the petition and all objections thereto presented in writing by any person showing cause as aforesaid.
The court shall grant such petition upon finding that said proposals for the creation of indebtedness were twice rejected by the electors of the whole district, and upon the finding that said area so designated by the petition for exclusion and removal forms a contiguous area and either has no need for water or sewage disposal services or reasonably constitutes a separate area for purposes of water and sewage disposal services; or is of such location and character that water or sewage disposal services cannot be furnished to it by such water and sewer district at reasonable cost and that the withdrawal of such area will be conducive to the general welfare of the balance of the district.
The granting of such petition by the court and such exclusion of said property from the district shall not relieve such property from paying any bond indebtedness of the district existing at the time of said exclusion order against any such property so excluded, nor shall the granting of such petition and exclusion of such property relieve such property of any levy for the support of said district for the year in which it is removed.
The procedure for the exclusion and removal of lands from a water and sewer district as provided in this section shall be an alternative to the procedures provided in sections 42-3219 and 42-3219A, Idaho Code.
[42-3219B, as added by 1971, ch. 60, sec. 1, p. 35.]
All real property included within, or excluded from, a district shall thereafter be subject to the levy of taxes for the payment of any indebtedness of the district outstanding at the time of inclusion or exclusion.
[42-3220, added 1947, ch. 152, sec. 20, p. 364.]
To carry out the purposes of this act, and to pay the necessary and ordinary expenses of the district, the board is hereby authorized to issue negotiable coupon bonds of the district. Bonds shall bear interest, payable semi-annually, and shall be due and payable serially, either annually or semi-annually, commencing not later than three (3) years and extending not more than thirty (30) years from date. The form and terms of said bonds, including provisions for their payment and redemption, shall be determined by the board. If the board so determines, such bonds may be redeemable prior to maturity upon payment of a premium, not exceeding three per centum (3%) of the principal thereof. Said bonds shall be executed in the name of and on behalf of the district and signed by the chairman of the board with the seal of the district affixed thereto and attested by the secretary of the board. Said bonds shall be in such denominations as the board shall determine and the bonds and coupons thereto attached shall be payable to bearer. Interest coupons shall bear the original or facsimile signature of the chairman of the board.
[42-3221, added 1947, ch. 152, sec. 21, p. 364; am. 1955, ch. 63, sec. 3, p. 122; 1965, ch. 140, sec. 1, p. 274; am. 1970, ch. 133, sec. 7, p. 309.]
Whenever any board shall, by resolution, determine that the interest of said district and the public interest or necessity demand the acquisition, construction, installation or completion of any works or other improvements or facilities, or the making of any contract with the United States or other persons or corporations, public or private, municipalities, or governmental subdivisions, to carry out the objects or purposes of said district, requiring the creation of an indebtedness that will exceed the income and revenue provided for the year, said board shall order the submission of the proposition of issuing such obligations or bonds, or creating other indebtedness to the qualified electors of the district at an election held, subject to the provisions of section 34-106, Idaho Code, for that purpose. The declaration of public interest or necessity herein required and the provision for the holding of such election may be included within one and the same resolution, which resolution, in addition to such declaration of public interest or necessity, shall recite the objects and purposes for which the indebtedness is proposed to be incurred, the estimated cost of the works or improvements, as the case may be, the amount of principal of the indebtedness to be incurred therefor, and the maximum rate of interest to be paid on such indebtedness. Such resolution shall also fix the date upon which such election shall be held and the manner of holding the same and the method of voting for or against the incurring of the proposed indebtedness. Such resolution shall also fix the compensation to be paid the officers of the election and shall designate the polling place or places and shall appoint, for each polling place from the electors of the district, the officers of such election consisting of three (3) judges, one (1) of whom shall act as clerk.
[42-3222, added 1947, ch. 152, sec. 22, p. 364; am. 1957, ch. 29, sec. 5, p. 40; am. 1971, ch. 25, sec. 6, p. 61; am. 1992, ch. 151, sec. 1, p. 457; am. 1995, ch. 118, sec. 68, p. 486.]
The board shall prescribe the form of the notice of election, and direct the publication of the same in accordance with the provisions of sections 34-1405 and 34-1406, Idaho Code.
[42-3223, added 1947, ch. 152, sec. 23, p. 364; am. 1995, ch. 118, sec. 69, p. 487.]
The election board or boards shall conduct the election in the manner prescribed by law for the holding of general elections, including chapter 14, title 34, Idaho Code, and shall make their returns to the secretary of the district, provided that precincts shall be as provided in section 42-3207, Idaho Code. At any regular or special meeting of the board held within ten (10) days following the date of such election, the returns thereof shall be canvassed and the results thereof declared.
[42-3224, added 1947, ch. 152, sec. 24, p. 364; am. 1967, ch. 186, sec. 2, p. 613; am. 1995, ch. 118, sec. 70, p. 487.]
In the event that it shall appear from said returns that two-thirds (2/3) of said qualified electors who are taxpayers of the district who shall have voted on any proposition submitted hereunder at such election voted in favor of such proposition, the district shall thereupon be authorized to incur such indebtedness or obligations, enter into such contract or issue and sell such bonds of the district, as the case may be, all for the purpose or purposes and object or objects provided for in the proposition submitted hereunder and in the resolution therefor, and in the amount so provided and at a rate of interest not exceeding the rate of interest recited in such resolution. Submission of the proposition of incurring such obligation or bonded or other indebtedness at such an election shall not prevent or prohibit submission of the same or other propositions at subsequent election or elections called for such purpose.
[42-3225, added 1947, ch. 152, sec. 25, p. 364.]
In any and every case where a notice is provided for in this act, if the court finds for any reason that due notice was not given, the court shall not thereby lose jurisdiction, and the proceeding in question shall not thereby be void or be abated, but the court shall in that case order due notice to be given, and shall continue the hearing until such time as notice shall be properly given, and thereupon shall proceed as though notice has been properly given in the first instance.
[42-3226, added 1947, ch. 152, sec. 26, p. 364.]
If it should be judicially determined that any part of this act is invalid or unenforcible, such determination shall not affect the remaining parts, it being the intention to make this act and all its parts severable.
[42-3227, added 1947, ch. 152, sec. 27, p. 364.]
A board shall adopt a budget and shall cause a public hearing to be held upon such budget, prior to certifying a tax levy to the board of county commissioners of each county within the district, or having a portion of its territory within the district.
[42-3228, as added by 1973, ch. 84, sec. 1, p. 134.]
Notice of the budget hearing meeting shall be posted at least ten (10) full days prior to the date of said meeting in at least one (1) conspicuous place in each water and sewer district to be determined by the board; a copy of such notice shall also be published in a daily or weekly newspaper published within such water and sewer district, in one (1) issue thereof, during such ten (10) day period. The place, hour and day of such hearing shall be specified in said notice, as well as the place where such budget may be examined prior to such hearing. A full and complete copy of such proposed budget shall be published with and as a part of the publication of such notice of hearing.
[42-3229, as added by 1973, ch. 84, sec. 2, p. 134.]
Such budget shall be available for public inspection from and after the date of the posting of notices of hearing as in this act provided, at such place and during such business hours as the board may direct.
[42-3230, as added by 1973, ch. 84, sec. 3, p. 134.]
A quorum of the board shall attend such hearing and explain the proposed budget and hear any and all objections thereto.
[42-3231, as added by 1973, ch. 84, sec. 4, p. 134.]
(1) All acts and proceedings heretofore taken pursuant to chapter 32, title 42, Idaho Code, for the organization of the district, the elections incidental thereto, the authorization, issuance, and sale of bonds of any such district, are hereby confirmed, validated and declared legally effective, including all acts and proceedings of any person, public officer, board or agency heretofore done or taken upon the question of the authorization, issuance, sale or exchange of such bonds authorized to be issued under such statutes, notwithstanding any lack of power, authority or otherwise, and notwithstanding any defects and irregularities in the creation of such public body, including all election procedures incidental thereto, and in such public securities, acts and proceedings, and in such authorization, execution, sale, issuance and payment.
(2) The provisions of this section shall not operate to confirm, validate or legalize any action or proceedings, the legality of which is being contested or inquired into any legal proceeding now pending and undetermined and shall not operate to confirm, validate or legalize any action or proceedings which has heretofore been determined in any legal proceeding to be illegal, void or ineffective.
(3) Any action or proceeding contesting the validity of any action or proceeding referred to in subsection (1) of this section shall be brought within thirty (30) days from the effective date of this act.
(4) This act shall operate to supply such legislative authority as may be necessary to validate any public securities heretofore issued and any such acts and proceedings heretofore taken which the legislature could have supplied or provided for in the law under which such public securities were issued and such acts or proceedings were taken.
[42-3232, added 1979, ch. 272, sec. 3, p. 708.]
Two (2) or more water and/or sewer districts may vote to merge upon such terms as the districts may agree. In order to bring the matter to a vote, each board of directors, by majority vote, must independently vote to call an election for a vote to merge.
[42-3233, added 1982, ch. 88, sec. 1, p. 163.]
If all boards of directors of districts proposing to merge call for the election, each district shall independently hold an election, subject to the provisions of section 34-106, Idaho Code, and if more than a majority of those voting in each election favor the merger, the merger shall occur.
[42-3234, added 1982, ch. 88, sec. 1, p. 163; am. 1995, ch. 118, sec. 71, p. 487.]
Qualifications for and methods of voting, conduct of the election and canvass of the returns shall be the same as provided for the election of a director.
[42-3235, added 1982, ch. 88, sec. 1, p. 163.]
Each ballot shall have attached to it a summary of the terms of the merger, and the ballot issue shall read:
Shall ……………………and …………………sewer and/or water districts merge into one sewer and/or water district to be known as ……………………….on the summary of terms outlined.
(PLACE AN "X" IN THE BOX REFLECTING YOUR CHOICE.)
[42-3236, added 1982, ch. 88, sec. 1, p. 163.]
In the event all districts voting on the issue pass the same, each board shall certify the results of the election to the district court in which most of the territory of the merged district will be. Upon satisfying itself that the election proceedings were proper in each district, the court shall enter an order creating the merged district under the terms presented to the voters. The court shall also select five (5) directors for the newly merged district from among the directors of the constituent districts recommended for such positions and shall set their terms of office.
[42-3237, added 1982, ch. 88, sec. 1, p. 164.]
Notwithstanding any other provision of law, no water district, sewer district or water and sewer district shall levy or collect any tax, any fee or any other charge of any kind related in any way to the collection or treatment of sewage by such district against any property located in such district which property is served by a private community sewer system. Said properties shall be exempt from any such tax, fee or charge. A "private community sewer system" means a system which collects and processes sewage for ten (10) or more residences, commercial or industrial facilities. The exemption provided in this section shall not apply to residences, commercial or industrial facilities served by an individual septic system. Nothing contained herein shall prohibit a charge for the delivery or furnishing of water by such district.
[42-3238, added 1991, ch. 263, sec. 1, p. 653.]
(1) A water, sewer, or combined water and sewer district may transfer to a municipality the assets of the district and dissolve upon a determination that each of the following conditions exists:
(a) The municipality is capable of providing all the essential functions of the district;
(b) The municipality has agreed to assume and perform the essential functions of the district;
(c) The municipality either has or is acquiring sufficient assets, infrastructure, and other resources to perform the essential operations of the district;
(d) Provisions have been made for the retirement, payment or assumption of any debt, bonds, or other liabilities and obligations of the district;
(e) Provisions have been made for the liquidation and disbursement of district assets and infrastructure not intended to be transferred to the municipality; and
(f) Notice of the proposed transfer has been published once a week for two (2) consecutive weeks prior to the hearing in a newspaper of general circulation in the district, including information on the petition for an election on the proposed transfer; and
(g) An election has been held, if required pursuant to subsection (3) of this section, and the transfer has been approved by a majority of the qualified electors of the district voting on the issue.
(2) Prior to passage of a resolution making the required determination, the district board shall hold a hearing to receive public testimony on the proposed transfer. The public hearing shall be preceded by a notice published once a week for two (2) consecutive weeks preceding the hearing, in a newspaper of general circulation in the district. The notice shall state the date, time and location of the hearing and that the purpose of the hearing is to receive public testimony on the proposed transfer and the method for a petition of qualified electors of the district to be submitted requesting an election to approve the proposed transfer.
(3) After the hearing, the district board may submit the proposed transfer to the qualified electors of the district, or shall take the matter under advisement for a period of thirty (30) days after the hearing. An election shall be held if, prior to the expiration of the thirty (30) day period, a petition signed by not less than ten percent (10%) of the qualified electors of the district is submitted requesting an election on the proposed transfer. If at the end of the thirty (30) day period no petition has been submitted with the required number of signatures, the district board may proceed to adopt the resolution finding the above conditions exist and approving the transfer. An election held pursuant to the provisions of this subsection shall be conducted according to the provisions of section 34-106, Idaho Code, and the proposed transfer shall be approved by a majority of the qualified electors of the district voting on the issue in order for the district board to proceed to adopt a resolution approving the transfer.
(4) In the event the district board and the municipality adopt resolutions finding the above conditions exist and approving the transfer, the district board shall file with the district court in which the district and municipality are located, a certified copy of the district resolution; certified results of the election approving the transfer, if applicable; a certified copy of the resolution of the municipality; and all other necessary documentation requested by the district court. Upon satisfying itself that the required conditions exist, the district court shall enter an order approving the transfer and assumption and establishing the date on which the district shall be dissolved; provided however, upon good cause shown, the court may extend the date upon which the district shall be dissolved. Such order shall be recorded with the county recorder and filed with the county assessor in the counties within which the district is located and filed with the state tax commission within thirty (30) days following the effective date of such dissolution. If an agreement exists between the district and municipality setting the requirements for postdissolution operations, the municipality shall operate the sewer and/or water system(s) in accordance with the agreement.
[42-3239, added 2005, ch. 244, sec. 1, p. 762.]
Any area embraced within the limits of any city may be annexed into or withdrawn from a water and/or sewer district organized under this chapter in accordance with the following:
(1) The city council of the city and the board of directors of the water and/or sewer district approve the terms and conditions of the annexation or withdrawal by ordinance or resolution.
(a) In the event any of the area within any city, subject to annexation to or withdrawal from a water and/or sewer district is being served by an existing city or district water or sewer system, the following conditions must exist, which conditions must be stated in the city’s and the district’s ordinance or resolution:
(i) The annexing district or, upon a withdrawal, the city is capable of providing all the essential functions of the existing system;
(ii) The annexing district or, upon a withdrawal, the city has agreed to assume and perform the essential existing system functions;
(iii) The annexing district or, upon a withdrawal, the city either has or is acquiring sufficient assets, infrastructure and other resources to perform the essential operations of the existing system;
(iv) Provisions have been made for the retirement, payment or assumption of any debt, bonds or other liabilities and obligations of the existing system;
(v) Provisions have been made for the liquidation and disbursement of the existing system assets and infrastructure not intended to be transferred;
(vi) Provisions have set forth requirements for post-annexation or withdrawal operations and may also provide that the annexed area be designated as a district subdistrict and provide for director zones;
(vii) That notice of the proposed annexation or withdrawal and transfer has been published once a week for two (2) consecutive weeks preceding the hearing in a newspaper of general circulation in the city and the district, including information on filing a petition for an election on the proposed transfer; and
(viii) That an election has been held, if required pursuant to paragraph (d) of this subsection, and the transfer has been approved by a majority of the qualified electors of the district and city voting on the issue.
(b) Prior to passage of a resolution making the required determination, the city council and the district board of directors shall hold a joint hearing to receive public testimony on the proposed transfer. The joint public hearing shall be preceded by a joint notice published once a week for two (2) consecutive weeks preceding the hearing in a newspaper of general circulation in the city and the district. The notice shall state the date, time and location of the joint public hearing and that the purpose of the hearing is to receive public testimony on the proposed annexation or withdrawal, transfer and agreement of operations and the method for a petition of qualified electors of the city and the district to be submitted requesting an election to approve the proposed annexation or withdrawal, transfer and agreement of operations.
(c) After the joint public hearing, the city council and the district board of directors, by majority vote of both governing bodies, may jointly submit the proposed transfer to the qualified electors of the city and the district or shall take the matter under advisement for a period of thirty (30) days after the hearing. An election shall be held if, prior to the expiration of the thirty (30) day period, a petition signed by at least ten percent (10%) of the qualified electors of the city and/or the district is submitted requesting an election on the proposed annexation or withdrawal, transfer and agreement of operations. If at the end of the thirty (30) day period no petition has been submitted with the required number of signatures, the city council and the district board of directors may proceed to adopt a resolution or ordinance finding the above conditions exist and approving the annexation or withdrawal, transfer and agreement of operations.
(d) An election held pursuant to the provisions of this subsection shall be conducted according to the provisions of section 34-106, Idaho Code, and the proposed annexation or withdrawal, transfer and agreement of operations shall be approved by a majority of the qualified electors of the city and a majority of the qualified electors of the district voting on the issue in order for the city council and the district board of directors to proceed to adopt a resolution or ordinance approving the annexation or withdrawal, transfer and agreement of operations.
(2) In the event the city council and district board of directors approve the terms and conditions of the annexation or withdrawal, transfer and agreement of operations by ordinance or resolution, the city and district shall jointly file with the district court in which the majority of the area of the district and city are located a certified copy of the city’s ordinance or resolution and the district’s ordinance or resolution; certified results of the election approving the annexation or withdrawal, transfer and agreement of operations, if applicable; and all other necessary documentation requested by the district court. Upon satisfying itself that the required conditions of this section exist, the district court shall enter an order approving the annexation or withdrawal, transfer and agreement of operations and establish the date on which the annexation or withdrawal and transfer of assets shall occur and the effective date of the agreement of operations; provided however, upon good cause shown, the court may extend the annexation or withdrawal and transfer of assets date and the effective date of the agreement of operations. Such orders shall be recorded with the county recorder and filed with the county assessor in the counties within which the district and the city are located and filed with the state tax commission within thirty (30) days following the effective date of such annexation or withdrawal, transfer and agreement of operations.
(3) If the ordinance or resolution approved by the city and the district includes an agreement of operations setting forth the requirements for post-annexation or withdrawal system operations, the district in an annexation and the city in a withdrawal shall operate the sewer and/or water system(s) in accordance with the agreement.
(4) The provisions of this section do not apply to any petition filed with the board for the annexation of real property by landowners pursuant to section 42-3218, Idaho Code.
[42-3240, added 2016, ch. 278, sec. 4, p. 767.]
The governor of the state of Idaho is hereby authorized to appoint a commission consisting of three (3) commissioners, of which the director of the department of water resources may be one (1), and up to two (2) alternate commissioners, to represent the state of Idaho on a joint commission to be composed of commissioners representing the states of Wyoming, Utah, and Idaho, and a commissioner that may be appointed to represent the United States of America, to be constituted by said states for the purpose of negotiating and entering into a compact or compacts, agreement or agreements, between the said states, with consent of congress, respecting the lawful diversion, distribution, and the further utilization and disposition of the waters of Bear River, and all streams tributary thereto, with due regard to the priority rule controlling the use of water, and fixing and determining a method of regulation, administration and control of the waters of said river; provided, however, that any compact or agreement so entered into on behalf of said states shall not be binding or obligatory upon either of said states or citizens thereof until and unless the same shall have been ratified and approved by the legislatures of the said three (3) states and by the congress of the United States.
[42-3301, added 1943, ch. 90, sec. 1, p. 180; am. 2017, ch. 74, sec. 1, p. 187.]
As soon as the commissioners of the state of Idaho shall have been appointed and shall have entered upon the performance of their duties, as herein provided, they shall be furnished such legal, engineering and other assistants as the governor and attorney general and director of the department of water resources of the state of Idaho may deem advisable and necessary.
[42-3302, added 1943, ch. 90, sec. 2, p. 180.]
Said commissioners, or alternate commissioners in the absence of appointed commissioners, for the state of Idaho shall have authority to make full investigations of Bear River and its tributaries and the drainage area thereof, as may be necessary in order to determine the facts as to physical conditions obtaining upon said river, and of the present and future needs of the state of Idaho and its citizens, to the proper use and benefits of the waters of said stream and to perform such other duties as may be necessary to sufficiently determine such facts and to secure the necessary information in order that they may properly perform their duties as commissioners of the state of Idaho upon said joint commission.
[42-3303, added 1943, ch. 90, sec. 3, p. 180; am. 2017, ch. 74, sec. 2, p. 187.]
It shall be the duty of the director of the department of water resources of the state of Idaho, and the attorney general of said state, to aid and assist the commissioners to be appointed for the state of Idaho whenever necessary in order to facilitate their work in carrying out the intent and purposes of this act.
[42-3304, added 1943, ch. 90, sec. 4, p. 180.]
The governor of Idaho shall advise the governors of the states of Utah and Wyoming and the President of the United States of this enactment and request that reciprocal legislation be enacted by said states and that a proper resolution be adopted by the congress of the United States giving permission to the states of Idaho, Utah and Wyoming to enter into a compact or agreement respecting the control and use of the waters of Bear River and its tributaries.
[42-3305, added 1943, ch. 90, sec. 5, p. 180.]
The tenure of office of said commissioners shall be at the pleasure of the governor, and their remuneration and expenses shall be fixed by him; provided, however, that if the states of Utah and Wyoming shall appoint but one (1) commissioner to perform such services for said respective states, then and in that event, the governor of the state of Idaho may, in his discretion, reduce the number of commissioners of the state of Idaho from three (3) to one (1), who shall exercise all the rights and duties imposed by this act.
[42-3306, added 1943, ch. 90, sec. 6, p. 180.]
Authority shall be and is hereby granted unto the governor of the state of Idaho to cause a compact to be entered into by the state of Idaho, with the state of Nevada and the United States, concerning the acquiring of water rights and the distribution of water within the respective states of Idaho and Nevada from Salmon Falls Creek, the North Fork of which heads in Idaho and flows through Nevada, and the South Fork of which heads in Nevada and joins with the North Fork in Nevada, and which thence flows into Idaho where it empties into the reservoir, situated in Townships Fourteen (14) and Fifteen (15) South, Ranges Fourteen (14) and Fifteen (15) E.B.M., Twin Falls County, State of Idaho, of the Salmon River Canal Company, Ltd., a corporation organized and existing under and by virtue of the laws of the state of Idaho.
[42-3307, added 1943, ch. 44, sec. 1, p. 89.]
For the purpose of carrying this act into effect, a commissioner for the state of Idaho shall be appointed by the governor, whose term of office shall be at the pleasure of the governor, and whose remuneration shall be fixed by the governor, and whose duties shall embrace, gathering and compiling data, attending meetings of the commission of which said commissioner shall be a member, carrying on negotiations for an agreement or compact between the state of Idaho, the state of Nevada, and the United States concerning the acquiring of water rights and the distribution of water within the states of Idaho and Nevada, and to generally perform such duties as shall be required by the governor of the state of Idaho in carrying out the purpose and intent of this act.
[42-3308, added 1943, ch. 44, sec. 2, p. 89.]
The governor (a) Shall advise the executive branch of the state of Nevada and the President of the United States of the enactment of this legislation, and request that reciprocal legislation be enacted by the state of Nevada, and that proper resolution be adopted by the congress of the United States giving permission to the states of Idaho and Nevada to enter into a compact or agreement respecting the acquiring of water rights and the distribution of water in the states of Idaho and Nevada, and concerning the disposition, distribution and apportionment of the waters of Salmon Falls Creek, and its tributaries hereinabove more particularly described, between the states of Idaho and Nevada.
(b) And shall request the executive branch of the government of the state of Nevada to cause a commissioner to be appointed to carry such reciprocal legislation as may be enacted by the state of Nevada into effect. And shall request the President of the United States to cause a commissioner to be appointed, pursuant to proper resolution of congress, to whom shall be delegated such authority as shall be needed, to the end that permission shall be granted by the United States to the states of Idaho and Nevada to enter into such compact or agreement.
[42-3309, added 1943, ch. 44, sec. 3, p. 89.]
The commissioner appointed by the governor of the state of Idaho, pursuant to this act, and a commissioner who shall be appointed pursuant to legislation enacted by the state of Nevada, and a commissioner who shall be appointed by the President of the United States pursuant to resolution of the congress, shall constitute a commission for the purpose of formulating a compact or agreement concerning the acquiring of water rights and the distribution of water on said Salmon Falls Creek within the states of Idaho and Nevada.
[42-3310, added 1943, ch. 44, sec. 4, p. 89.]
Any compact or agreement negotiated under the terms of this act and reciprocal legislation of the state of Nevada and joint resolution of the congress of the United States shall become effective upon its approval and ratification by the legislature of the state of Idaho.
[42-3311, added 1943, ch. 44, sec. 5, p. 89.]
Should it be determined by the governor of the state of Idaho that a compact or agreement cannot be negotiated or carried into effect concerning the acquiring of water rights and the distribution of water within the states of Idaho and Nevada of the said Salmon Falls Creek, pursuant to the terms of this act, then and in that contingency the governor of the state of Idaho shall be, and he is hereby, authorized to direct the attorney general of the state of Idaho to institute appropriate legal proceedings on behalf of the state of Idaho against the state of Nevada in the Supreme Court of the United States, or other court or courts, to obtain an equitable apportionment and distribution between the states of Idaho and Nevada of the waters of the said Salmon Falls Creek, which said direction shall be carried into effect by the attorney general of the state of Idaho; to the end that priority rights on the stream shall be established.
[42-3312, added 1943, ch. 44, sec. 6, p. 89.]
The governor of the state of Idaho is hereby authorized to appoint a commission of ten (10) members, of which the director of the department of water resources shall be one (1), to represent the state of Idaho on a joint commission to be composed of commissioners representing the states of Wyoming and Idaho and a commissioner that may be appointed by the President of the United States, to be constituted by said states for the purpose of negotiating and entering into a compact or compacts, agreement or agreements, between the states, with the consent of congress, respecting the lawful diversion, distribution, and further utilization and disposition of the waters of the Snake River and all streams tributary thereto, with due regard to vested rights, mutual benefits and equitable apportionment, and fixing and determining a method of regulation, administration and control of the waters of said river; provided, however, that any compact or agreement so entered into on behalf of said states shall not be binding or obligatory upon either of said states or citizens thereof until and unless the same shall have been ratified and approved by the legislatures of both states and by the congress of the United States.
[42-3313, added 1949, ch. 11, sec. 1, p. 11.]
As soon as the commissioners of the state of Idaho shall have been appointed and shall have entered upon the performance of their duties, as herein provided, they shall be furnished such legal, engineering and other assistance as the governor and attorney general and director of the department of water resources and the board of examiners of the state of Idaho may deem advisable and necessary.
[42-3314, added 1949, ch. 11, sec. 2, p. 11.]
The said commissioners for the state of Idaho shall have authority to make full investigations of Snake River and its tributaries and the drainage area thereof, as may be necessary in order to determine the facts as to physical conditions obtaining upon said river, and of the present and future needs of the state of Idaho and its citizens, to the proper use and benefits of the waters of said stream and to perform such other duties as may be necessary to sufficiently determine such facts and to secure the necessary information in order that they may properly perform their duties as commissioners of the state of Idaho upon said joint commission.
[42-3315, added 1949, ch. 11, sec. 3, p. 11.]
It shall be the duty of the director of the department of water resources of the state of Idaho, and the attorney general of said state, to aid and assist the commissioners to be appointed for the state of Idaho whenever necessary in order to facilitate their work in carrying out the intent and purposes of this act.
[42-3316, added 1949, ch. 11, sec. 4, p. 11.]
The governor of Idaho shall advise the governor of the state of Wyoming and the president of the United States of this enactment and request that reciprocal legislation be enacted by said state and that a proper resolution be adopted by the congress of the United States giving permission to the states of Idaho and Wyoming to enter into a compact or agreement respecting the control of the waters of Snake River and its tributaries.
[42-3317, added 1949, ch. 11, sec. 5, p. 11.]
The tenure of office of said commissioners shall be at the pleasure of the governor, and their remuneration and expenses shall be fixed by him; provided, however, that if the state of Wyoming shall appoint but one (1) commissioner to perform such services for said state, then and in that event, the governor of the state of Idaho may, in his discretion, reduce the number of commissioners of the state of Idaho from ten (10) to one (1), who shall exercise all the rights and duties imposed in this act.
[42-3318, added 1949, ch. 11, sec. 6, p. 11.]
The governor of the state of Idaho is hereby authorized to appoint a commission of five (5) members, of which the director of the department of water resources shall be one (1), to represent the state of Idaho on a joint commission to be composed of commissioners representing the states of Washington, Oregon, Wyoming, Montana, Utah, Nevada and Idaho, and a commissioner that may be appointed by the president of the United States, to be constituted by said states for the purpose of negotiating and entering into a compact or compacts, agreement or agreements, among the states, or so many of them, not less than five (5), as shall agree thereto, with the consent of congress, respecting the lawful diversion, distribution, and further utilization and disposition of the waters of the Columbia River and all streams tributary thereto, including the Snake River, with due regard to vested rights, mutual benefits and equitable apportionment, and fixing and determining a method of regulation, administration and control of said river, and its tributaries; provided, however, that any compact or agreement so entered into on behalf of said states shall not be binding or obligatory upon any of said states or citizens thereof until and unless the same shall have been ratified and approved by the legislatures of at least five (5) of the states, including the states of Washington, Oregon, Montana and Idaho and by the congress of the United States.
[42-3319, added 1951, ch. 61, sec. 1, p. 89.]
As soon as the commissioners of the state of Idaho shall have been appointed and shall have entered upon the performance of their duties, as herein provided, they shall be furnished such legal, engineering and other assistance as the governor and attorney general and director of the department of water resources and the board of examiners of the state of Idaho might deem advisable and necessary.
[42-3320, added 1951, ch. 61, sec. 2, p. 89.]
The said commissioners for the state of Idaho shall have full authority to make full investigations of the Columbia River and its tributaries, including the Snake River, and the drainage thereof, as may be necessary in order to determine the facts as to physical conditions obtaining upon said river, and its tributaries, and of the present and future needs of the state of Idaho and its citizens, to the proper use and benefits of the waters of said river, and its tributaries, and to perform such other duties as may be necessary to sufficiently determine such facts and to secure the necessary information in order that they may properly perform their duties as commissioners of the state of Idaho upon said joint commission.
[42-3321, added 1951, ch. 61, sec. 3, p. 89.]
It shall be the duty of the director of the department of water resources of the state of Idaho, and the attorney general of said state, or whoever they may appoint, to aid and assist the commissioners to be appointed for the state of Idaho, whenever necessary in order to facilitate their work in carrying out the intent and purposes of this act.
[42-3322, added 1951, ch. 61, sec. 4, p. 89.]
The governor of Idaho shall advise the governors of the states of Washington, Oregon, Montana, Utah, Wyoming and Nevada, and the president of the United States of this enactment and request that reciprocal legislation be enacted by said states and that a proper resolution or statute be adopted by the congress of the United States granting permission to the states of Washington, Oregon, Montana, Utah, Wyoming, Nevada and Idaho to enter into a compact or agreement respecting the control of the waters of the Columbia River and its tributaries.
[42-3323, added 1951, ch. 61, sec. 5, p. 89.]
The tenure of office of said commissioners shall be at the pleasure of the governor, and their remuneration and expenses shall be fixed by him.
[42-3324, added 1951, ch. 61, sec. 6, p. 89.]
Ratification and approval is hereby given to the Snake River Compact as signed at the city of Cheyenne in the state of Wyoming on the 10th day of October, 1949, by the commissioners of the state of Idaho, acting pursuant to authority granted by sections 42-3313—42-3318, and the commissioners representing the state of Wyoming and approved by the representative of the United States, which compact is in full as follows:
SNAKE RIVER COMPACT
The states of Idaho and Wyoming, parties signatory to this compact, have resolved to conclude a compact as authorized by the Act of June 3, 1948 (62 Stat. 294), and after negotiations participated in by the following named state commissioners:
FOR IDAHO
Mark R. Kulp, Boise
N. V. Sharp, Filer
Charles H. Welteroth, Jerome
Roy Marquess, Paul
Ival V. Goslin, Aberdeen
R. Willis Walker, Rexburg
Alex O. Coleman, St. Anthony
Leonard E. Graham, Rigby
Charles E. Anderson, Idaho Falls
A. K. Van Orden, Blackfoot
FOR WYOMING
L. C. Bishop, Cheyenne
E. B. Hitchcock, Rock Springs
J. G. Imeson, Jackson
David P. Miller, Rock Springs
Carl Robinson, Afton
Ciril D. Cranney, Afton
Clifford P. Hansen, Jackson
Clifford S. Wilson, Driggs, Idaho
Lloyd Van Deburg, Jackson
and by R. J. Newell, representative of the United States of America, have agreed upon the following articles, to wit:
ARTICLE I
A. The major purposes of this compact are to provide for the most efficient use of the waters of the Snake River for multiple purposes; to provide for equitable division of such waters; to remove causes of present and future controversies; to promote interstate comity; to recognize that the most efficient utilization of such waters is required for the development of the drainage area of the Snake River and its tributaries in Wyoming and Idaho; and to promote joint action by the states and the United States in the development and use of such waters and the control of floods.
B. Either state using, claiming or in any manner asserting any right to the use of the waters of the Snake River under the authority of either state shall be subject to the terms of this compact.
ARTICLE II
As used in this compact:
A. The term "Snake River" as distinguished from terms such as "Snake River and its tributaries" shall mean the Snake River from its headwaters to the Wyoming-Idaho boundary and all tributaries flowing into it within the boundaries of Wyoming, and the Salt River and all its tributaries.
B. The terms "Idaho" and "Wyoming" shall mean, respectively, the state of Idaho and the state of Wyoming, and, except as otherwise expressly provided, either of those terms or the term "state" or "states" used in relation to any right or obligation created or recognized by this compact shall include any person or entity of any nature whatsoever, including the United States.
C. The term "domestic use" shall mean the use of water by an individual, or by a family unit or household for drinking, cooking, laundering, sanitation and other personal comforts and necessities; and for the irrigation of a family garden or orchard not exceeding one-half acre in area.
D. The term "stock water use" shall mean the use of water for livestock and poultry.
E. The term "established Wyoming rights" shall mean Snake River water rights that have been validly established of record in Wyoming prior to July 1, 1949, for use in Wyoming.
ARTICLE III
A. The waters of the Snake River, exclusive of established Wyoming rights and other uses coming within the provisions of C of this article III, are hereby allocated to each state for storage or direct diversion as follows:
To Idaho…………………………. 96 per cent
To Wyoming……………………….. 4 per cent
subject to the following stipulations and conditions as to the four per cent allocated to Wyoming:
One half may be used in Wyoming by direct diversion or by storage and subsequent diversion without provision being made for replacement storage space.
The other one half may be diverted for direct use or stored for later diversion and use on the condition that there shall have been provided for reimbursement of Idaho users replacement storage space to the extent of one third of the maximum annual diversion in acre-feet but not in excess, however, of one third of half the total hereby allocated to Wyoming. Until this total replacement storage space has been made available, provision for meeting its proportionate part of this total shall be a prerequisite to the right to use water in Wyoming for any irrigation project authorized after June 30, 1949, for construction by any Federal agency.
B. The amount of water subject to allocation as provided in A of this article III shall be determined on an annual water-year basis measured from October 1 of any year through September 30 of the succeeding year. The quantity of water to which the percentage factors in A of this article III shall be applied through a given date in any water year shall be, in acre-feet, equal to the algebraic sum of:
The quantity of water, in acre-feet, that has passed the Wyoming state line in the Snake River to the given date, determined on the basis of gaging stations to be established at such points as are agreed on under the provisions of B of article VI.
The change during that water year to the given date in quantity of water, in acre-feet, in any existing or future reservoirs in Wyoming which water is for use in Idaho.
The quantity of water, in acre-feet, stored in that water year and in storage on the given date for later diversion and use in Wyoming, under rights having a priority later than June 30, 1949.
One-third of the quantity of water, in acre-feet, excluding any storage water held over from prior years, diverted, under rights having a priority later than June 30, 1949, in that water year to the given date:
(a) from the Snake River for use that year on lands in Wyoming, and
(b) from tributaries of the Salt River for use that year on lands in Idaho.
C. There are hereby excluded from the allocation made by this compact:
existing and future domestic and stock-water uses of water; provided, that the capacity of any reservoir for stock-water shall not exceed 20 acre-feet;
established Wyoming rights; and
all water rights for use in Idaho on any tributary of the Salt River heading in Idaho which were validly established under the laws of Idaho prior to July 1, 1949;
and all such uses and rights are hereby recognized.
ARTICLE IV
No water of the Snake River shall be diverted in Wyoming for use outside the drainage area of the Snake River except with the approval of Idaho; and no water of any tributary of the Salt River heading in Idaho shall be diverted in Idaho for use outside the drainage area of said tributary except with the approval of Wyoming.
ARTICLE V
Subject to the provisions of this compact, waters of the Snake River may be impounded and used for the generation of electrical power, but such impounding and use shall be subservient to the use of such waters for domestic, stock and irrigation purposes, and shall not interfere with or prevent their use for such preferred purposes. Water impounded or diverted in Wyoming exclusively for the generation of electrical power shall not be charged to the allocation set forth in article III of this compact.
ARTICLE VI
A. It shall be the duty of the two states to administer this compact through the official in each state who is now or may hereafter be charged with the administration of the public water supplies, and to collect and correlate through such officials the data necessary for the proper administration of the provisions of this compact. Such officials may, by unanimous action, adopt rules and regulations consistent with the provisions of this compact.
B. The states shall in conjunction with other responsible agencies cause to be established, maintained and operated such suitable water gaging stations as they find necessary to administer this compact. The United States Geological Survey, or whatever Federal agency may succeed to the functions and duties of that agency, so far as this compact is concerned, shall collaborate with officials of the states charged with the administration of this compact in the execution of the duty of such officials in the collection, correlation and publication of information necessary for its proper administration.
C. In the case of failure of the administrative officials of the two states to agree on any matter necessary to the administration of this compact, the director of the United States Geological Survey, or whatever official succeeds to his duties, shall be asked to appoint a Federal representative to participate as to the matters in disagreement, and points of disagreement shall be decided by majority vote.
ARTICLE VII
A. Either state shall have the right to file applications for and receive permits to construct or participate in the construction and use of any dam, storage reservoir or diversion works in the other state for the purpose of conserving and regulating its allocated water and to perfect rights thereto. Either state exercising this right shall comply with the laws of the other state except as to any general requirement for legislative approval that may be applicable to the granting of rights by one state for the diversion or storage of water for use outside of that state.
B. Each claim or right hereafter initiated for storage or diversion of water in one state for use in the other state shall be filed in the office of the proper official of the state in which the water is to be stored or diverted, and a duplicate copy of the application, including a map showing the character and location of the proposed facilities and the lands to be irrigated, shall be filed in the office of the proper official of the state in which the water is to be used. If a portion or all the lands proposed to be reclaimed are located in a state other than the one in which the water is to be stored or diverted, then, before approval, said application shall be checked against the records of the office of the state in which the water is to be used, and a notation shall be placed thereon by the officer in charge of such records as to whether or not he approves the application. All indorsements shall be placed on both the original and duplicate copies of all such applications and maps filed to the end that the records in both states may be complete and identical.
ARTICLE VIII
A. Neither state shall deny the right of the United States, and subject to the conditions hereinafter contained, neither state shall deny the right of the other state to acquire rights to the use of water, or to construct or participate in the construction and use of diversion works and storage reservoirs with appurtenant works, canals and conduits in one state for the purpose of diverting, conveying, storing or regulating water in one state for use in the other state, when such use is within the allocation to such state made by this compact.
B. Either state shall have the right to acquire such property rights as are necessary to the use of water in conformity with this compact in the other state by donation, purchase or through the exercise of the power of eminent domain. Either state, upon the written request of the governor of the other state, for the benefit of whose water users property is to be acquired in the state to which such written request is made, shall proceed expeditiously to acquire the desired property either by purchase at a price satisfactory to the requesting state, or, if such purchase cannot be made, then through the exercise of its power of eminent domain and shall convey such property to the requesting state or such entity as may be designated by the requesting state; provided, that all costs of acquisition and expenses of every kind and nature whatsoever incurred in obtaining the requested property shall be paid by the requesting state at the time and in the manner prescribed by the state requested to acquire the property.
C. Should any facility be constructed in either state by and for the benefit of the other state, as above provided, the construction, repair, replacement, maintenance and operation of such facility shall be subject to the laws of the state in which the facility is located, except that, in the case of a reservoir constructed in either state for the benefit of the other state, the proper officials of the state in which the facility is located shall permit the storage and release of any water to which the other state is entitled under this compact.
D. Either state having property rights in the other state acquired as provided in B of this article VIII shall pay to the political subdivision of the state in which such property rights are located, each and every year during which such rights are held, a sum of money equivalent to the average annual amount of taxes assessed against those rights during the ten years preceding the acquisition of such rights in reimbursement for the loss of taxes to said political subdivision of the state, except that this provision shall not be applicable to interests in property rights the legal title to which is in the United States. Payments so made to a political subdivision shall be in lieu of any and all taxes by that subdivision on the property rights for which the payments are made.
ARTICLE IX
The provisions of this compact shall not apply to or interfere with the right or power of either state to regulate within its boundaries the appropriation, use and control of waters allocated to such state by this compact.
ARTICLE X
The failure of either state to use the waters, or any part thereof, the use of which is allocated to it under the terms of this compact, shall not constitute a relinquishment of the right to such use to the other state, nor shall it constitute a forfeiture or abandonment of the right to such use.
ARTICLE XI
In case any reservoir is constructed in one state where the water is to be used principally in the other state, sufficient water not to exceed five cubic feet per second shall be released at all times, if necessary for stockwater use and conservation of fish and wildlife.
ARTICLE XII
The provisions of this compact shall remain in full force and effect unless amended or terminated by action of the legislatures of both states and consented to and approved by the Congress of the United States in the same manner as this compact is required to be ratified and approved to become effective; provided, that in the event of such amendment or termination all rights theretofore established hereunder or recognized hereby shall continue to be recognized as valid by both states notwithstanding such amendment or termination.
ARTICLE XIII
Nothing in this compact shall be construed to limit or prevent either state from instituting or maintaining any action or proceeding, legal or equitable, for the protection of any right under this compact or the enforcement of any of its provisions.
ARTICLE XIV
A. Nothing in this compact shall be deemed:
To affect adversely any rights to the use of the waters of the Snake River, including its tributaries entering downstream from the Wyoming-Idaho state line, owned by or for Indians, Indian tribes and their reservations. The water required to satisfy these rights shall be charged against the allocation made to the state in which the Indians and their lands are located.
To impair or affect any rights or powers of the United States, its agencies or instrumentalities, in and to the use of the waters of the Snake River nor its capacity to acquire rights in and to the use of said waters.
To apply to any waters within the Yellowstone National Park or Grand Teton National Park.
To subject any property of the United States, its agencies or instrumentalities to taxation by either state or subdivisions thereof, nor to create an obligation on the part of the United States, its agents or instrumentalities, by reason of the acquisition, construction or operation of any property or works of whatsoever kind, to make any payments to any state or political subdivisions thereof, state agency, municipality or entity whatsoever in reimbursement for the loss of taxes.
To subject any works of the United States used in connection with the control or use of waters which are the subject of this compact to the laws of any state to an extent other than the extent to which these laws would apply without regard to this compact.
B. Notwithstanding the provisions of A of this article, any beneficial uses hereafter made by the United States, or those acting by or under its authority, within either state, of the waters allocated by this compact shall be within the allocations hereinabove made for use in that state and shall be taken into account in determining the extent of use within that state.
ARTICLE XV
This compact shall become operative when approved by legislative enactment by each of the states, and when consented to by the Congress of the United States.
ARTICLE XVI
Wyoming hereby relinquishes the right to the allocation of stored water in Grassy Lake Reservoir, as set forth in Wyoming’s reservoir permit No. 4631 Res. and evidenced by certificate No. R-1, page 318, and all claims predicated thereon.
In witness whereof the commissioners have signed this compact in quadruplicate, one of which shall be filed in the archives of the department of state of the United States of America and shall be deemed the authoritative original, and of which a duly certified copy shall be forwarded to the governor of each of the states.
Done at the city of Cheyenne, in the state of Wyoming, this 10th day of October, in the Year of Our Lord, One Thousand Nine Hundred and Forty-nine.
| COMMISSIONERS FOR IDAHO | COMMISSIONERS FOR WYOMING | | | | --- | --- | --- | --- | | /s/ Mark R. Kulp | /s/ L. C. Bishop | | | | | Mark R. Kulp | | L. C. Bishop | | /s/ N. V. Sharp | /s/ E. B. Hitchcock | | | | | N. V. Sharp | | E. B. Hitchcock | | /s/ Charles H. Welteroth | /s/ J. G. Imeson | | | | | Charles H. Welteroth | J. G. Imeson | | | /s/ Roy Marquess | /s/ David P. Miller | | | | | Roy Marquess | | David P. Miller | | /s/ Ival V. Goslin | /s/ Carl Robinson | | | | | Ival V. Goslin | | Carl Robinson | | /s/ R. Willis Walker | /s/ Ciril D. Cranney | | | | | R. Willis Walker | Ciril D. Cranney | | | /s/ Alex O. Coleman | /s/ Clifford P. Hansen | | | | | Alex O. Coleman | | Clifford P. Hansen | | /s/ Leonard E. Graham | /s/ Clifford S. Wilson | | | | | Leonard E. Graham | Clifford S. Wilson | | | /s/ Chas. E. Anderson | /s/ Lloyd Van Deburg | | | | | Charles E. Anderson | Lloyd Van Deburg | | | /s/ A. K. Van Orden | | | | | | A. K. Van Orden | | |
I have participated in the negotiation of this compact and intend to report favorably thereon to the Congress of the United States.
[42-3401, added 1950 (E.S.), ch. 2, sec. 1, p. 4.]
Ratification and approval is hereby given to the Bear River Compact as signed at the city of Salt Lake City, in the state of Utah on the twenty-second day of December, 1978, by Clifford J. Skinner, J. Daniel Roberts and Don W. Gilbert, commissioners of the state of Idaho, acting pursuant to authority granted by article XIV of the ratified Bear River Compact appearing at section 42-3402, Idaho Code, and the commissioners representing the state of Utah, the state of Wyoming and approved by Wallace N. Jibson, Representative of the United States, which compact is in full as follows:
AMENDED BEAR RIVER COMPACT
The state of Idaho, the state of Utah, and the state of Wyoming, acting through their respective commissioners after negotiations participated in by a representative of the United States of America appointed by the President, have agreed to an amended Bear River Compact as follows:
ARTICLE I
A. The major purposes of this compact are to remove the causes of present and future controversy over the distribution and use of the waters of the Bear River; to provide for efficient use of water for multiple purposes; to permit additional development of the water resources of Bear River; to promote interstate comity; and to accomplish an equitable apportionment of the waters of the Bear River among the compacting states.
B. The physical and all other conditions peculiar to the Bear River constitute the basis for this compact. No general principle or precedent with respect to any other interstate stream is intended to be established.
ARTICLE II
As used in this compact the term
"Bear River" means the Bear River and its tributaries from its source in the Uinta Mountains to its mouth in Great Salt Lake;
"Bear Lake" means Bear Lake and Mud Lake.
"Upper Division" means the portion of Bear River from its source in the Uinta Mountains to and including Pixley Dam, a diversion dam in the Southeast Quarter of Section 25, Township 23 North, Range 120 West, Sixth Principal Meridian, Wyoming;
"Central Division" means the portion of the Bear River from Pixley Dam to and including Stewart Dam, a diversion dam in Section 34, Township 13 South, Range 44 East, Boise Base and Meridian, Idaho;
"Lower Division" means the portion of the Bear River between Stewart Dam and Great Salt Lake, including Bear Lake and its tributary drainage;
"Upper Utah Section Diversions" means the sum of all diversions in second-feet from the Bear River and the tributaries of the Bear River joining the Bear River upstream from the point where the Bear River crosses the Utah-Wyoming State line above Evanston, Wyoming; excluding the diversions by the Hilliard East Fork Canal, Lannon Canal, Lone Mountain Ditch, and Hilliard West Side Canal;
"Upper Wyoming Section Diversions" means the sum of all diversions in second-feet from the Bear River main stem from the point where the Bear River crosses the Utah-Wyoming State line above Evanston, Wyoming, to the point where the Bear River crosses the Wyoming-Utah State line east of Woodruff, Utah, and including the diversions by the Hilliard East Fork Canal, Lannon Canal, Lone Mountain Ditch, and Hilliard West Side Canal;
"Lower Utah Section Diversions" means the sum of all diversions in second-feet from the Bear River main stem from the point where the Bear River crosses the Wyoming-Utah State line east of Woodruff, Utah, to the point where the Bear River crosses the Utah-Wyoming State line northeast of Randolph, Utah;
"Lower Wyoming Section Diversions" means the sum of all diversions in second-feet from the Bear River main stem from the point where the Bear River crosses the Utah-Wyoming State line northeast of Randolph to and including the diversion at Pixley Dam;
"Commission" means the Bear River Commission, organized pursuant to Article III of this compact;
"Water user" means a person, corporation, or other entity having a right to divert water from the Bear River for beneficial use;
"Second-foot" means a flow of one cubic foot of water per second of time passing a given point;
"Acre-foot" means the quantity of water required to cover one acre to a depth of one foot, equivalent to 43,560 cubic feet;
"Biennium" means the 2-year period commencing on October 1 of the first odd numbered year after the effective date of this compact and each 2-year period thereafter;
"Water year" means the period beginning October 1 and ending September 30 of the following year;
"Direct flow" means all water flowing in a natural watercourse except water released from storage or imported from a source other than the Bear River watershed;
"Border Gaging Station" means the stream flow gaging station in Idaho on the Bear River above Thomas Fork near the Wyoming-Idaho boundary line in the Northeast Quarter of the Northeast Quarter of Section 15, Township 14 South, Range 46 East, Boise Base and Meridian, Idaho;
"Smiths Fork" means a Bear River tributary which rises in Lincoln County, Wyoming and flows in a general southwesterly direction to its confluence with Bear River near Cokeville, Wyoming;
"Grade Creek" means a Smiths Fork tributary which rises in Lincoln County, Wyoming and flows in a westerly direction and in its natural channel is tributary to Smiths Fork in Section 17, Township 25 North, Range 118 West, Sixth Principal Meridian, Wyoming;
"Pine Creek" means a Smiths Fork tributary which rises in Lincoln County, Wyoming, emerging from its mountain canyon in Section 34, Township 25 North, Range 118 West, Sixth Principal Meridian, Wyoming, and in its natural channel is tributary to Smiths Fork in Section 36, Township 25 North, Range 119 West, Sixth Principal Meridian, Wyoming;
"Bruner Creek" and "Pine Creek Springs" means Smiths Fork tributaries which rise in Lincoln County, Wyoming, in Sections 31 and 32, Township 25 North, Range 118 West, Sixth Principal Meridian, and in their natural channels are tributary to Smiths Fork in Section 36, Township 25 North, Range 119 West, Sixth Principal Meridian, Wyoming;
"Spring Creek" means a Smiths Fork tributary which rises in Lincoln County, Wyoming, in Sections 1 and 2, Township 24 North, Range 119 West, Sixth Principal Meridian, Wyoming, and flows in a general westerly direction to its confluence with Smiths Fork in Section 4, Township 24 North, Range 119 West, Sixth Principal Meridian, Wyoming;
"Sublette Creek" means the Bear River tributary which rises in Lincoln County, Wyoming and flows in a general westerly direction to its confluence with Bear River in Section 20, Township 24 North, Range 119 West, Sixth Principal Meridian, Wyoming;
"Hobble Creek" means the Smiths Fork tributary which rises in Lincoln County, Wyoming and flows in a general southwesterly direction to its confluence with Smiths Fork in Section 35, Township 28 North, Range 118 West, Sixth Principal Meridian, Wyoming;
"Hilliard East Fork Canal" means that irrigation canal which diverts water from the right bank of the East Fork of Bear River in Summit County, Utah, at a point West 1,310 feet and North 330 feet from the Southeast corner of Section 16, Township 2 North, Range 10 East, Salt Lake Base and Meridian, Utah, and runs in a northerly direction crossing the Utah-Wyoming State line into the Southwest Quarter of Section 21, Township 12 North, Range 119 West, Sixth Principal Meridian, Wyoming;
"Lannon Canal" means that irrigation canal which diverts water from the right bank of the Bear River in Summit County, Utah, East 1,480 feet from the West Quarter corner of Section 19, Township 3 North, Range 10 East, Salt Lake Base and Meridian, Utah, and runs in a northerly direction crossing the Utah-Wyoming State line into the South Half of Section 20, Township 12 North, Range 119 West, Sixth Principal Meridian, Wyoming;
"Lone Mountain Ditch" means that irrigation canal which diverts water from the right bank of the Bear River in Summit County, Utah, North 1,535 feet and East 1,120 feet from the West Quarter corner of Section 19, Township 3 North, Range 10 East, Salt Lake Base and Meridian, Utah, and runs in a northerly direction crossing the Utah-Wyoming State line into the South Half of Section 20, Township 12 North, Range 119 West, Sixth Principal Meridian, Wyoming;
"Hilliard West Side Canal" means that irrigation canal which diverts water from the right bank of the Bear River in Summit County, Utah, at a point North 2,190 feet and East 1,450 feet from the South Quarter corner of Section 13, Township 3 North, Range 9 East, Salt Lake Base and Meridian, Utah, and runs in a northerly direction crossing the Utah-Wyoming State line into the South Half of Section 20, Township 12 North, Range 119 West, Sixth Principal Meridian, Wyoming;
"Francis Lee Canal" means that irrigation canal which diverts water from the left bank of the Bear River in Uinta County, Wyoming, in the Northeast Quarter of Section 30, Township 18 North, Range 120 West, Sixth Principal Meridian, Wyoming, and runs in a westerly direction across the Wyoming-Utah State line into Section 16, Township 9 North, Range 8 East, Salt Lake Base and Meridian, Utah;
"Chapman Canal" means that irrigation canal which diverts water from the left bank of the Bear River in Uinta County, Wyoming, in the Northeast Quarter of Section 36, Township 16 North, Range 121 West, Sixth Principal Meridian, Wyoming, and runs in a northerly direction crossing over the low divide into the Saleratus drainage basin near the Southeast corner of Section 36, Township 17 North, Range 121 West, Sixth Principal Meridian, Wyoming and then in a general westerly direction crossing the Wyoming-Utah State line;
"Neponset Reservoir" means that reservoir located principally in Sections 34 and 35, Township 8 North, Range 7 East, Salt Lake Base and Meridian, Utah, having a capacity of 6,900 acre-feet.
ARTICLE III
A. There is hereby created an interstate administrative agency to be known as the "Bear River Commission" which is hereby constituted a legal entity and in such name shall exercise the powers hereinafter specified. The commission shall be composed of nine commissioners, three commissioners representing each signatory state, and if appointed by the President, one additional commissioner representing the United States of America who shall serve as chairman, without vote. Each commissioner, except the chairman, shall have one vote. The state commissioners shall be selected in accordance with state law. Six commissioners who shall include two commissioners from each state shall constitute a quorum. The vote of at least two thirds of the commissioners when a quorum is present shall be necessary for the action of the commission.
B. The compensation and expenses of each commissioner and each adviser shall be paid by the government which he represents. All expenses incurred by the commission in the administration of this compact, except those paid by the United States of America, shall be paid by the signatory states on an equal basis.
C. The commission shall have power to:
Adopt by-laws, rules, and regulations not inconsistent with this compact;
Acquire, hold, convey or otherwise dispose of property;
Employ such persons and contract for such services as may be necessary to carry out its duties under this compact;
Sue and be sued as a legal entity in any court of record of a signatory state, and in any court of the United States having jurisdiction of such action;
Cooperate with state and federal agencies in matters relating to water pollution of interstate significance;
Perform all functions required of it by this compact and do all things necessary, proper or convenient in the performance of its duties hereunder, independently or in cooperation with others, including state and federal agencies.
D. The commission shall:
Enforce this compact and its orders made hereunder by suit or other appropriate action;
Compile a report covering the work of the commission and expenditures during the current biennium, and an estimate of expenditures for the following biennium and transmit it to the President of the United States and to the governors of the signatory states on or before July 1 following each biennium.
ARTICLE IV
Rights to direct flow water shall be administered in each signatory state under state law, with the following limitations:
A. When there is a water emergency, as hereinafter defined for each division, water shall be distributed therein as provided below.
a. When the divertible flow as defined below for the Upper Division is less than 1,250 second-feet, a water emergency shall be deemed to exist therein and such divertible flow is allocated for diversion in the river sections of the Division as follows:
Upper Utah Section Diversions–0.6 per cent,
Upper Wyoming Section Diversions–49.3 per cent,
Lower Utah Section Diversions–40.5 per cent,
Lower Wyoming Section Diversions–9.6 per cent.
Such divertible flow shall be the total of the following five items:
(1) Upper Utah Section Diversions in second-feet,
(2) Upper Wyoming Section Diversions in second-feet,
(3) Lower Utah Section Diversions in second-feet,
(4) Lower Wyoming Section Diversions in second-feet,
(5) The flow in second-feet passing Pixley Dam.
b. The Hilliard East Fork Canal, Lannon Canal, Lone Mountain Ditch, and Hilliard West Side Canal, which divert water in Utah to irrigate lands in Wyoming, shall be supplied from the divertible flow allocated to the Upper Wyoming Section Diversions.
c. The Chapman, Bear River, and Francis Lee Canals, which divert water from the main stem of Bear River in Wyoming to irrigate lands in both Wyoming and Utah, shall be supplied from the divertible flow allocated to the Upper Wyoming Section Diversions.
d. The Beckwith Quinn West Side Canal, which diverts water from the main stem of Bear River in Utah to irrigate lands in both Utah and Wyoming, shall be supplied from the divertible flow allocated to the Lower Utah Section Diversions.
e. If for any reason the aggregate of all diversions in a river section of the Upper Division does not equal the allocation of water thereto, the unused portion of such allocations shall be available for use in the other river sections in the Upper Division in the following order:
(1) In the other river section of the same state in which the unused allocation occurs; and (2) In the river sections of the other state. No permanent right of use shall be established by the distribution of water pursuant to this paragraph e.
f. Water allocated to the several sections shall be distributed in each section in accordance with state law.
a. When either the divertible flow as hereinafter defined for the Central Division is less than 870 second-feet, or the flow of the Bear River at Border Gaging Station is less than 350 second-feet, whichever shall first occur, a water emergency shall be deemed to exist in the Central Division and the total of all diversions in Wyoming from Grade Creek, Pine Creek, Bruner Creek and Pine Creek Springs, Spring Creek, Sublette Creek, Smiths Fork, and all the tributaries of Smiths Fork above the mouth of Hobble Creek including Hobble Creek, and from the main stem of the Bear River between Pixley Dam and the point where the river crosses the Wyoming-Idaho state line near border shall be limited for the benefit of the state of Idaho, to not exceeding forty-three (43) per cent of the divertible flow. The remaining fifty-seven (57) per cent of the divertible flow shall be available for use in Idaho in the Central Division, but if any portion of such allocation is not used therein it shall be available for use in Idaho in the Lower Division.
The divertible flow for the Central Division shall be the total of the following three items:
(1) Diversions in second-feet in Wyoming consisting of the sum of all diversions from Grade Creek, Pine Creek, Bruner Creek and Pine Creek Springs, Spring Creek, Sublette Creek, and Smiths Fork and all the tributaries of Smiths Fork above the mouth of Hobble Creek including Hobble Creek, and the main stem of the Bear River between Pixley Dam and the point where the river crosses the Wyoming-Idaho state line near Border, Wyoming.
(2) Diversions in second-feet in Idaho from the Bear River main stem from the point where the river crosses the Wyoming-Idaho state line near Border to Stewart Dam including West Fork Canal which diverts at Stewart Dam.
(3) Flow in second-feet of the Rainbow Inlet Canal and of the Bear River passing downstream from Stewart Dam.
b. The Cook Canal, which diverts water from the main stem of the Bear River in Wyoming to irrigate lands in both Wyoming and Idaho, shall be considered a Wyoming diversion and shall be supplied from the divertible flow allocated to Wyoming.
c. Water allocated to each state shall be distributed in accordance with state law.
When the flow of water across the Idaho-Utah boundary line is insufficient to satisfy water rights in Utah, covering water applied to beneficial use prior to January 1, 1976, any water user in Utah may file a petition with the commission alleging that by reason of diversions in Idaho he is being deprived of water to which he is justly entitled, and that by reason thereof, a water emergency exists, and requesting distribution of water under the direction of the commission. If the commission finds a water emergency exists, it shall put into effect water delivery schedules based on priority of rights and prepared by the commission without regard to the boundary line for all or any part of the division, and during such emergency, water shall be delivered in accordance with such schedules by the state official charged with the administration of public waters.
B. The commission shall have authority upon its own motion (1) to declare a water emergency in any or all river divisions based upon its determination that there are diversions which violate this compact and which encroach upon water rights in a lower state, (2) to make appropriate orders to prevent such encroachments, and (3) to enforce such orders by action before state administrative officials or by court proceedings.
C. When the flow of water in an interstate tributary across a state boundary line is insufficient to satisfy water rights on such tributary in a lower state, any water user may file a petition with the commission alleging that by reason of diversions in an upstream state he is being deprived of water to which he is justly entitled and that by reason thereof a water emergency exists, and requesting distribution of water under the direction of the commission. If the commission finds that a water emergency exists and that interstate control of water of such tributary is necessary, it shall put into effect water delivery schedules based on priority of rights and prepared without regard to the state boundary line. The state officials in charge of water distribution on interstate tributaries may appoint and fix the compensation and expenses of a joint water commissioner for each tributary. The proportion of the compensation and expenses to be paid by each state shall be determined by the ratio between the number of acres therein which are irrigated by diversions from such tributary, and the total number of acres irrigated from such tributary.
D. In preparing interstate water delivery schedules the commission, upon notice and after public hearings, shall make findings of fact as to the nature, priority and extent of water rights, rates of flow, duty of water, irrigated acreages, types of crops, time of use, and related matters; provided that such schedules shall recognize and incorporate therein priority of water rights as adjudicated in each of the signatory states. Such findings of fact shall, in any court or before any tribunal, constitute prima facie evidence of the facts found.
E. Water emergencies provided for herein shall terminate on September 30 of each year unless terminated sooner or extended by the commission.
ARTICLE V
A. Water rights in the Lower Division acquired under the laws of Idaho and Utah covering water applied to beneficial use prior to January 1, 1976, are hereby recognized and shall be administered in accordance with state law based on priority of rights as provided in article IV, paragraph A3. Rights to water first applied to beneficial use on or after January 1, 1976, shall be satisfied from the respective allocations made to Idaho and Utah in this paragraph and the water allocated to each state shall be administered in accordance with state law. Subject to the foregoing provisions, the remaining water in the Lower Division, including ground water tributary to the Bear River, is hereby apportioned for use in Idaho and Utah as follows:
(1) Idaho shall have the first right to the use of such remaining water resulting in an annual depletion of not more than 125,000 acre-feet.
(2) Utah shall have the second right to the use of such remaining water resulting in an annual depletion of not more than 275,000 acre-feet.
(3) Idaho and Utah shall each have an additional right to deplete annually on an equal basis, 75,000 acre-feet of the remaining water after the rights provided by subparagraphs (1) and (2) above have been satisfied.
(4) Any remaining water in the Lower Division after the allocations provided for in subparagraphs (1), (2), and (3) above have been satisfied shall be divided; thirty (30) percent to Idaho and seventy (70) percent to Utah.
B. Water allocated under the above subparagraphs shall be charged against the state in which it is used regardless of the location of the point of diversion.
C. Water depletions permitted under provisions of subparagraphs (1), (2), (3), and (4) above, shall be calculated and administered by a commission-approved procedure.
ARTICLE VI
A. Existing storage rights in reservoirs constructed above Stewart Dam prior to February 4, 1955 are as follows:
Idaho
Utah
Wyoming
Additional rights are hereby granted to store in any water year above Stewart Dam, 35,500 acre-feet of Bear River water and no more under this paragraph for use in Utah and Wyoming; and to store in any water year in Idaho or Wyoming on Thomas Fork 1,000 acre-feet of water for use in Idaho. Such additional storage rights shall be subordinate to, and shall not be exercised when the effect thereof will be to impair or interfere with (1) existing direct flow rights for consumptive use in any river division and (2) existing storage rights above Stewart Dam, but shall not be subordinate to any right to store water in Bear Lake or elsewhere below Stewart Dam. One half of the 35,500 acre-feet of additional storage right above Stewart Dam so granted to Utah and Wyoming is hereby allocated to Utah, and the remaining one half thereof is allocated to Wyoming.
B. In addition to the rights defined in paragraph A of this article, further storage entitlements above Stewart Dam are hereby granted. Wyoming and Utah are granted an additional right to store in any year 70,000 acre-feet of Bear River water for use in Utah and Wyoming to be divided equally; and Idaho is granted an additional right to store 4,500 acre-feet of Bear River water in Wyoming or Idaho for use in Idaho. Water rights granted under this paragraph and water appropriated, including ground water tributary to Bear River, which is applied to beneficial use on or after January 1, 1976, shall not result in an annual increase in depletion of the flow of the Bear River and its tributaries above Stewart Dam of more than 28,000 acre-feet in excess of the depletion as of January 1, 1976. Thirteen thousand (13,000) acre-feet of the additional depletion above Stewart Dam is allocated to each of Utah and Wyoming, and two thousand (2,000) acre-feet is allocated to Idaho.
The additional storage rights provided for in this paragraph shall be subordinate to, and shall not be exercised when the effect thereof will be to impair or interfere with (1) existing direct flow rights for consumptive use in any river division and (2) existing storage rights above Stewart Dam, but shall not be subordinate to any right to store water in Bear Lake or elsewhere below Stewart Dam; provided, however, there shall be no diversion of water to storage above Stewart Dam under this paragraph B when the water surface elevation of Bear Lake is below 5,911.00 feet, Utah Power & Light Company datum (the equivalent of elevation 5,913.75 feet based on the sea level datum of 1929 through the Pacific Northwest Supplementary Adjustment of 1947). Water depletions permitted under this paragraph B shall be calculated and administered by a commission-approved procedure.
C. In addition to the rights defined in article VI, paragraphs A and B, Idaho, Utah and Wyoming are granted the right to store and use water above Stewart Dam that otherwise would be bypassed or released from Bear Lake at times when all other direct flow and storage rights are satisfied. The availability of such water and the operation of reservoir space to store water above Bear Lake under this paragraph shall be determined by a commission-approved procedure. The storage provided for in this paragraph shall be subordinate to all other storage and direct flow rights in the Bear River. Storage rights under this paragraph shall be exercised with equal priority on the following basis: six (6) percent thereof to Idaho; forty-seven (47) percent thereof to Utah; and forty-seven (47) percent thereof to Wyoming.
D. The waters of Bear Lake below elevation 5,912.91 feet, Utah Power & Light Company Bear Lake datum (the equivalent of elevation 5,915.66 feet based on the sea level datum of 1929 through the Pacific Northwest Supplementary Adjustment of 1947) shall constitute a reserve for irrigation. The water of such reserve shall not be released solely for the generation of power, except in emergency, but after release for irrigation it may be used in generating power if not inconsistent with its use for irrigation. Any water in Bear Lake in excess of that constituting the irrigation reserve may be used solely for the generation of power or for other beneficial uses. As new reservoir capacity above the Stewart Dam is constructed to provide additional storage pursuant to paragraph A of this article, the commission shall make a finding in writing as to the quantity of additional storage and shall thereupon make an order increasing the irrigation reserve in accordance with the following table:
| Additional storage acre-feet | Lake Surface elevation Utah Power & Light Company Bear Lake datum | | --- | --- | | 5,000 | 5,913.24 | | 10,000 | 5,913.56 | | 15,000 | 5,913.87 | | 20,000 | 5,914.15 | | 25,000 | 5,914.41 | | 30,000 | 5,914.61 | | 35,500 | 5,914.69 | | 36,500 | 5,914.70 |
E. Subject to existing rights, each state shall have the use of water, including ground water, for ordinary domestic, and stock watering purposes, as determined by state law and shall have the right to impound water for such purposes in reservoirs having storage capacities not in excess, in any case, of 20 acre-feet, without deduction from the allocation made by paragraphs A, B, and C of this article.
F. The storage rights in Bear Lake are hereby recognized and confirmed subject only to the restrictions hereinbefore recited.
ARTICLE VII
It is the policy of the signatory states to encourage additional projects for the development of the water resources of the Bear River to obtain the maximum beneficial use of water with a minimum of waste, and in furtherance of such policy, authority is granted within the limitations provided by this compact, to investigate, plan, construct, and operate such projects without regard to state boundaries, provided that water rights for each such project shall, except as provided in article VI, paragraphs A and B thereof, be subject to rights theretofore initiated and in good standing.
ARTICLE VIII
A. No state shall deny the right of the United States of America, and subject to the conditions hereinafter contained, no state shall deny the right of another signatory state, any person or entity of another signatory state, to acquire rights to the use of water or to construct or to participate in the construction and use of diversion works and storage reservoirs with appurtenant works, canals, and conduits in one state for use of water in another state, either directly or by exchange. Water rights acquired for out-of-state use shall be appropriated in the state where the point of diversion is located in the manner provided by law for appropriation of water for use within such state.
B. Any signatory state, any person or any entity of any signatory state, shall have the right to acquire in any other signatory state such property rights as are necessary to the use of water in conformity with this compact by donation, purchase, or, as hereinafter provided through the exercise of the power of eminent domain in accordance with the law of the state in which such property is located. Any signatory state, upon the written request of the governor of any other signatory state for the benefit of whose water users property is to be acquired in the state to which such written request is made, shall proceed expeditiously to acquire the desired property either by purchase at a price acceptable to the requesting governor, or if such purchase cannot be made, then through the exercise of its power of eminent domain and shall convey such property to the requesting state or to the person, or entity designated by its governor provided, that all costs of acquisition and expenses of every kind and nature whatsoever incurred in obtaining such property shall be paid by the requesting state or the person or entity designated by its governor.
C. Should any facility be constructed in a signatory state by and for the benefit of another signatory state or persons or entities therein, as above provided, the construction, repair, replacement, maintenance and operation of such facility shall be subject to the laws of the state in which the facility is located.
D. In the event lands or other taxable facilities are acquired by a signatory state in another signatory state for the use and benefit of the former, the users of the water made available by such facilities, as a condition precedent to the use thereof, shall pay to the political subdivisions of the state in which such facilities are located, each and every year during which such rights are enjoyed for such purposes, a sum of money equivalent to the average of the amount of taxes annually levied and assessed against the land and improvements thereon during the ten years preceding the acquisition of such land. Said payments shall be in full reimbursement for the loss of taxes in such political subdivision of the state.
E. Rights to the use of water acquired under this article shall in all respects be subject to this compact.
ARTICLE IX
Stored water, or water from another watershed may be turned into the channel of the Bear River in one state and a like quantity, with allowance for loss by evaporation, transpiration, and seepage, may be taken out of the Bear River in another state either above or below the point where the water is turned into the channel, but in making such exchange the replacement water shall not be inferior in quality for the purpose used or diminished in quantity. Exchanges shall not be permitted if the effect thereof is to impair vested rights or to cause damage for which no compensation is paid. Water from another watershed or source which enters the Bear River by actions within a state may be claimed exclusively by that state and use thereof by that state shall not be subject to the depletion limitations of articles IV, V and VI. Proof of any claimed increase in flow shall be the burden of the state making such claim, and it shall be approved only by the unanimous vote of the commission.
ARTICLE X
A. The following rights to the use of Bear River water carried in interstate canals are recognized and confirmed.
| | Date of | Primary right | Lands irrigated | | | --- | --- | --- | --- | --- | | Name of Canal | priority | second-feet | Acres | State | | Hilliard East Fork | 1914 | 28.00 | 2,644 | Wyoming | | Chapman | 8-13-86 | 16.46 | 1,155 | Wyoming | | | 8-13-86 | 98.46 | 6,892 | Utah | | | 4-12-12 | .57 | 40 | Wyoming | | | 5-3-12 | 4.07 | 285 | Utah | | | 5-21-12 | 10.17 | 712 | Utah | | | 2-6-13 | .79 | 55 | Wyoming | | | 8-28-05 | 134.00 | | | | Francis Lee | 1879 | 2.20 | 154 | Wyoming | | | 1879 | 7.41 | 519 | Utah |
Under the right as herein confirmed not to exceed 134 second-feet may be carried across the Wyoming-Utah state line in the Chapman Canal at any time for filling the Neponset Reservoir, for irrigation of land in Utah and for other purposes. The storage right in Neponset Reservoir is for 6,900 acre-feet which is a component part of the irrigation right for the Utah lands listed above.
All other rights to the use of water carried in interstate canals and ditches, as adjudicated in the state in which the point of diversion is located, are recognized and confirmed.
B. All interstate rights shall be administered by the state in which the point of diversion is located and during times of water emergency, such rights shall be filled from the allocations specified in article IV hereof for the section in which the point of diversion is located, with the exception that the diversion of water into the Hilliard East Fork Canal, Lannon Canal, Lone Mountain Ditch, and Hilliard West Side Canal shall be under the administration of Wyoming. During times of water emergency these canals and the Lone Mountain Ditch shall be supplied from the allocation specified in article IV for the Upper Wyoming Section Diversions.
ARTICLE XI
Applications for appropriation, for change of point of diversion, place and nature of use, and for exchange of Bear River water shall be considered and acted upon in accordance with the law of the state in which the point of diversion is located, but no such application shall be approved if the effect thereof will be to deprive any water user in another state of water to which he is entitled, nor shall any such application be approved if the effect thereof will be an increase in the depletion of the flow of the Bear River and its tributaries beyond the limits authorized in each state in articles IV, V and VI of this compact. The official of each state in charge of water administration shall, at intervals and in the format established by the commission, report on the status of use of the respective allocations.
ARTICLE XII
Nothing in this compact shall be construed to prevent the United States, a signatory state or political subdivision thereof, person, corporation, or association, from instituting or maintaining any action or proceeding, legal or equitable, for the protection of any right under state or federal law or under this compact.
ARTICLE XIII
Nothing contained in this compact shall be deemed
to affect the obligations of the United States of America to the Indian tribes;
to impair, extend or otherwise affect any right or power of the United States, its agencies or instrumentalities involved herein; nor the capacity of the United States to hold or acquire additional rights to the use of the water of the Bear River;
to subject any property or rights of the United States to the laws of the states which were not subject thereto prior to the date of this compact;
to submit any property of the United States to taxation by the states or any subdivision thereof, nor to obligate the United States to pay any state or subdivision thereof for loss of taxes.
ARTICLE XIV
At intervals not exceeding twenty years, the commission shall review the provisions hereof, and after notice and public hearing, may propose amendments to any such provision, provided, however, that the provisions contained herein shall remain in full force and effect until such proposed amendments have been ratified by the legislatures of the signatory states and consented to by congress.
ARTICLE XV
This compact may be terminated at any time by the unanimous agreement of the signatory states. In the event of such termination all rights established under it shall continue unimpaired.
ARTICLE XVI
Should a court of competent jurisdiction hold any part of this compact to be contrary to the constitution of any signatory state or to the Constitution of the United States, all other severable provisions of this compact shall continue in full force and effect.
ARTICLE XVII
This compact shall be in effect when it shall have been ratified by the legislature of each signatory state and consented to by the congress of the United States of America. Notice of ratification by the legislatures of the signatory states shall be given by the governor of each signatory state to the governor of each of the other signatory states and to the President of the United States of America, and the President is hereby requested to give notice to the governor of each of the signatory states of approval by the congress of the United States of America.
IN WITNESS WHEREOF, The commissioners and their advisors have executed this compact in five originals, one of which shall be deposited with the General Services Administration of the United States of America, one of which shall be forwarded to the governor of each of the signatory states, and one of which shall be made a part of the permanent records of the Bear River Commission.
Done at Salt Lake City, Utah, this 22nd day of December 1978.
For the State of Idaho:
/s/ Don W. Gilbert
/s/ Clifford J. Skinner
/s/ J. Daniel Roberts
For the state of Utah:
/s/ David F. Lawrence
/s/ S. Paul Holmgren
/s/ Simeon Weston
For the state of Wyoming:
/s/ John A. Teichert
/s/ George L. Christopulos
/s/ J. W. Myers
Approved:
/s/ Wallace N. Jibson
Representative of the United
States of America
[42-3402, added 1955, ch. 218, sec. 1, p. 450; am. 1979, ch. 322, sec. 1, p. 862.]
Should congress by virtue of the authority vested in it under article 1, section 10, of the Constitution of the United States, providing for compacts and agreements between states, ratify the following as a definite compact and agreement between the states of Washington, Oregon and Idaho, then, and in that event, there shall exist between the states of Washington, Oregon and Idaho a compact and agreement, the purport of which shall be substantially as follows:
The compact states acknowledge that they have a common interest in the conservation and management of anadromous fish stocks in the Columbia River drainage and they mutually agree to assume joint responsibility in developing sports and commercial fishery programs and regulations which will maintain and preserve the resource for the interest and benefit of all users.
Membership from the compact states shall be the Idaho department of fish and game, the fish commission of the state of Oregon, Oregon wildlife commission, Washington department of fisheries and the Washington department of game or the successor agency to any of the above. The compact members may appoint advisors to serve as needed.
All rules and regulations now existing or which may be necessary for the conservation and management of anadromous fish in the waters of the main stem of the Columbia River from its mouth to the mouth of the Snake River and the waters of the main stem of the Snake River from its mouth to the mouth of the Salmon River, shall be made, changed, altered and amended in whole or in part by a majority vote. In voting on rules and regulations, each state shall be entitled to one (1) vote. Idaho will vote only on those regulations which might have a substantial impact on fish destined for Idaho waters.
The individual states shall be responsible for the management of anadromous fish stocks in pertinent tributary streams and shall be guided in such management by the intent and purpose of this compact.
[42-3404, added 1967, ch. 37, sec. 1, p. 59; am. 1969, ch. 6, sec. 1, p. 9; am. 1975, ch. 233, sec. 1, p. 637.]
The governor of the state of Idaho is hereby authorized and directed to appoint three (3) commissioners to represent the state of Idaho on a joint commission to be composed of three (3) commissioners from each of the states of Idaho, Utah, and Wyoming and one (1) commissioner that may be appointed to represent the United States of America, the said joint commission to be constituted for the purpose of administration of the Bear River Compact.
[42-3501, added 1955, ch. 219, sec. 1, p. 468.]
Two (2) of the commissioners shall be electors of the state of Idaho who are residents within the watershed of the Bear River in Idaho. One (1) commissioner may be the director of the department of water resources of the state of Idaho.
[42-3502, added 1955, ch. 219, sec. 2, p. 468.]
The appointment of each commissioner shall be for a six (6) year term but may be terminated at the pleasure of the governor: Provided that the appointments of the commissioners first appointed shall terminate at two (2) year intervals beginning with the end of the first even numbered year after the Bear River Compact goes into effect. Vacancies shall be filled for the unexpired term in which the vacancy occurs.
[42-3503, added 1955, ch. 219, sec. 3, p. 468.]
The remuneration and expenses of the commissioners shall be fixed by the governor. The remuneration and expenses of the commissioners and the share of the state of Idaho in the expenses of the Bear River Commission shall be appropriated by the legislature to the department of water resources for these purposes.
[42-3504, added 1955, ch. 219, sec. 4, p. 468.]
The compact set forth in section 42-3403 shall not become operative unless and until it has been ratified and approved by appropriate legislative enactment by the states of Washington, Oregon and Montana, and has been consented to and approved by the congress of the United States by legislation conforming to the requirement of subdivision A of article XIV of said compact. The governor of Idaho shall give notice of the ratification and approval of this compact by the Idaho legislature to the governors of the states of Washington, Oregon, Montana, Wyoming, Nevada and Utah and to the President of the United States.
[42-3505, added 1963, ch. 310, sec. 2, p. 818.]
There shall be three (3) members of the Columbia Compact Commission from the state of Idaho. They shall be appointed by the governor with the consent of the senate and shall hold office at the pleasure of the governor. The terms of each of the initial three (3) members shall begin at the time of appointment, provided said compact shall then have gone into effect; otherwise, shall begin upon the date which said compact shall become effective. The term of one (1) of said three (3) commissioners first appointed shall be two (2) years, one (1) shall be four (4) years, and one (1) shall be six (6) years; and their successors shall be appointed by the governor with the consent of the senate for terms of six (6) years each. Each commissioner shall hold office until his successor shall be appointed or qualified. Vacancies occurring in the office of any such commissioner for any reason or cause shall be filled by appointment by the governor with the consent of the senate for the unexpired term. Any appointment made by the governor while the senate is not in session shall be effective as a temporary appointment until the next meeting of the senate when the governor shall present to that body his nomination for the office.
[42-3506, added 1963, ch. 310, sec. 3, p. 818.]
There is hereby granted to the commission and the commissioners thereof all the powers provided for in said compact and all powers necessary or incidental to the carrying out of said compact in every particular.
[42-3507, added 1963, ch. 310, sec. 4, p. 818.]
Each member of the Commission from the state of Idaho shall be compensated, from funds appropriated by the Legislature for that purpose, as provided by section 59-509(f), Idaho Code, for each day devoted to the business of the Commission. Such member may, regardless of any charter or statutory provision to the contrary, be an officer or employee holding another public position.
[42-3508, added 1963, ch. 310, sec. 5, p. 818; am. 1980, ch. 247, sec. 43, p. 613.]
The remuneration and expenses of the commissioners and the share of the state of Idaho in the expenses of the Columbia Compact Commission shall be appropriated by the legislature to the state department of water resources for these purposes.
[42-3509, added 1963, ch. 310, sec. 6, p. 818.]
All officers of this state are hereby authorized and directed to do all things, falling within their respective provinces and jurisdiction, necessary to or incidental to the carrying out of said compact in every particular. All officers, bureaus, departments and persons of and in the government or administration of this state are hereby authorized and directed, at convenient times and upon the request of the said commission, to furnish said commission with information and data possessed by them or any of them, and to aid said commission by any means lying within their legal powers respectively.
[42-3510, added 1963, ch. 310, sec. 7, p. 818.]
Any powers herein granted to the commission shall be regarded as in aid of and supplemental to and in no case a limitation upon any of the powers vested in said commission by other laws of this state or by the laws of other signatory states or by congress or by the terms of said compact, which shall be liberally construed.
[4203511, added 1963, ch. 310, sec. 8, p. 818.]
Erosion, floodwater, and sediment damages in the watersheds of the rivers and streams of the state of Idaho, causing loss of life and damage to property, constitute a menace to the welfare of the citizens of Idaho; and it is the sense of the legislature of the state of Idaho that the state of Idaho should cooperate with the United States of America, with any political subdivision or public agency in the state of Idaho and with any private person, association, corporation or group of persons, or any agent or agency of any of the foregoing now or hereafter having authority to so cooperate for the purpose of preventing such damages and of furthering the conservation, development, utilization, and disposal of water in Idaho and thereby of preserving and protecting the land and water resources of the state of Idaho.
[42-3601, added 1957, ch. 120, sec. 1, p. 199.]
To effectuate the purposes of the act, as expressed in section 42-3601 hereof, the state of Idaho hereby accepts the provisions of the "Watershed Protection and Flood Prevention Act" (Aug. 4, 1954; 68 Stat. 666), and present and future amendments thereto, and shall, through the director of the department of lands of the state of Idaho, advise, consult and cooperate with any authorized federal officer or agency or any other authorized body or person whomsoever, or any combination thereof, in planning any number of "works of improvement" in Idaho under the said "Watershed Protection and Flood Prevention Act."
[42-3602, added 1957, ch. 120, sec. 2, p. 199; am. 1974, ch. 17, sec. 23, p. 308.]
The state of Idaho, by and through the director of the department of lands with the approval of the board of land commissioners, is authorized to enter into reasonable agreements with any authorized federal officer or agency or any other authorized body or person whomsoever, or any combination thereof, in constructing and maintaining or in any other manner whatsoever completing and effectuating any number of "works of improvement" under the said "Watershed Protection and Flood Prevention Act." Provided, however, that no such agreement shall obligate the state of Idaho to bear more than its reasonable share of the cost of such "works of improvement," considering the benefits accruing to the state of Idaho in relation to benefits accruing to others.
[42-3603, added 1957, ch. 120, sec. 3, p. 199; am. 1974, ch. 17, sec. 24, p. 308.]
For the purpose of executing section 42-3602, Idaho Code, the director of the department of lands is authorized to utilize existing and regular administrative appropriations and personnel. For the purposes of executing the provisions of section 42-3603, Idaho Code, the director is authorized to expend such funds as may now or hereafter be available to him for said purposes and he may likewise expend such moneys, over which he may be given control, as may be granted to the state of Idaho by the United States of America or anyone else for said purposes.
[42-3604, added 1957, ch. 120, sec. 4, p. 199; am. 1974, ch. 17, sec. 25, p. 308.]
This act may be known and cited as the Watershed Improvement District Law.
[42-3701, added 1957, ch. 226, sec. 1, p. 508.]
It is hereby recognized that the protection of life and property from floods, the prevention of damage to lands therefrom, and the orderly development, wise use, conservation and protection of the water resources of the state by the considered and proper use thereof, is of paramount importance to the welfare and prosperity of the people of the state.
To realize these objectives it is hereby declared to be the policy of the state to provide for the prevention of flood damage and the conservation development, utilization and disposal of water in the watersheds of this state and thereby to protect and promote the health, safety and general welfare of the people of this state.
[42-3702, added 1957, ch. 226, sec. 2, p. 508.]
Whenever used or referred to in this act, unless a different meaning clearly appears from the context, the following terms shall have the following meanings:
"District" or "watershed improvement district" means a governmental subdivision of this state and a public body corporate and politic organized in accordance with the provisions of this act for the purposes, with the powers, and subject to the restrictions hereinafter set forth.
"Director" means one (1) of the members of the governing body of a district elected or appointed in accordance with the provisions of this act.
"Commission" or "state soil and water conservation commission" means the agency created in section 22-2718, Idaho Code.
"Petition" means a petition filed under the provisions of section 42-3705, Idaho Code, for the creation of a district.
"Nominating petition" means a petition filed under the provisions of section 42-3706, Idaho Code, to nominate a candidate for the office of director of a watershed improvement district.
"State" means the state of Idaho.
"Landowner" includes any person, firm or corporation who shall hold title to any lands lying within a district organized under the provisions of this act. A contract purchaser who is occupying the land shall be construed as a landowner.
"Qualified elector" means any natural person residing within the boundaries of the state of Idaho, owning land within the boundaries of the district, and qualified under the laws of this state to vote in an election by the people.
[42-3703, added 1957, ch. 226, sec. 3, p. 508; am. 1973, ch. 93, sec. 1, p. 161; am. 2010, ch. 279, sec. 28, p. 751.]
Watershed improvement districts may be established in this state pursuant to this act, and when so established shall be governmental subdivisions of this state and public bodies corporate and politic.
Such watershed improvement districts may be organized within one or more counties of this state and the boundaries of such district may transcend county boundaries. In no instance shall a district involve more than 250,000 acres of private lands.
[42-3704, added 1957, ch. 226, sec. 4, p. 508; am. 1972, ch. 195, sec. 1, p. 483; am. 1989, ch. 295, sec. 1, p. 724.]
Any fifteen (15) owners of land lying within the limits of the territory proposed to be organized into a watershed improvement district may file a petition with the state soil and water conservation commission asking that a watershed improvement district be organized to function in the territory described in the petition. In the event that there are less than fifteen (15) persons owning land lying within the limits of the territory proposed to be organized into a district, then and in that case such petition will be deemed sufficient if it contains the signatures of two-thirds (2/3) of the owners of land and representing two-thirds (2/3) of the acreage of land lying within the limits of the said territory. Such petition shall set forth:
A description of the territory proposed to be organized as a watershed improvement district, which description shall be deemed sufficient if generally accurate.
That there is need, in the interest of the public health, safety, and general welfare for a watershed improvement district to function in the territory described in the petition.
The proposed name of said district.
A request that the state soil and water conservation commission duly define the boundaries for such district; that an election be held within the territory so defined on the question of the creation of a watershed improvement district in such territory.
After such petition has been filed with the state soil and water conservation commission it shall be the duty of the commission to define by metes and bounds or by legal subdivisions the boundaries of such proposed district, and to hold an election, subject to the provisions of section 34-106, Idaho Code, within the proposed district upon the proposition of the creation of the district, and to cause notice of such election to be given. The question shall be submitted by ballots upon which the words "For creation of a watershed improvement district of the lands below described and lying in the county(ies) of …., …. and …." and "Against creation of a watershed improvement district of the lands below described and lying in the county(ies) of …., …. and …." shall appear with a square before each proposition and a direction to insert an X mark in the square before one or the other of said propositions as the voter may favor or oppose creation of such district. The ballot shall set forth the boundaries of such proposed district as determined by the state soil and water conservation commission.
All qualified electors who own land within the proposed district shall be eligible to vote in the election.
The state soil and water conservation commission shall pay all expenses of, and supervise the conduct of, such election. The commission shall conduct the election as provided in chapter 14, title 34, Idaho Code. No informality in the conduct of such election or in any matter relating thereto shall invalidate said election or the result thereof if notice thereof shall have been given substantially as herein provided, and said election shall have been fairly conducted.
If the election shall result in a majority of votes being cast in favor of the creation of such proposed district the state soil and water conservation commission shall proceed with the organization of the district in the manner hereinafter provided, to wit:
The state soil and water conservation commission shall appoint one (1) director to act with the two (2) directors elected as hereinafter provided, which said directors shall be the governing body of the district.
The state soil and water conservation commission shall present to the secretary of state a certificate stating:
(a) That a petition for the creation of said district was filed with the state soil and water conservation commission.
(b) The name and residence of the directors appointed by said commission.
(c) The name which is proposed for said district.
(d) That an election on such petition was held, and that the majority of votes cast in said election favored the formation of the district.
The secretary of state shall receive, file and record said certificate of the state soil and water conservation commission, and when said certificate shall be filed and recorded the district shall constitute a governmental subdivision of this state and a public body corporate and politic. The secretary of state shall make and issue to the said directors a certificate of the due organization of the said district.
[42-3705, added 1957, ch. 226, sec. 5, p. 508; am. 1995, ch. 118, sec. 72, p. 487; am. 2010, ch. 279, sec. 29, p. 751.]
After the date of issuance of the secretary of state of a certificate of organization of a watershed improvement district nominating petitions may be filed with the state soil and water conservation commission to nominate candidates for directors of such district. The state soil and water conservation commission shall give notice of an election to be held, subject to the provisions of section 34-106, Idaho Code, for the election of two (2) directors for the district. The names of all nominees on behalf of whom such nominating petitions have been filed in the manner provided in section 34-1404, Idaho Code, shall appear arranged in the alphabetical order of the surnames upon ballots with a square before each name, and direction to insert an X mark in the square before any two (2) names to designate the voter’s preference. All qualified electors who own land or reside within the proposed district shall be eligible to vote in said election. The two (2) candidates who shall receive the largest number respectively of the votes cast in such election shall be elected for such district. The state soil and water conservation commission shall pay all the expenses of such election, supervise the conduct thereof, and publish the results thereof in accordance with the provisions of chapter 14, title 34, Idaho Code. All elections in existing districts following the first election shall be conducted by the district directors of the district involved who shall give notice of such elections and who shall bear the cost thereof.
In any election for director, if after the deadline for filing a declaration of intent as a write-in candidate, it appears that the number of qualified candidates who have been nominated for director positions is equal to the number of directors to be elected, it shall not be necessary for the candidates to stand for election, and the board of directors shall declare such candidates elected as directors, and the secretary of the district shall immediately make and deliver to such persons certificates of election.
[42-3706, added 1957, ch. 226, sec. 6, p. 508; am. 1995, ch. 118, sec. 73, p. 489; am. 2010, ch. 279, sec. 30, p. 753.]
The governing body of the district shall consist of three (3) directors elected or appointed as provided hereinabove. The director appointed by the commission shall be an owner of land within the district and shall be a person who by training and experience is qualified to perform the specialized service which will be required in the performance of his duties hereunder. The term of office of each director shall be four (4) years, except that the director first appointed by the state soil and water conservation commission shall be designated to serve for a term of two (2) years from the date of his appointment. A director shall hold office until his successor has been elected or appointed, and has qualified. Vacancies shall be filled for an unexpired term by a majority of the directors duly qualified and acting at the time the vacancy shall arise. A majority of the directors shall constitute a quorum and the concurrence of a majority in any matter within their duties shall be required for its determination. A director shall receive no compensation for his service, but shall be entitled to expenses, including traveling expenses necessarily incurred in the discharge of his duties.
The directors may employ a secretary, technical experts, and such other employees, permanent and temporary, as they may require, and shall determine their qualifications, duties, and compensation. The directors may employ their own counsel and legal staff. The directors may delegate to their chairman, to one (1) or more directors, or to agents or employees such powers and duties as they may deem proper and necessary. The directors shall furnish to the state soil and water conservation commission, upon request, copies of such documents or other information concerning the directors’ activities as said commission may require in the performance of its duties under this chapter. The directors shall provide for the keeping of a record of all proceedings, resolutions, regulations and orders issued or adopted; shall provide for an annual audit of its accounts, and shall provide for the execution of surety bonds by any employee or officer who shall be entrusted with funds or property of the district.
[42-3707. added 1957, ch. 226, sec. 7, p. 508; am. 2010, ch. 279, sec. 31, p. 753.]
The directors of a watershed improvement district shall have power:
To levy and cause to be collected assessments on real property within the district in an amount not to exceed six hundredths of one per cent (.06%) of the market value for assessment purposes on all taxable property within the district, for the purpose of general administration and operation and maintenance of the district and in addition thereto to separately levy and cause to be collected assessments on real property within the district in an amount not to exceed twenty hundredths of one per cent (.20%) of the market value for assessment purposes on all taxable property within the district for construction of structural works of improvement. Before a levy can be made for any purpose, an election, subject to the provisions of section 34-106, Idaho Code, as herein provided must be held, and the provisions as outlined under sections 42-3712, 42-3713 and 42-3714, Idaho Code, must be complied with, and assessments can only be levied against lands to be directly benefited.
To conduct surveys, investigations and research relating to floodwater, sediment damage and the conservation, utilization, and disposal of water in the district, and the structural works of improvement needed.
To obtain options upon and acquire by purchase, exchange, lease, gift, grant, bequest, devise, or otherwise, any property, real or personal, and improve any properties acquired; to receive income from such properties and to expend such income in carrying out the purposes and provisions of this chapter; to sell, lease, or otherwise dispose of any of its property or interest therein in furtherance of the purposes and provisions of this chapter.
To develop comprehensive plans for the prevention of floodwater and sediment damage and the conservation, development, utilization, and disposal of water within the district, which plans shall specify the acts, procedures, performances and avoidances which are necessary for effectuation of such plans.
To construct, operate and maintain structural works of improvement for the prevention of floodwater and sediment damages, and the conservation, development, utilization, and disposal of water as provided for in the act of the congress of the United States known as the Watershed Protection and Flood Prevention Act (U.S.C., tit. 16, sections 1001-1008) and acts amendatory thereto.
To have the right of eminent domain with the power to cause to be condemned and appropriated for the use of the district in the construction, operation, maintenance and upkeep of its structures, waterways, dikes, dams, basins, or any other use necessary in the carrying out of the provisions of this chapter upon the payment of just compensation therefor.
To borrow money and to issue negotiable coupon bonds, which bonds shall bear interest, and which bonds shall be due and payable not later than thirty (30) years from the date of issuance, or at such earlier date as may be determined by the directors. The form and terms of said bonds, including their payment and redemption prior to maturity, shall be determined by the directors. Such bonds as may be issued shall be payable solely out of and from the assessments levied upon and a lien upon the lands within the district as provided in this chapter. Such bonds may be issued by the directors only upon the holding of an election within the district as provided by law and upon such election resulting in two-thirds (2/3) of the property owners, and representing at least fifty-one per cent (51%) of the land to be benefited, casting their ballots in favor thereof.
To enter into contracts or agreements with the United States or any of its officers, agents, or subdivisions, or the state of Idaho or any of its officers, agents or political subdivisions, and to cooperate with such governments, persons or agencies in effectuating, promoting and accomplishing the purposes of this chapter.
To bear its allocated share of the cost of any project resulting from any contract or agreement entered into as provided in subsection 8. of this section.
To take over, administer and maintain pursuant to any agreement or contract entered into in accordance with the provisions of subsection 8. of this section any watershed improvement project within its boundaries undertaken in cooperation with the United States or any of its agencies, or with the state of Idaho or any of its agencies, or any combinations thereof.
To accept donations, gifts and contributions in money, services, or materials, or otherwise, from the United States or any of its agencies, or the state of Idaho or any of its agencies or any combinations thereof, and to expend such moneys, services, or materials in carrying on its operations.
To sue and be sued in the name of the district; to have a seal, which seal shall be judicially noticed; to have perpetual succession unless terminated as hereinafter provided; to make and execute contracts and other instruments necessary or convenient to the exercise of its powers, and to promulgate, amend and repeal rules not consistent with the provisions of this chapter.
To exercise all other powers necessary, convenient or incidental to carrying out the purposes and provisions of this chapter.
[42-3708, added 1957, ch. 226, sec. 8, p. 508; am. 1970, ch. 133, sec. 8, p. 309; am. 1980, ch. 136, sec. 5, p. 298; am. 1995, ch. 82, sec. 19, p. 231; am. 1995, ch. 118, sec. 74, p. 489; am. 1996, ch. 322, sec. 40, p. 1070.]
Before any contract shall be let or work begun upon any improvement or project within the district the cost of which cannot be exclusively financed by funds on hand, grants in aid, or gifts to the district, or before any contract may be entered into by the district with any other government agency or body which will obligate the district to contribute financially beyond the extent of the funds of the district then on hand, it shall be the duty of the directors to file with the director of the department of water resources a statement of the proposed improvement or project describing in detail such improvement or project, its scope, geographical location, estimated cost, economic feasibility, the tracts of land considered benefited by such improvement or project, and the proposed method of financing the costs of such improvement or project. The statement shall be accompanied by a general print of the area within the district showing thereon the area which will be affected by such improvement or project, and the plans and specifications for the said improvement or project.
[42-3709, added 1957, ch. 226, sec. 9, p. 508.]
Not sooner than sixty (60) days after the submission of the plans for any project to the director of the department of water resources as set forth in section 42-3709, and before any contract shall be let or work begun upon any improvement or project within the district the cost of which cannot be exclusively financed by funds on hand, grants in aid, or gifts to the district, or before any contract may be entered into by the district with any governmental agency or body which will obligate the district to contribute financially beyond the extent of funds of the district then on hand, it shall be the duty of the directors to set a time and place within the district for a public hearing upon said proposal, and the directors shall cause a notice thereof to be published in a newspaper of general circulation within the district not less than three (3) times, at least ten (10) days before the date set for the hearing, and in addition thereto shall post a copy of said notice in at least one (1) public place within the district.
At the time and place fixed for such hearing any owner of land situated within the district, or any other interested person, may appear and be heard as to his objections to the said proposal.
Following the said public hearing the directors shall, by resolution, either affirm the proposal with or without modification or amendments, or disapprove the proposal stating therein their findings as to the economic feasibility of the proposed improvement or project, the probable cost of said improvement or project, the benefits to be derived therefrom, and whether or not the benefits accruing to lands within the district would exceed the cost of such improvement or project, whether the benefits will be conferred upon all lands within the district or upon only certain lands in the district, in which latter case the lands to be benefited shall be described as to boundaries, ownership, and approximate acreage, and the proposed method of financing such improvement or project.
[42-3710, added 1957, ch. 226, sec. 10, p. 508.]
If the directors, by resolution, determine that the proposed improvement or project should be constructed and that the costs of said improvement or project should be paid by special assessment against the lands benefited by said improvement or project, the directors shall appoint three (3) disinterested residents of the state to act as appraisers. Said appraisers shall inspect the plans and specifications of the said improvement or project and examine all lands likely to be benefited by such project. The appraisers shall make and file with the directors a detailed report showing all tracts of land within the district found to be benefited, together with the acreage thereof, and the name of the record owner, the amount each tract will be benefited, and the amount of assessment to be levied against each such tract.
[42-3711, added 1957, ch. 226, sec. 11, p. 508.]
Upon receiving the report of the appraisers the directors shall fix a time and place within the district for hearing any complaint that may be made regarding the benefits appraised to any tract of land or the assessment proposed to be levied against any tract of land. A notice of such hearing shall be given as provided in section 42-3710.
At the time and place fixed for such hearing the directors shall consider the report of the appraisers and consider and hear any objections filed or voiced thereto.
The directors, by resolution, shall then reject the report of the appraisers or accept the same and ratify it with or without modification or amendments.
[42-3712, added 1957, ch. 226, sec. 12, p. 508.]
Any owner of land or person having an interest therein upon which an assessment is proposed to be levied may, within ninety (90) days, take an appeal from the resolution of the directors accepting or ratifying the report of the appraisers, or from the resolution of the directors determining that the proposed improvement or project should be constructed by filing a petition with the district court of the county within which the property is located. Such petition shall set forth objections to the resolution of the directors determining that such project or improvement should be constructed, or to the resolution affirming the report of the appraisers. The said court may require the party to frame the issues, and shall set a time for a hearing. Upon demand of any petitioner the court shall impanel a jury to determine such issues of fact as may be framed. The report of the appraisers as confirmed by the directors shall be prima facie evidence of the facts therein determined, and the petitioner shall have the burden of proof as to such issues. After hearing the cause, either with or without a jury, the court shall make and enter findings, judgment and order confirming the resolution of the directors, with or without amendments or modifications, or may declare the same void in whole.
[42-3713, added 1957, ch. 226, sec. 13, p. 508.]
Upon the entering of the resolution and no appeal therefrom being filed within the time allowed for such appeal the directors shall transmit to the county auditor a list of all tracts of land so benefited, together with the amount of the assessment upon each tract, and the name of the owner or owners of each said tract. The county auditor shall immediately enter the same upon the tax rolls of the county against the designated lands, together with the amounts of said assessments. Said assessments shall be subject to the same interest and penalties in case of delinquency as in the case of general taxes, and shall be collected in the same manner as in the case of general taxes, and the lands sold for the collection of said assessment shall be subject to the same right of redemption as lands sold for the collection of general taxes; provided, that the said assessments shall not become due and payable except at such time or times and in such amounts as may be designated by the directors, which designation shall be made to the county auditor by the directors by serving written notice upon the county auditor designating the time and the amount of the assessment, and the amount so designated shall be added by the auditor to the general taxes of the owner or owners of said lands and collected therewith, and providing further, that no one yearly call for assessment by said directors shall be in an amount to exceed ten per cent (10%) of the actual amount necessary to defray the costs of the construction of the said improvement or project. The assessments so levied shall constitute liens against the designated tracts of land.
[42-3714, added 1957, ch. 226, sec. 14, p. 508.]
In case of lands belonging to the state, county, school district, or other public corporations are benefited by any improvement or project instituted under the provisions of this act, all benefits shall be assessed against said lands and the same shall be paid by the proper authorities at the same time as the assessments are called and paid in the case of private persons.
[42-3715, added 1957, ch. 226, sec. 15, p. 508.]
Additional assessments for the proper maintenance and/or operation of any improvement or project constructed within the district pursuant to this act may be levied against lands benefited by the improvement or project at the ratio or proportion established in the original assessment. Such aditional assessments shall be made subject to the same hearing, determinations, confirmance and right of appeal set forth in sections 42-3712, 42-3713 and 42-3714.
[42-3716, added 1957, ch. 226, sec. 16, p. 508.]
(1) At any time after three (3) years after the organization of a district under the provisions of this chapter any twenty-five (25) qualified electors or owners of land lying within the boundaries of such district or, if less than twenty-five (25) owners of land or qualified electors reside within the boundaries of such district it would be deemed sufficient if two-thirds (2/3) of the resident group, may file a petition with the state soil and water conservation commission requesting that the operations of the district be terminated and the existence of the district discontinued. After such petition has been received by the state soil and water conservation commission it shall give notice of the holding of an election, subject to the provisions of section 34-106, Idaho Code, which the said commission shall supervise and govern the conduct in accordance with the provisions of chapter 14, title 34, Idaho Code. The question to be submitted by ballots upon which the words "For terminating the existence of the (name of the watershed improvement district to be here inserted)" and "Against terminating the existence of the (name of the watershed improvement district to be inserted here)" shall appear with a square before each proposition, and a direction to insert an X mark in the square before one or the other of said propositions as the voter may favor or oppose discontinuance of such district. All qualified electors who own land or reside within the proposed district shall be eligible to vote in said election. No informality in the conduct of such election or in any matters relating thereto shall invalidate said election or the result thereof if notice thereof shall have been given as herein provided, and said election shall have been fairly conducted.
The state soil and water conservation commission shall certify the result of such election to the directors of the district. If the state soil and water conservation commission shall certify that a majority of the votes cast in said election favor the discontinuance of the existence of the district, the directors of the district shall forthwith proceed to terminate the affairs of the district. Any moneys remaining in the treasury of said district following the winding up of the affairs of the district shall be paid by the directors into the state treasury. The directors shall file an application duly verified with the secretary of state for the discontinuance of such district which shall recite that the affairs of the district have been wound up, and shall set forth a full accounting of the winding up of the affairs of said district. The secretary of state shall issue to the directors a certificate of dissolution, and shall record said certificate in his office.
The state soil and water conservation commission shall not entertain petitions for the discontinuance of any district nor conduct elections upon such petitions more often than once in three (3) years.
(2) Provided however, any district that fails or has ceased to function for two (2) or more years may be dissolved by the board or boards of county commissioners of the county or counties in which it is located. The county commissioners may initiate such action upon their own volition, or the action may be initiated by petition.
[42-3717, added 1957, ch. 226, sec. 17, p. 508; am. 1995, ch. 118, sec. 75, p. 491; am. 2010, ch. 279, sec. 32, p. 754; am. 2016, ch. 295, sec. 1, p. 826.]
The legislature of the state of Idaho hereby declares that the public health, safety and welfare requires that the stream channels of the state and their environments be protected against alteration for the protection of fish and wildlife habitat, aquatic life, recreation, aesthetic beauty, and water quality. No alteration of any stream channel shall hereafter be made unless approval therefor has been given as provided in this act.
[42-3801, added 1971, ch. 337, sec. 1, p. 1304.]
Whenever used in this act, the term:
(a) "Person" means any individual, partnership, company, corporation, municipality, county, state or federal agency, or other entity proposing to alter a stream channel.
(b) "Alter" means to obstruct, diminish, destroy, alter, modify, relocate, or change the natural existing shape or direction of water flow of any stream channel within or below the mean high watermark thereof.
(c) "Board" means the Idaho water resource board.
(d) "Stream channel" means a natural watercourse of perceptible extent, with definite bed and banks, which confines and conducts continuously flowing water. Ditches, canals, laterals and drains that are constructed and used for irrigation or drainage purposes are not stream channels.
(e) "Department" means the Idaho department of water resources.
(f) "Director" means the director of the Idaho department of water resources.
(g) "Plans" means maps, sketches, engineering drawings, word descriptions and specifications sufficient to describe the extent, nature and location of the proposed stream channel alteration and the proposed method of accomplishing same.
(h) "Mean high watermark" means a water level corresponding to the natural or ordinary high watermark and is the line which the water impresses on the soil by covering it for sufficient periods of time to deprive the soil of its terrestrial vegetation and destroy its value for commonly accepted agricultural purposes.
[42-3802, added 1971, ch. 337, sec. 2, p. 1304; am. 1974, ch. 20, sec. 33, p. 533; am. 1994, ch. 292, sec. 1, p. 912; am. 2004, ch. 191, sec. 2, p. 601.]
(a) No person shall engage in any project or activity which will alter a stream channel without first applying to and receiving a permit therefor from the director. Such application shall be submitted not less than sixty (60) days prior to the intended date of commencement of construction of such stream channel alteration and shall be upon forms to be furnished by the director or in such other form as deemed appropriate by memorandum of agreement with other state and federal agencies and shall be accompanied by plans of the proposed stream channel alteration and the statutory filing fee.
(b) The board shall provide that each permit granted shall show whether it constitutes a permit from the department of lands as authorized by the department of lands, or whether an additional permit from the department of lands shall be required.
(c) The board may adopt, revise and rescind such rules and regulations and issue such general orders as may be necessary to effectuate the purposes and policy of this chapter within the limitations and standards set forth in this chapter. Rules, regulations and orders adopted or issued pursuant to this section may include, but are not limited to, minimum standards to govern projects or activities for which a permit or permits have been received under this chapter and regulations governing procedures for processing applications and issuing permits under this chapter. Minimum standards and procedural regulations shall not be adopted pursuant to this section until after they have been offered for review and comment to other state agencies having an interest in activities regulated under this chapter. Any standards, rules, regulations and orders adopted or issued pursuant to this section shall be promulgated in accordance with the provisions of chapter 52, title 67, Idaho Code, to the extent that the provisions of chapter 52, title 67, Idaho Code, are not inconsistent herewith.
(d) The board may, by regulation, dispense with procedural requirements for permit application and approval contained in this chapter for projects and activities which, in all respects, at least meet minimum standards adopted pursuant to this section.
[42-3803, added 1971, ch. 337, sec. 3, p. 1304; am. 1972, ch. 137, sec. 1, p. 303; am. 1974, ch. 20, sec. 34, p. 533; am. 1976, ch. 150, sec. 1, p. 539; am. 1994, ch. 292, sec. 2, p. 913.]
Upon the receipt of any application with accompanying plans, it shall be the duty of the director to examine same and to furnish copies of the application and plans to, and consult with, other state agencies having an interest in the stream channel to determine the likely effect of the proposed stream channel alteration upon the fish and wildlife habitat, aquatic life, recreation, aesthetic beauty, and water quality values of the stream. The director shall furnish a copy of each application and all accompanying materials to the department of lands. Within twenty (20) days of the receipt of copies of such application and plans from the director, such other state agencies shall notify the director whether the proposed stream channel alteration will have an unreasonably detrimental effect upon these stream values and shall include with such notification recommendations of alternate plans, if any, determined by such agency to be reasonable to accomplish the purpose of the proposed stream channel alteration without adversely affecting such stream values.
[42-3804, added 1971, ch. 337, sec. 4, p. 1304; am. 1974, ch. 20, sec. 35, p. 533; am. 1976, ch. 150, sec. 2, p. 540.]
Based upon his own investigation and the recommendations and alternate plans of other state agencies, the director shall prepare and forward to the applicant his decision approving the application in whole or in part or upon conditions, or rejecting the application. With regard to applications which could, if issued, affect endowment lands, the director shall deny such applications upon the objection of the state department of lands, or modify the same as recommended by the department. Within fifteen (15) days of the date of mailing of the decision, the applicant shall notify the director if it refuses to modify its plans in accordance with such decision or that it requests a hearing before the board thereon. If requested, such hearing shall be held in accordance with the provisions of chapter 52, title 67, Idaho Code, and rules adopted by the board. The board shall have power to administer oaths and to require the attendance of such witnesses and the production of such books, records and papers as it may desire at the hearing, and for that purpose, the board may apply to the court for subpoena for any witnesses or a subpoena duces tecum to compel the production of any books, records or papers which shall be served and returned in the same manner as a subpoena in a civil case. In case of any disobedience or neglect to obey a subpoena or subpoena duces tecum, it shall be the duty of the district court in any county of this state in which disobedience, neglect or refusal occurs, or any judge thereof, on application by the board, to compel obedience by proceedings for contempt. Upon the conclusion of the hearing and completion of any investigation conducted by the director the board shall enter its findings in writing approving the decision of the director on the application and plans in whole or in part, or upon conditions, or rejecting the decision of the director on said application and plans for such proposed stream channel alteration.
A copy of the board’s findings on the director’s decision shall be mailed to the applicant and to each person or organization who appeared at the hearing and gave testimony in support of or in opposition to the proposed stream channel alteration. Any applicant or other person appearing at a hearing shall have the right to have the proceedings of the board and the decision of the director reviewed by the district court in the county where the stream channel alteration is proposed. With the exception that the matter may be reviewed by the district court in the county where the stream channel alteration is proposed, judicial review shall be had pursuant to chapter 52, title 67, Idaho Code.
[42-3805, added 1971, ch. 337, sec. 5, p. 1304; am. 1974, ch. 20, sec. 36, p. 533; am. 1976, ch. 150, sec. 3, p. 541; am. 1980, ch. 238, sec. 21, p. 550; am. 1993, ch. 216, sec. 39, p. 622.]
This act shall not operate or be so construed as to impair, diminish, control or divest any existing or vested water rights acquired under the laws of the state of Idaho or the United States, nor to interfere with the diversion of water from streams under existing or vested water right or water right permit for irrigation, domestic, commercial or other uses as recognized and provided for by Idaho water laws.
No permit shall be required by the state or any agency or political subdivision thereof, from a water user or his agent to clean, maintain, construct in, or repair any stream channel, diversion structure, canal, ditch, drain or lateral. No permit shall be required by the state or any agency or political subdivision thereof, from a water user or his agent to remove any obstruction from any stream channel, if such obstruction interferes with, or is likely to interfere with, the delivery of, or use of, water under any existing or vested water right, or water right permit.
Nothing in this section shall be construed to affect the provisions of chapter 10, title 46, Idaho Code, or to exempt a water user or his agent from compliance with any applicable local flood plain ordinance adopted pursuant to section 46-1022, Idaho Code.
[42-3806, added 1971, ch. 337, sec. 6, p. 1304; am. 2004, ch. 191, sec. 3, p. 602; am. 2011, ch. 261, sec. 1, p. 707.]
This act shall not apply to any existing, proposed, or future reservoir projects. This act shall not apply to that portion of any continuous waterway system which will float commercial tug and barge vehicles to ports handling transoceanic traffic, and which is within or adjacent to any port district now existing or hereafter formed under the provisions of title 70, Idaho Code.
[42-3807, added 1971, ch. 337, sec. 7, p. 1304.]
When emergency situations exist requiring immediate action to protect life or property including growing crops, the director may waive the provisions of this act upon request; providing, however, that the extent of stream channel alteration shall be limited only to that amount of work deemed necessary by the director to safeguard life or property including growing crops during the period of emergency.
[42-3808, added 1971, ch. 337, sec. 8, p. 1304.]
The director of the department of water resources is hereby vested with the power and authority to enforce the provisions of this chapter and rules and regulations promulgated pursuant to it. When the director of the department of water resources determines that any person is in substantial violation of any provision of this chapter or any rule, permit, certificate, condition of approval or order issued or promulgated pursuant to this chapter, the director may commence an administrative enforcement action by issuing a written notice of violation in accordance with the provisions of section 42-1701B, Idaho Code. Provided however, that no civil or administrative proceeding may be brought to recover for a violation of any provision of this chapter or a violation of any rule, permit or order issued or promulgated pursuant to this chapter more than two (2) years after the director had knowledge or ought reasonably to have had knowledge of the violation. The director shall have authority and it shall be his duty to seek a temporary injunction from the appropriate district court to restrain a person from altering a stream channel until approval therefor has been obtained by the person as provided in this act.
[42-3809, added 1971, ch. 337, sec. 9, p. 1304; am. 1972, ch. 137, sec. 2, p. 303; am. 1974, ch. 20, sec. 37, p. 533; am. 1978, ch. 327, sec. 1, p. 822; am. 1980, ch. 331, sec. 2, p. 855; am. 1994, ch. 292, sec. 3, p. 914; am. 1998, ch. 173, sec. 10, p. 611; am. 2012, ch. 121, sec. 1, p. 337; am. 2021, ch. 65, sec. 5, p. 202.]
Any party convicted of unlawful stream channel alteration shall, in addition to the penalties provided for in section 42-3809 of this act, be directed by the court to restore the stream channel to as near its original condition as possible or to effect such other measures as recommended by the director toward mitigation of damages.
[42-3810, added 1971, ch. 337, sec. 10, p. 1304.]
Any person who violates any provision of this act or who violates any regulation, rule, order or standard of the board or director relating to the use of vacuum or suction dredges capable of moving two (2) or less cubic yards of material per hour shall be guilty of a misdemeanor.
[42-3811, added 1980, ch. 331, sec. 3, p. 856.]
The legislature of the state of Idaho hereby declares the ground water of this state to be a public resource which must be protected against unreasonable contamination or deterioration of quality to preserve such waters for diversion to beneficial uses; that in order to protect such waters against contamination or deterioration in quality it is necessary that the construction and use of injection wells be controlled as provided in this chapter.
[42-3901, added 1971, ch. 301, sec. 1, p. 1235; am. 1984, ch. 155, sec. 1, p. 372.]
Whenever used in this chapter:
(1) "Aquifer" means any geologic formation that will yield water to a well in sufficient quantities to make production of water from the formation feasible for beneficial use, except when the water in such formation results solely from injection through a deep or shallow injection well.
(2) "Deep injection well" means an injection well that is more than eighteen (18) feet in vertical depth below land surface.
(3) "Director" means the director of the department of water resources.
(4) "Drinking water source" means an aquifer that contains water having less than ten thousand (10,000) mg/l total dissolved solids and has not been exempted from this designation by the director of the department of water resources.
(5) "Fluid" means any material or substance that flows or moves whether in a semisolid, liquid, sludge, gaseous or any other form or state.
(6) "Formation" means a body of consolidated or unconsolidated rock characterized by a degree of lithologic homogeneity that is mappable at the earth’s surface or traceable in the subsurface.
(7) "Hazardous waste" means any fluid or combination of fluids, excluding radioactive wastes, that because of quantity, concentration or characteristics (physical, chemical or biological) may:
(a) Cause or significantly contribute to an increase in deaths or an increase in serious, irreversible or incapacitating reversible illness; or
(b) Pose a substantial threat to human health or to the environment if improperly treated, stored, disposed of, or managed. Such wastes include but are not limited to materials that are toxic, corrosive, ignitable, or reactive or materials that may have mutagenic, teratogenic, or carcinogenic properties, but do not include solid or dissolved material in domestic sewage or solid or dissolved material in irrigation return flows.
(8) "Injection" means the subsurface emplacement of fluids through an injection well, but excludes the following:
(a) The underground injection of natural gas for purposes of storage; and
(b) The underground injection of fluids or propping agents, other than diesel fuels, pursuant to hydraulic fracturing operations related to oil, gas or geothermal production activities.
(9) "Injection well" means any feature that is operated to allow injection that also meets at least one (1) of the following criteria:
(a) A bored, drilled or driven shaft whose depth is greater than the largest surface dimension;
(b) A dug hole whose depth is greater than the largest surface dimension;
(c) An improved sinkhole; or
(d) A subsurface fluid distribution system.
Provided however, that "injection well" does not mean or include any well used for oil, gas or geothermal production activities, other than one into which diesel fuels are injected pursuant to hydraulic fracturing operations.
(10) "Irrigation waste water" means excess surface water from agricultural fields generated during any agricultural operation, including runoff of irrigation tailwater, as well as natural drainage resulting from precipitation, snowmelt and floodwaters.
(11) "Licensed driller" means any person holding a valid license to drill water wells in Idaho as provided and defined in section 42-238, Idaho Code.
(12) "Operate" means to allow fluids to enter an injection well by action or by inaction of the operator.
(13) "Operator" means any individual, group of individuals, partnership, company, corporation, municipality, county, state agency, taxing district or federal agency who operates or proposes to operate any injection well.
(14) "Owner" means any individual, group of individuals, partnership, company, corporation, municipality, county, state agency, taxing district, or federal agency owning land on which any injection well exists or is proposed to be constructed.
(15) "Radioactive material" means any material, solid, liquid or gas that emits radiation spontaneously.
(16) "Radioactive waste" means any fluid that contains radioactive material in concentrations that exceed those established for discharges to water by 10 CFR 20.
(17) "Sanitary waste" means any fluid generated through residential (domestic) activities, such as food preparation, cleaning and personal hygiene. The term does not include industrial, municipal, commercial or other nonresidential process fluids.
(18) "Shallow injection well" means an injection well that is less than or equal to eighteen (18) feet in vertical depth below land surface.
(19) "Surface runoff water" means runoff water from the natural ground surface and cropland. Runoff from urbanized areas, such as streets, parking lots, airports, and runoff from animal feedlots, agricultural processing facilities and similar facilities are not included within the scope of this term.
[42-3902, added 1971, ch. 301, sec. 2, p. 1235; am. 1984, ch. 155, sec. 2, p. 372; am. 2001, ch. 103, sec. 84, p. 325; am. 2007, ch. 83, sec. 9, p. 232; am. 2011, ch. 110, sec. 2, p. 287; am. 2012, ch. 111, sec. 5, p. 306; am. 2013, ch. 44, sec. 1, p. 91; am. 2014, ch. 107, sec. 1, p. 313; am. 2024, ch. 20, sec. 1, p. 161.]
Construction of an injection well to be used for injection of hazardous wastes or of radioactive wastes into or above a drinking water source is prohibited. Injection of hazardous wastes or of radioactive wastes through an existing injection well into or above a drinking water source is prohibited. Any such injection shall subject any person responsible for said activity to the sanctions and penalties of this chapter in addition to all other applicable sanctions and penalties provided by statute or the common law.
[42-3902A, added 1984, ch. 155, sec. 3, p. 374.]
No new deep injection well shall be constructed after the effective date of this act unless a permit therefor has been issued by the director of the department of water resources. No deep injection well existing on the effective date of this act shall be modified after the effective date of this act unless a permit therefor has been issued by the director. No deep injection well existing on the effective date of this act shall continue to be used and maintained unless a permit has been issued by the director.
[42-3903, added 1971, ch. 301, sec. 3, p. 1235; am. 1974, ch. 20, sec. 38, p. 533; am. 2011, ch. 110, sec. 3, p. 288; am. 2024, ch. 20, sec. 2, p. 163.]
Construction and use of shallow injection wells shall be authorized by rules and regulations adopted by the water resource board. Shallow injection wells used for the disposal of nonhazardous and nonradioactive sanitary wastes generated in, on, or in conjunction with a single family noncommercial dwelling are exempt from the authorization requirements of this chapter, but shall be subject to the applicable requirements of the Idaho environmental protection and health act of 1972, sections 39-101, et seq., Idaho Code.
[42-3903A, added 1984, ch. 155, sec. 4, p. 374.]
(1) The owner or operator shall make application to the director of the department of water resources for a permit as provided in this chapter. When a facility is owned by one (1) person but operated by another, it shall be the operator’s duty to obtain a permit. Such application shall be upon forms furnished by the director which shall require information concerning the location and description of the injection well, the quantity, quality, and nature of the material being or proposed to be injected, the description of the underground formation and aquifer into which the material is proposed to be or is being injected, the availability of alternative sources of disposal, and such other information as will enable the director to determine the effect of injection upon the quality of the ground water, the effect upon the beneficial uses of said ground water, the effect upon the public health and the effect upon public benefits derived therefrom, if any. Such application shall be submitted complete with fees as provided in this chapter. Mine shafts used for the disposal of wastes resulting from the mining and concentration process shall be exempt from the permit requirements of this chapter until an inventory and assessment of the contamination potential posed by such operation is completed.
(2) Owners of new shallow injection wells drilled after July 1, 1997, shall submit a notice of construction form to the department of water resources no later than thirty (30) days prior to commencement of construction for each new well. The notice of construction form shall be submitted with the fee as provided in this chapter on a form provided by the department of water resources.
[42-3904, added 1971, ch. 301, sec. 4, p. 1235; am. 1974, ch. 20, sec. 39, p. 533; am. 1984, ch. 155, sec. 5, p. 374; am. 1997, ch. 208, sec. 1, p. 624; am. 2011, ch. 110, sec. 4, p. 289.]
(1) Fees provided for in this section shall accompany all applications and notice of construction forms. No such application or notice of construction form shall be accepted unless accompanied by a filing fee as provided in this section. A separate application shall be filed for each deep injection well and each shallow injection well for which a permit is required by the rules adopted by the water resource board. The filing fee for each deep injection well requiring a permit shall be one hundred dollars ($100), payable to the department of water resources.
(2) The notice of construction form for each new shallow injection well shall be accompanied by a fee of seventy-five dollars ($75.00) payable to the department of water resources.
(3) All fees received under the provisions of this chapter are deemed to be nonrefundable and shall be transmitted to the state treasurer for deposit in the water administration account as established under the provisions of section 42-238a, Idaho Code, except that fees submitted with applications that do not require a permit shall be returned to the applicant. Fees collected may be used by the director of the department of water resources to carry out the provisions of this chapter.
[42-3905, added 1971, ch. 301, sec. 5, p. 1235; am. 1972, ch. 180, sec. 1, p. 460; am. 1974, ch. 20, sec. 40, p. 533; am. 1984, ch. 155, sec. 6, p. 375; am. 1997, ch. 208, sec. 2, p. 625; am. 2011, ch. 110, sec. 5, p. 289; am. 2013, ch. 44, sec. 2, p. 93; am. 2024, ch. 20, sec. 3, p. 163.]
(1) Upon receipt of an application or other notice to construct, maintain, modify or abandon an injection well, the director shall give public notice as required by the rules and regulations promulgated under authority of this chapter.
(2) The director shall examine each application and shall make an investigation to determine what effect the use of the proposed or existing injection well will have or is having upon the rights of others to use water for beneficial purposes. For purposes of such investigation, the director may conduct a fact finding or investigative hearing. He may apply to the district court of the county in which the well is located for subpoenas requiring the appearance of witnesses and production of books, records, and papers; or he may administer oaths, and take testimony at any place and time. Employees and agents of the department of water resources may make reasonable entry upon any lands in the state for purposes of making investigations and surveys, or for other purposes necessary to carry out the intent of this chapter.
[42-3907, added 1971, ch. 301, sec. 7, p. 1235; am. 1974, ch. 20, sec. 42, p. 533; am. 1984, ch. 155, sec. 8, p. 375.]
(1) If the director of the department of water resources determines the use of the proposed or existing injection well will not affect the rights of others to use water for beneficial purposes, the director shall issue a permit approving the construction, modification or continued operation of such well. Such permit shall contain conditions, if any, determined to be necessary to protect the public interest in the ground water resource, including but not limited to the method and manner of operation of the injection well, the period during which the injection well may be operated, a date when such permit shall expire, and periodic reports to the department of water resources of the quality and quantity of the fluids injected. No deep injection well or shallow injection well, as may be required by rules and regulations adopted under this chapter, shall be used unless a valid permit is in effect in accordance with this chapter.
(2) If the director of the department of water resources determines the use of the proposed or existing injection well will interfere or is interfering with the right of the public to withdraw water for beneficial uses and the director finds there are no overriding needs existing to justify the use of the injection well, the director may reject the application and forward notice of such rejection to the owner or operator by certified mail.
[42-3908, added 1971, ch. 301, sec. 8, p. 1235; am. 1974, ch. 20, sec. 43, p. 533; am. 1984, ch. 155, sec. 9, p. 376; am. 2011, ch. 110, sec. 6, p. 290; am. 2013, ch. 43, sec. 1, p. 90; am. 2024, ch. 20, sec. 4, p. 163.]
Any owner or operator aggrieved by the disapproval of an application or by the conditions imposed in a permit shall upon request therefor in writing within thirty (30) days after receipt of notice of such disapproval or conditional approval, be afforded an opportunity for a hearing before the water resources board, such hearing to be conducted in accordance with chapter 52, title 67, Idaho Code, at a place convenient to the owner or operator. Such hearing shall be held for the purpose of determining whether the permit should be issued or whether the conditions imposed in a permit are reasonable, or whether a change in circumstances warrants a change in the conditions imposed in a valid permit. For purposes of such hearing the water resource board shall have power to administer oaths, examine witnesses, and issue in the name of the board subpoenas requiring testimony of witnesses and the production of evidence relevant to any matter in the hearing. A certified transcript of the proceedings and the evidence received at such hearing shall be maintained by the board. The board shall affirm, modify or reject the director’s decision, and make its decision in the form of an order to the director. Judicial review of a final determination by the board may be secured by the owner or operator by filing a petition for review as prescribed by chapter 52, title 67, Idaho Code, in the district court of the county wherein the injection well is situated. The petition for review shall be served upon the chairman of the water resource board and upon the attorney general as provided by the Idaho rules of civil procedure.
[42-3909, added 1971, ch. 301, sec. 9, p. 1235; am. 1974, ch. 20, sec. 44, p. 533; am. 1984, ch. 155, sec. 10, p. 376.]
When the director of the department of water resources has reason to believe the operation and use of an injection well, for which a permit has been issued in accordance with this chapter, is interfering with the right of the public to withdraw water for beneficial uses, or is causing unreasonable contamination or deterioration of the quality of the ground water below the adopted water quality standards of the board of environmental quality, he may cancel such permit. Prior to the cancellation of such permit there shall be a hearing before the water resource board for the purpose of determining whether or not the permit should be cancelled. At such hearing the director of the department of water resources shall be the complaining party. For purposes of such hearing, the board shall have power to administer oaths, examine witnesses and issue subpoenas requiring testimony of witnesses and production of evidence relevant to any matter in the hearing. The hearing shall be conducted in accordance with chapter 52, title 67, Idaho Code, and the board shall provide the owner or operator whose permit is proposed to be cancelled with reasonable notice and the opportunity to be heard in accordance with chapter 52, title 67, Idaho Code. A certified transcript of the proceedings and the evidence received at such hearing shall be maintained by the board. The board shall affirm, modify or reject the director’s decision, and make its decision in the form of an order to the director. Review of a final determination by the board may be secured by the owner or operator by filing a petition for review as prescribed by chapter 52, title 67, Idaho Code, in the district court of the county wherein the injection well is situated. The petition for review shall be served upon the chairman of the water resource board and upon the attorney general as provided by the Idaho rules of civil procedure.
[42-3910, added 1971, ch. 301, sec. 10, p. 1235; am. 1974, ch. 20, sec. 45, p. 533; am. 1984, ch. 155, sec. 11, p. 377; am. 2001, ch. 103, sec. 85, p. 327.]
Any owner or operator who causes to be constructed or consents either expressly or impliedly to the construction of a new deep injection well without having first obtained a permit therefor from the director of the department of water resources as provided in this chapter shall be guilty of a misdemeanor. Any owner or operator who causes an existing deep injection well to be modified or consents either expressly or impliedly to the modification of an existing deep injection well without having first obtained a permit therefor from the director of the department of water resources as provided in this chapter shall be guilty of a misdemeanor. Any owner or operator who operates and maintains a deep injection well without having first obtained a permit from the director of the department of water resources as provided in this chapter shall be guilty of a misdemeanor. Any owner or operator of an injection well who violates the rules and regulations of the water resource board shall be guilty of a misdemeanor. Each and every day that such activity is carried on in violation of this section shall constitute a separate and distinct offense.
[42-3911, added 1971, ch. 301, sec. 11, p. 1235; am. 1974, ch. 20, sec. 46, p. 533; am. 1984, ch. 155, sec. 12, p. 378; am. 2011, ch. 110, sec. 7, p. 290; am. 2024, ch. 20, sec. 5, p. 164.]
It shall be unlawful for any person not a licensed driller to construct a new deep injection well or modify an existing deep injection well, except that a driller’s license is not required for the construction of a driven mine shaft or dug hole for the purposes of this chapter. All licensed drillers shall obtain a certified copy of the approved permit from the director of the department of water resources prior to construction of any new deep injection well or prior to the modification of any existing deep injection well. Failure by a licensed driller to comply with this section shall constitute cause for revocation of a well driller’s license in accordance with section 42-238, Idaho Code.
[42-3912, added 1971, ch. 301, sec. 12, p. 1235; am. 1974, ch. 20, sec. 47, p. 533; am. 1984, ch. 155, sec. 13, p. 378; am. 2011, ch. 110, sec. 8, p. 290.]
The water resource board shall adopt minimum standards for the construction or abandonment of deep injection wells. Such standards shall require each deep injection well to be so constructed as to protect the ground water of this state from waste and unreasonable contamination. Each licensed well driller or operator will be furnished with a copy of the adopted standards, and will be required to construct each deep injection well drilled after the effective date of said rules and regulations in compliance with the determined standards. Failure by a licensed driller to comply with such standards shall constitute cause for revocation of the well driller’s license in accordance with section 42-238, Idaho Code.
The water resource board shall also adopt minimum standards for the construction and abandonment of shallow injection wells. Any person who constructs or abandons a shallow injection well without complying with such standards shall be guilty of a misdemeanor.
[42-3913, added 1971, ch. 301, sec. 13, p. 1235; am. 1974, ch. 20, sec. 48, p. 533; am. 1984, ch. 155, sec. 14, p. 378; am. 2011, ch. 110, sec. 9, p. 291.]
The provisions of this chapter shall not prevent the present or future use of any existing or proposed injection well which is used exclusively for disposal of irrigation waste water or of surface runoff water where such disposal does not adversely affect drinking water sources, and state or local government entities involved in highway and street construction and maintenance shall be exempt from fees and permit applications for shallow injection wells. The water resource board shall establish criteria and standards for the injection of fluids under the provisions of this chapter which shall not become valid and enforceable until adopted under provisions of the administrative procedures act, chapter 52, title 67, Idaho Code.
[42-3914, added 1971, ch. 301, sec. 14, p. 1235; am. 1974, ch. 20, sec. 49, p. 577; am. 1984, ch. 155, sec. 15, p. 379.]
The water resource board shall adopt all regulations authorized by the provisions of chapter 39, title 42, Idaho Code, in conformance with the provisions of chapter 52, title 67, Idaho Code, provided that the board shall not adopt any regulation regarding the inventory of shallow injection wells that is more stringent than federal law or any regulations promulgated pursuant thereto.
[42-3915, added 1984, ch. 155, sec. 16, p. 379.]
When the director of the department of water resources determines that any person is in substantial violation of any provision of this chapter or any rule, permit, certificate, condition of approval or order issued or promulgated pursuant to this chapter, the director may commence an administrative enforcement action by issuing a written notice of violation in accordance with the provisions of section 42-1701B, Idaho Code. The director shall have the further authority to seek a preliminary or permanent injunction, or both, or a temporary restraining order restraining any person from violating or attempting to violate the provisions of this chapter, of the rules adopted thereunder, or of the permits issued by the director and mandating any person to take action appropriate under the circumstances to correct any violation. In any such action the director need not show irreparable injury for the issuance of a preliminary or permanent injunction, or both, or a temporary restraining order.
[42-3916, added 1984, ch. 155, sec. 17, p. 380; am. 1998, ch. 173, sec. 12, p. 611.]
Any person who constructs, operates, maintains, converts, plugs, abandons, or conducts any other activity in a manner that results or may result in the unauthorized injection of a hazardous waste or of a radioactive waste through an injection well shall be in violation of section 42-3902A, Idaho Code, and subject to a civil penalty not to exceed two thousand five hundred dollars ($2,500) for each day in which such action occurs. The director shall have the authority to file an action in the appropriate district court to impose, assess and recover said civil penalties.
[42-3917, added 1984, ch. 155, sec. 18, p. 380.]
Whenever the director finds that any person has constructed, operated, maintained, converted, plugged, abandoned or conducted any other activity in a manner that results in the unauthorized injection of a hazardous waste or of a radioactive waste through an injection well or whenever the director finds that any person proposes to do or to allow any such acts, then the director may issue a cease and desist order. The cease and desist order shall become effective and final upon issuance thereof. The director shall serve forthwith in accordance with the Idaho rules of civil procedure a certified copy of any such order on that person. That person shall have the right to a hearing in accordance with section 42-1701A, Idaho Code.
[42-3918, added 1984, ch. 155, sec. 19, p. 380.]
Any person who willfully constructs, operates, maintains, converts, plugs, abandons, or conducts any other activity in a manner that results or may result in the injection of a hazardous waste or of a radioactive waste through an injection well in violation of section 42-3902A, Idaho Code, or any person who willfully violates any cease and desist order after the same has been served on that person is guilty of a misdemeanor and:
(1) May be sentenced to jail for a period not to exceed six (6) months;
(2) May be fined in an amount not to exceed five thousand dollars ($5,000) for each offense; and
(3) Each day of violation shall constitute a separate offense.
[42-3919, added 1984, ch. 155, sec. 20, p. 380.]
This act may be known and cited as the Idaho Geothermal Resources Act.
[42-4001, added 1972, ch. 301, sec. 2, p. 749.]
Whenever used in this act the term:
(a) "Department" means the Idaho department of water resources.
(b) "Director" means the director of the Idaho department of water resources.
(c) "Geothermal resource" means the natural heat energy of the earth, the energy, in whatever form, which may be found in any position and at any depth below the surface of the earth present in, resulting from, or created by, or which may be extracted from such natural heat, and all minerals in solution or other products obtained from the material medium of any geothermal resource. Ground water having a temperature of two hundred twelve (212) degrees Fahrenheit or more in the bottom of a well shall be classified as a geothermal resource. Geothermal resources are found and hereby declared to be sui generis, being neither a mineral resource nor a water resource, but they are also found and hereby declared to be closely related to and possibly affecting and affected by water and mineral resources in many instances.
(d) "Geothermal area" means the same general land area which, in its subsurface, is underlaid or reasonably appears to be underlaid by geothermal resources from or in a single reservoir, pool, or other source or interrelated sources, as such area or areas may be from time to time designated by the director.
(e) "Material medium" means any substance, including, but not limited to, naturally heated fluids, brines, associated gases, and steam, in whatever form, found at any depth and in any position below the surface of the earth, which contains or transmits the natural heat energy of the earth, but excluding petroleum, oil, hydrocarbon gas, or other hydrocarbon substances.
(f) "Permit" means a permit issued pursuant to this act for the construction and operation of any well or injection well.
(g) "Person" means any individual, natural person, general or limited partnership, joint venture, association, cooperative organization, corporation whether domestic or foreign, agency or subdivision of this or any other state, or any municipal or quasi-municipal entity whether or not it is incorporated.
(h) "Waste" means any physical waste including, but not limited to:
(1) Underground waste resulting from the inefficient, excessive or improper use or dissipation of geothermal energy in or of any geothermal resource pool, reservoir, or other source; or the locating, spacing, construction, equipping, operating, or producing of any well in a manner which results, or tends to result, in reducing the quantity of geothermal energy to be recovered from any geothermal area in this state;
(2) The inefficient above-ground transporting and storage of geothermal energy; and the locating, spacing, equipping, operating, or producing of any well or injection well in a manner causing, or tending to cause, unnecessary or excessive surface loss or destruction of geothermal energy;
(3) The escape into the open air, from a well, of steam or hot water in excess of what is reasonably necessary in the efficient development or production of a well.
(i) "Well" means any excavation or other alteration in the earth’s surface or crust by means of which the energy of any geothermal resource and/or its material medium is sought or obtained.
(j) "Injection well" means any special well, converted producing well or reactivated or converted abandoned well employed for injecting material into a geothermal area to maintain pressures in a geothermal reservoir, pool, or other source, or to provide new material or to serve as a material medium therein, or for reinjecting any material medium or the residue thereof or any by-product of geothermal resource exploration or development into the earth.
(k) "Board" means the Idaho water resource board.
[42-4002, added 1972, ch. 301, sec. 3, p. 749; am. 1974, ch. 20, sec. 50, p. 533; am. 1974, ch. 297, sec. 1, p. 1753; am. 1987, ch. 347, sec. 14, p. 757.]
(1) Any person who, as owner or operator, proposes to construct a well or to alter a well or to construct or to alter an injection well shall first apply to the director for a geothermal resource well permit, except as provided in subsection (2) of this section.
(2) The use of ground water classified as a geothermal resource or material medium for the development and operation of oil and gas wells permitted under section 47-316, Idaho Code, shall not be subject to the provisions of this chapter. However, the director of the department of water resources may initiate a contested case in accordance with the provisions of chapter 52, title 67, Idaho Code, and the rules of procedure promulgated by the department, if the department has reason to believe that an oil and gas well will cause, is causing or has caused, significant negative impacts to pressure, temperature, quality necessary for beneficial use or quantity of water available to water rights existing at the time of the development of the oil and gas well or to a geothermal resource that can be beneficially used. The evidence of causation must come from the department or be credible information from a water right holder or a geothermal resource permit holder existing at the time of the development of the oil and gas well. It shall be the burden of the entity operating the oil and gas well to establish that it will not cause, is not causing and has not caused significant negative impacts to pressure, temperature, quality necessary for beneficial use or quantity of water available to existing water rights existing at the time of the development of the oil and gas well or to geothermal resource that can be beneficially used. If the director determines that the well will cause, is causing or has caused significant negative impacts to pressure, temperature, quality necessary for beneficial use or quantity of water available to a water right existing at the time of the development of the oil and gas well or to a geothermal resource that can be beneficially used, the director may order the operator to take measures to mitigate those impacts.
(3) Such application required pursuant to subsection (1) of this section shall set out the following information on a form or forms prescribed by the department:
(a) The name of any person making the application; if such person is a partnership, joint-venture, association, or other unincorporated group of corporate or natural persons, the names and places of domicile of each of the constituent persons who have general partnership responsibility and authority for and in such unincorporated group of persons; if any person named on a permit application is a corporation, its place of domicile, the names and places of domicile of its principal executive officers, and the names and places of domicile of any person or persons owning a thirty percent (30%) or greater interest, whether legal, beneficial, or a combined legal and beneficial interest, in such corporate person; if the applicant is making an application as an agent for any other person, it shall be clearly so stated and any person who is the applicant’s principal shall be subject to each and all of the disclosure requirements of this subsection; for purposes of this subsection, the domicile of a corporation is at all of the following:
(i) The place of incorporation;
(ii) The principal place of business;
(iii) The place, by city and state, of the home office, and in any instance where domicile is required to be disclosed all of these places shall be specified.
(b) The location of the proposed well; and/or the injection well described particularly by the quarter-quarter section according to the township and range system of the United States public lands survey.
(c) The length, size, type, and thickness of casing proposed to be used in such well and/or such injection well and any other devices or techniques to be used in the drilling, operation, and maintenance of such well and/or injection well for the purpose of conserving geothermal resources and their availability, avoiding waste and for the protection of other subsurface natural resources.
(d) The character and composition of the material expected to be derived from such well.
(e) The means proposed to be used to contain and manage the material expected to be derived from such well or injected into such injection well in order to avoid unreasonable damage to life, property, or surface and atmospheric natural resources.
(f) Whether such well or such injection well is proposed to be constructed as a part of a program for exploration or for development of an already explored geothermal resource area.
(g) Such other information as the director may determine to be necessary for the administration of this chapter.
(4) Any application for a permit to construct a well which is made pursuant to this section, if the construction or operation of such well will involve the use of water, or if such well may be expected to yield water to be used, for any beneficial purpose, other than as a mineral source, an energy source, or otherwise as a material medium, shall be accompanied by an application to appropriate the public waters of this state in the form prescribed in chapter 2, title 42, Idaho Code, and by rules adopted pursuant thereto, and such application to appropriate the public waters shall be governed in all respects by that chapter.
(5) Any application for a permit made pursuant to this section shall be accompanied by a filing fee of:
(a) Two hundred dollars ($200) if for a well; or
(b) One hundred dollars ($100) for an injection well;
and no application shall be accepted and filed by the director until such filing fee has been deposited with him. All moneys received under the provisions of this chapter shall be deposited with the state treasurer in the water administration fund as provided in section 42-238a, Idaho Code.
(6) No person shall construct or alter a well or an injection well without having first secured a permit therefor; provided however, that the director may, by general rule adopted pursuant to chapter 52, title 67, Idaho Code, exempt specific categories of wells or injection wells otherwise embraced by this chapter upon a finding that the purposes of this chapter do not require that such wells be subject to the permit requirement of this section.
(7) Nothing in this chapter shall be construed as affecting any valid, vested water rights for water in use on or before July 1, 1987.
(8) The director shall have the authority to and may designate any area of the state a "geothermal area" when the director finds or has reason to believe that such designation is necessary to protect the geothermal resource from waste and to protect other resources of the state from contamination or waste.
(9) No person shall drill a well for any purpose to a depth of three thousand (3,000) feet or more below land surface in a designated "geothermal area" without first obtaining a permit under the provisions of this section. Such permit shall be in addition to any permit required by other provisions of law.
(10) The owner of any well constructed or being constructed pursuant to section 47-316, Idaho Code, who encounters a geothermal resource, and who intends or desires to utilize such resource, shall make application for a geothermal permit as required under this section, provided however, that no additional filing fee shall be required.
(11) A geothermal resource shall be utilized primarily for its heat value. Usage of a geothermal resource primarily for some reason other than its heat value shall not be deemed a beneficial use of the resource.
[42-4003, added 1972, ch. 301, sec. 4, p. 749; am. 1974, ch. 20, sec. 51, p. 533; am. 1974, ch. 297, sec. 2, p. 1753; am. 1987, ch. 347, sec. 15, p. 758; am. 2007, ch. 189, sec. 1, p. 554; am. 2012, ch. 111, sec. 6, p. 307; am. 2017, ch. 271, sec. 30, p. 710.]
(a) Upon receipt of an application made pursuant to section 42-4003, Idaho Code, it shall be the duty of the director to examine such application to ascertain, within thirty (30) days of receipt, if it sets forth all information required by that section and all the information necessary for the director to make the determination required by this section. If upon such examination the application is found to be defective, the director shall return such application for correction, or notify the applicant that such application is defective, and the applicant may correct such application within thirty (30) days or make a new application. All applications which comply with the provisions of this chapter and with the rules of the water resource board shall be accepted by the director and numbered in a manner which will aid in their identification.
(b) Within thirty (30) days of the receipt and acceptance of a proper application and the determination of its completeness in accordance with subsection (a) of this section, the director shall undertake and thereafter diligently conduct such investigations as necessary to determine that the construction or alteration of the proposed well or injection well will be in the public interest. The director may consider, but is not limited in his consideration to:
(1) The financial resources of the applicant, his principal, or other person who may be legally responsible for the subject well or injection well, and the probability that such person will be financially able to bear all costs for which he might be responsible which may be incident to the construction, operation, and maintenance of the well or injection well proposed to be constructed or altered.
(2) The adequacy of measures proposed to safeguard subsurface, surface, and atmospheric resources from unreasonable degradation, and especially to protect ground-water aquifers and surface-water sources from contamination which would render such water of lesser quality than it would have had but for the contamination.
(3) The possibility that the construction and maintenance of the proposed well will cause waste or will damage any geothermal resource, reservoir, or other source, by unreasonable reduction of pressures or unreasonable reduction of any geothermal resource material medium or in any other manner, so as to render any geothermal resource of unreasonably less value.
(4) The adequacy of measures proposed to safeguard the environment of the area around the site of the proposed well from unreasonable contamination or pollution.
(5) Any possible interdependence between any geothermal resource, reservoir, pool, or other source expected to be affected under the permit and any aquifers or other sources of ground waters used for beneficial uses other than uses as a material medium or a mineral source, and the probability that such interdependence may cause such ground-water sources to be inadequate to meet demands on them under existing water rights.
(c) Upon completion of the investigations required under subsection (b) of this section, the director shall approve the application in whole or in part or upon conditions, or reject the application. Any applicant or the director shall have a right to have a public hearing concerning the propriety of issuing a permit for which an application has been made under section 42-4003, Idaho Code. Hearings held under this subsection shall be governed by rules of procedure adopted by the water resource board pursuant to chapter 52, title 67, Idaho Code. Hearings held under this subsection shall be held at any location found to be appropriate by the water resource board.
[42-4004, added 1972, ch. 301, sec. 5, p. 749; am. 1974, ch. 20, sec. 52, p. 533; am. 2007, ch. 189, sec. 2, p. 556.]
(a) If the director finds that the well or the injection well as proposed to be constructed or altered is in the public interest, he shall issue a permit. The director may issue a permit substantially in accordance with the specifications on the application, or the director may limit the scope of the permit granted or may issue a permit subject to conditions.
(b) If the director finds that the well or injection well as it is proposed to be constructed or altered in the application will not be in the public interest, he shall refuse to issue a permit. In no case shall the director issue a permit to construct or alter a well or injection well if he finds that use of the proposed well or injection well may be expected to unreasonably reduce the quality of any surface or ground waters below the quality which such waters would have had but for the proposed well.
(c) If the director refuses to issue a permit, or issues one subject to conditions or limitations, he shall issue a clear statement of his reasons for refusing to issue or issuing the limited permit. The director shall issue a statement of findings of fact and conclusions of law that provides a factual and legal basis for the order. The refusal of the director to issue a permit, together with the clear statement of the reasons for refusing to issue the permit shall be served on the applicant by certified mail. A permit issued conditionally or subject to limitations shall, with the statement of reasons required under this subsection, be served in the same manner as a refusal to issue a permit.
(d) An applicant denied a permit or issued a limited or conditional permit may seek a public hearing before the water resource board. A certified transcript of the proceedings and the evidence received at such hearing shall be maintained by the board. The board shall affirm, modify or reject the director’s decision, and make its decision in the form of an order to the director. The hearing shall be conducted in accordance with chapter 52, title 67, Idaho Code. Judicial review of the final determination by the board may be secured pursuant to chapter 52, title 67, Idaho Code.
(e) The director shall not issue a permit if he finds that the operation of any well under a proposed permit will decrease ground water in any aquifer or other ground water source or will unreasonably decrease ground water available for prior water rights in any aquifer or other ground water source of water for beneficial uses, other than uses as a mineral source, an energy source, or otherwise as a material medium, unless and until the applicant has also obtained a permit for the appropriation of ground waters under chapter 2, title 42, Idaho Code.
(f) The director shall require, as a condition of every permit, that every person who engages in the construction, alteration, testing, or operation of a well provide evidence of good and sufficient security in the form of a bond, trust fund, letter of credit, insurance or other acceptable surety that ensures that the applicant perform the duties required by this chapter and properly abandon any well covered by such permit. Good and sufficient security shall be an amount not less than ten thousand dollars ($10,000) or more than one hundred thousand dollars ($100,000) as determined by the director based on the size and depth of the well, the complexity of the well, the resource to be recovered, the area of operation, and other relevant factors.
(g) Notwithstanding the requirements for sufficient security for individual permits identified in this section, the director shall have the discretion to accept evidence of good and sufficient security in the form of a comprehensive wellfield or statewide bond, trust fund, letter of credit, insurance or other acceptable surety for all well permits owned by the applicant within a field or within the state, provided the amount of the comprehensive security does not exceed the total sum of the amounts under each individual permit.
[42-4005, added 1972, ch. 301, sec. 6, p. 749; am. 1974, ch. 20, sec. 53, p. 533; am. 1980, ch. 238, sec. 22, p. 551; am. 1987, ch. 347, sec. 16, p. 760; am. 1993, ch. 216, sec. 40, p. 623; am. 2004, ch. 63, sec. 1, p. 284; am. 2007, ch. 189, sec. 3, p. 557.]
The water resource board may, by regulation, provide for the consolidation of permit applications where several wells are proposed to be constructed in a geothermal area either for exploration or for development. Such regulations shall be promulgated according to the provisions of chapter 52, title 67, Idaho Code. A consolidated permit application shall be in substantial compliance with the requirements of section 42-4003, Idaho Code.
[42-4006, added 1972, ch. 301, sec. 7, p. 749; am. 1974, ch. 20, sec. 54, p. 533.]
At least five (5) days before any operation to abandon any well or injection well is commenced, the owner or operator thereof shall submit in writing a notification of intention to abandon to the director for approval, except that it shall be permissible to give oral notice followed within twenty-four (24) hours by written confirmation. Such notification shall clearly state the condition of the well or injection well, and the proposed method of abandonment. No person shall commence any operation to abandon a well or an injection well without approval by the director.
[42-4007, added 1972, ch. 301, sec. 8, p. 749; am. 1974, ch. 20, sec. 55, p. 533.]
The director may, before the proposed date for commencing any abandonment operation, approve by order in writing, or, if found to be necessary, approve orally to be followed within forty-eight (48) hours by a written approval order, or disapprove by order in writing, any proposed abandonment. An approval order may be made conditional or limited. Any conditional or limited approval order and any disapproval order shall be accompanied by requests for further tests or other practices than those proposed by the person seeking approval, which tests or practices would remove the disability from the proposed abandonment.
[42-4008, added 1972, ch. 301, sec. 9, p. 749; am. 1974, ch. 20, sec. 56, p. 533.]
(a) Within five (5) days after the completion of the abandonment of any well or injection well, the owner or operator of the abandoned well or injection well shall report, in writing to the director on such form as may be prescribed by the director, on all work done with respect to the abandonment.
(b) If the director finds that the abandonment failed to comply with the director’s approval order or is otherwise not in compliance with this act or any regulation or order adopted or issued pursuant hereto, the director may issue an order disapproving such abandonment and/or requiring the person who abandoned the well or injection well to comply with the provisions of this act and any valid order or regulation adopted pursuant hereto or to do anything necessary to avoid waste and to protect life, property, and the natural resources of this state. Any owner or operator who receives a disapproval order under this section is a person who has commenced to abandon a well or injection well without approval, for purposes of any civil or criminal relief available under this act.
[42-4009, added 1972, ch. 301, sec. 10, p. 749; am. 1974, ch. 20, sec. 57, p. 533.]
(a) The water resource board may adopt, amend, or rescind reasonable rules, regulations, and construction standards necessary to the administration of this chapter in accordance with chapter 52, title 67, Idaho Code.
(b) The board may require that owners or operators of wells or injection wells keep or cause to be kept well logs, core records, and drilling histories of such wells or injection wells. It may require that copies of such logs, records, and/or histories be filed with the director within a reasonable time after well completion. It may further require such other geologic, geochemical, or engineering plans, reports, or records as necessary for the administration of this chapter. Any reports, logs, records, or histories filed with the director shall be available for public inspection subject to disclosure according to chapter 1, title 74, Idaho Code, and shall be kept as confidential by the director for a period of one (1) year from well completion, provided however, that the director may use any such reports, logs, records, or histories in any action in any court to enforce the provisions of this chapter or any order or regulation adopted hereunder.
(c) The director may enter onto private land at any time to inspect any well or geothermal resource development project to determine if such well or project is being constructed, operated, or maintained according to any applicable permits or to determine if the construction, operation, or maintenance of such well or project may involve a threat to life or property or an unreasonable risk to subsurface, surface, or atmospheric resources.
(d) If the director finds that any person is constructing, operating or maintaining any well or injection well not in accordance with any applicable permit or in a fashion so as to involve an unreasonable risk of, or so as to cause, damage to life or property or subsurface, surface, or atmospheric resources, the director may issue an order to such person to correct or to stop such practices found to be improper and to mitigate any injury of any sort caused by such practices.
(e) The director may enforce any provision of this chapter or any order or regulation issued or adopted pursuant hereto by an appropriate action in the district court. The director may bring an action in the district court to have enjoined any threatened noncompliance with any provision of this chapter, regulations, or orders of the director, or any threatened harm to life, property, or surface, subsurface, or atmospheric resources that would be caused by such noncompliance. It shall be the duty of the attorney general to institute and prosecute civil enforcement actions or injunctive actions as provided in this chapter.
(f) The director of the department of water resources is hereby vested with the power and authority to enforce the provisions of chapter 40, title 42, Idaho Code, and rules and regulations promulgated pursuant to it. When the director of the department of water resources determines that any person is in substantial violation of any provision of this chapter or any rule, permit, certificate, condition of approval or order issued or promulgated pursuant to this chapter, the director may commence an administrative enforcement action by issuing a written notice of violation in accordance with the provisions of section 42-1701B, Idaho Code. A responsible or principal executive officer of any corporate person may be liable under this subsection if such corporate person is not in compliance with any provision of this chapter or with any valid order or regulation adopted pursuant hereto.
(g) The director shall undertake such studies, investigations, or research programs as necessary for the proper administration of this chapter and in order to develop experience in and understanding of the entire field of geothermal resource exploration and development in both its technical and regulatory aspects. The director and board shall cooperate with other Idaho state agencies, the state institutions of higher learning, agencies of other states, and agencies of the federal government in the preparation of such investigations, studies, or research projects. The director and board may cooperate with the scientists at the Idaho national laboratory in their research, development, engineering and demonstration of geothermal projects.
(h) The director may enter into cooperative agreements and memoranda of understanding with agencies of other states for the purpose of the administration of geothermal areas that are partially in Idaho and partially in one (1) or more other states.
[42-4010, added 1972, ch. 301, sec. 11, p. 749; am. 1974, ch. 20, sec. 58, p. 533; am. 1974, ch. 297, sec. 3, p. 1753; am. 1987, ch. 347, sec. 17, p. 762; am. 1990, ch. 213, sec. 62, p. 530; am. 1998, ch. 173, sec. 13, p. 612; am. 2015, ch. 141, sec. 118, p. 467; am. 2021, ch. 65, sec. 7, p. 202.]
(a) No well may be owned or operated by any person whose name does not appear on the permit or permit application therefor, nor may any well be transferred to any new owner or operator unless an application to amend such permit has been approved by the director.
(b) No changes in or departure from the procedures, locations, data, or persons specified on the face of a permit shall be permitted under this act until an amendment to such permit is approved by the director. The board may specify forms upon which applications for amendments to permits may be filed with the director. Any application to amend a permit shall be accompanied by a filing fee of fifty dollars ($50.00), and the director shall not accept an amendment application which is not accompanied by such filing fee. All such filing fees shall be deposited with the state treasurer in the water administration fund as provided in section 42-238a, Idaho Code.
(c) The director shall approve any permit application to amend a permit unless he finds that such amendment will not be in the public interest. If the director refuses to approve such amendment, he shall serve on the applicant, by certified mail, an order disapproving the amendment and setting out its reasons for disapproving the amendment.
[42-4011, added 1972, ch. 301, sec. 12, p. 749; am. 1974, ch. 20, sec. 59, p. 533.]
(a) Every permit holder, owner, and operator of any well shall designate to the director an agent who resides in this state upon whom may be served all orders, notices, or permits issued by the director.
(b) Any person adversely affected by any order, including orders following hearings held pursuant to this chapter, served on him by the board or the director may bring an appeal therefrom to the district court within twenty-eight (28) days of such service, or, if he has not had a hearing before the board, he may request a hearing at such time. Such appeals shall be accomplished and reviewed pursuant to chapter 52, title 67, Idaho Code.
(c) Nothing contained in this section shall preempt any right of any person to any writ or other relief available in a civil action.
(d) Nothing contained in this act shall preempt any public nuisance or similar law of this state.
(e) All orders, permits, and notices issued by the director or the board under this act shall also bind and be effective on all successors and assigns of the persons to whom such orders, permits, and notices are addressed.
[42-4012, added 1972, ch. 301, sec. 13, p. 749; am. 1974, ch. 20, sec. 60, p. 533; am. 1980, ch. 238, sec. 23, p. 553; am. 1993, ch. 216, sec. 41, p. 624.]
(a) Whenever the director finds that it is in the public interest and especially in the interest of the conservation of natural resources and of the protection of the geothermal resources of this state from waste, the lessors, lessees, operators, owners, or other persons holding or controlling royalty or other interests in the separate properties of the same geothermal area may, with the approval of the board, enter into an agreement for the purpose of bringing about the cooperative development, operation, and maintenance of all or a portion of the geothermal resources of the geothermal area as a unit; or for the purpose of fixing the time, location, and manner of drilling, operating, and maintaining of wells and of injection wells. Any such agreement shall bind the successors and assigns of the parties thereto and shall be enforceable by the parties thereto by an action for specific performance. No such agreement, when approved by the board pursuant to this section, shall be held to violate any of the statutes of this state prohibiting monopolies or acts, arrangements, agreements, contracts, combinations or conspiracies in restraint of trade or commerce to the extent that the provisions of such agreement relate to the purpose of this section. No such agreement authorization shall constitute a waiver of any permit, license, lease, or other authorization required under this act or under any other provision of state law or any regulation adopted by any agency or subdivision of this state. The board may establish procedures to govern the establishment or adoption of such cooperative unit agreements.
(b) Whenever the director finds that a geothermal resource area should be cooperatively operated as a unit to avoid waste, and the persons owning tracts or interests in such area refuse to enter into a cooperative agreement pursuant to subdivision (a) of this section, the board, after notice and hearing, may issue an order that such area shall be operated as a unit. Such order shall provide an equitable sharing of proceeds and liabilities from the geothermal resource area among the several owners of tracts and interests therein.
[42-4013, added 1972, ch. 301, sec. 14, p. 749; am. 1974, ch. 20, sec. 61, p. 533.]
This act shall be construed liberally to serve its purposes and policy.
[42-4014, added 1972, ch. 301, sec. 15, p. 749.]
Whenever the masculine gender is used in this act it shall read as the masculine, feminine, or neuter genders as may be appropriate; the singular form shall also be read as referring to the plural form wherever it is appropriate to do so.
[42-4015, added 1972, ch. 301, sec. 16, p. 749.]
The following eighteen (18) sections may be cited as the "Water and Sewer District Revenue Bond Act."
[42-4101, added 1976, ch. 62, sec. 1, p. 211.]
Any water and/or sewer district acquiring, constructing, reconstructing, improving, bettering or extending any works pursuant to this act, shall manage such works in the most efficient manner consistent with sound economy and public advantage, to the end that the services of such works shall be furnished at the lowest possible cost. No water and/or sewer district shall operate any works primarily as a source of revenue to the district, but shall operate all such works for the use and benefit of those served by such works and for the promotion of the welfare and for the improvement of the health, safety, comfort and convenience of the inhabitants of the water and/or sewer district.
[42-4102, added 1976, ch. 62, sec. 1, p. 211.]
For the purpose of this act, unless a different meaning clearly appears from the context, the following terms shall be ascribed the following meanings:
(a) The term "works" shall include water systems and sewerage systems;
(b) The term "water system" shall include reservoirs, storage facilities, water mains, conduits, aqueducts, pipelines, pumping stations, filtration plants, and all appurtenances and machinery necessary or useful for obtaining, storing, treating, purifying or transporting water for domestic uses or purposes;
(c) The term "sewerage system" shall include intercepting sewers, outfall sewers, force mains, collecting sewers, pumping stations, ejector stations, treatment plants, structures, buildings, machinery, equipment, connections and all other appurtenances necessary, useful or convenient for the collection, transportation, treatment, purification, and disposal of the sewage of any district;
(d) The term "district" shall mean water and/or sewer districts and/or water or sewer subdistricts.
[42-4103, added 1976, ch. 62, sec. 1, p. 212; am. 1996, ch. 73, sec. 2, p. 237.]
In addition to the powers which it may now have, any district shall have power under and subject to the following provisions:
(a) To acquire by gift or purchase and to construct, reconstruct, improve, better or extend any works within or without the district, or partially within or partially without the district, or within any part of the district, and acquire by gift or purchase lands or rights in lands or water rights in connection therewith, including easements, rights of way, contract rights, leases, franchises, approaches, dams and reservoirs; to lease any portion of the excess or surplus capacity of any such works to any party located within or without the district, subject to the following conditions: that such capacity shall be returned or replaced by the lessee when and as needed by such district for the purposes set forth in section 42-4102, Idaho Code, as determined by the district; that the district shall not be made subject to any debt or liability thereby; and the district shall not pledge any of its faith or credit in aid to such lessee;
(b) To exercise the right of eminent domain for any of the works, purposes or use provided by this act, in like manner and to the same extent as provided in section 7-720, Idaho Code;
(c) To operate and maintain any works within or without the boundaries of the district, or partially within or without the boundaries of the district, or within any part of the district;
(d) To issue its revenue bonds hereunder to finance, in whole or in part, the cost of the acquisition, construction, reconstruction, improvement, betterment or extension of any works;
(e) To prescribe and collect rates, fees, tolls or charges, including the levy or assessment of such rates, fees, tolls or charges against governmental units, departments or agencies, including the state of Idaho and its subdivisions, for the services, facilities and commodities furnished by such works, and to provide methods of collections and penalties, including denial of service for nonpayment of such rates, fees, tolls or charges;
(f) To pledge an amount of revenue from such works (including improvement, betterment or extensions thereto, thereafter constructed or acquired) sufficient to pay said bonds and interest as the same shall become due, and to create and maintain reasonable reserves therefor.
Such amount may consist of all or any part or portion of such revenues. In determining such cost, there may be included all costs and estimated costs of the issuance of said bonds; all engineering, inspection, fiscal and legal expenses and interest which it is estimated will accrue during the construction period and for six (6) months thereafter on money borrowed or which it is estimated will be borrowed pursuant to the water and sewer district revenue bond act.
(g) To issue bonds for the purpose of refunding any bonds theretofore issued under authority of the water and sewer district revenue bond act and to pay accrued interest and applicable redemption premiums on the bonds to be refunded, if the bonds to be refunded are due, callable or redeemable by their terms on or prior to the date that the refunding bonds are issued, or will become due, callable or redeemable by their terms within twelve (12) months thereafter, or if the bonds to be refunded, even though not becoming due, callable or redeemable within such period, are voluntarily surrendered by the holders thereof, for cancelation at the time of the issuance of the refunding bonds. All or part of any issue may be refunded and all or part of several issues may be refunded into a single issue of refunding bonds. There may be included with the refunding bonds, as part of a single issue, or in combination in one or more series, bonds for any other purpose or purposes for which bonds are authorized to be issued under the water and sewer district revenue bond act. Refunding bonds shall be issued and secured in such manner as may be provided in the proceedings authorizing their issuance and as otherwise provided in the water and sewer district revenue bond act, and such changes may be made in the security and revenue pledged to the payment of the bonds so refunded, as provided by the governing body in the proceedings authorizing such bonds. No election on the issuance of refunding bonds shall be required, but if by an increase in the amount of bonds or by changes in the security or pledged revenues, the requirements of the constitution for an election shall become applicable, or if refunding bonds are combined into a single issue with bonds authorized for nonrefunding purposes, then such bonds with changes in security or revenues, or such bonds in excess of the amount of bonds refunded, as the case may be, must have been approved at an election as otherwise provided in the water and sewer district revenue bond act and the constitution. Refunding bonds may be exchanged for not less than a like principal amount of bonds authorized to be refunded, may be sold, or may be exchanged in part and sold in part. If sold, the proceeds of the sale, not required for the payment of expenses, and in any event, in an amount sufficient to assure the retirement of the bonds refundable, when such bonds become available for retirement, if not applied to a simultaneous payment and cancelation of the bonds refunded shall be escrowed with a bank or trust company and may be invested in United States government obligations or in obligations unconditionally guaranteed by the United States of America in such manner as may be provided in the authorizing proceedings.
[42-4104, added 1976, ch. 62, sec. 1, p. 212]
The construction, acquisition, improvement, equipment, custody, operation and maintenance of any works under the provisions of this act, and the collection of revenues therefrom for the service rendered thereby shall be under the supervision and control of the governing body of the district.
[42-4105, added 1976, ch. 62, sec. 1, p. 214.]
The commissioners of the district issuing bonds pursuant to this act shall prescribe and collect reasonable rates, fees, tolls or charges for the services, facilities and commodities furnished by such works, and shall revise such rates, fees, tolls or charges from time to time, to provide that all such works shall be and always remain self-supporting. The rates, fees, tolls or charges prescribed shall be such as will produce revenue at least sufficient, (a) to pay when due all bonds and interest thereon for the payment of which such revenue is or shall have been pledged, charged or otherwise encumbered including reserves therefor, and (b) to provide for all expenses of operation and maintenance of such works, including reserves therefor.
[42-4106, added 1976, ch. 62, sec. 1, p. 215.]
Any district issuing bonds under this act for the acquisition, construction, reconstruction, improvement, betterment or extension of any works, shall have the right to appropriate, apply or expend the revenue of such works for the following purposes: (a) to pay when due all bonds and interest thereon, for the payment of which such revenue is or shall have been pledged, charged or otherwise encumbered, including reserves therefor; (b) to provide for all expenses of operation, maintenance, replacement and depreciation of such works, including reserves therefor; (c) to pay and discharge notes, bonds or other obligations and interest thereon, not issued under this act for the payment of which the revenue of such works may have been pledged, charged or encumbered; (d) to pay and discharge notes, bonds or other obligations and interest thereon which do not constitute a lien, charge or encumbrance on the revenue of such works, which may have been issued for the purpose of financing the acquisition, construction, reconstruction, improvement, betterment or extension of such works; and (e) provide a reserve for improvements to such works. Unless and until full and adequate provision has been made for the foregoing purposes, no district shall have the right to transfer the revenue of such works to its general fund.
[42-4107, added 1976, ch. 62, sec. 1, p. 215.]
The district may provide for the payment of all necessary preliminary expenses actually incurred in the making of surveys, estimates of costs and revenues, employment of engineers and other employees, making of notices, taking of options, legal and clerical help and all other expenses necessary to be made and paid prior to the authorization for the issuance of such revenue bonds, provided, that no such expenditures shall be made or paid unless an appropriation has been made therefor in the same manner as is required by law for district funds. Any funds so expended by the district shall be fully reimbursed and repaid to the district out of the sale of such revenue bonds before any other disbursements are made therefrom, and the amount so advanced by the district to pay such preliminary expenses shall be a first charge against the proceeds resulting from the sale of such revenue bonds until the same has been repaid as herein provided.
[42-4108, added 1976, ch. 62, sec. 1, p. 215.]
Before any district shall construct or acquire any works under this act, the commissioners of such district shall enact a resolution or resolutions which shall, (a) set forth a brief and general description of the works, and if the same are to be constructed, a reference to the preliminary report or plans and specifications which shall theretofore have been prepared and filed by an engineer chosen for that purpose; (b) set forth the cost thereof estimated by the engineer chosen as aforesaid; (c) order the construction or acquisition of such works; (d) direct that revenue bonds of the district shall be issued pursuant to this act in such amount as may be necessary to pay the cost of the works; and (e) contain such other provisions as may be necessary in the proposal.
Such resolution shall be passed and approved as provided by law for the enactment of general resolutions, but such district shall not, without the assent of a majority of the qualified electors voting at an election to be held for such purpose, issue revenue bonds for the purpose of providing funds to own, purchase, construct, extend or equip, within and without the corporate limits of such district, water systems, sewerage systems, water treatment plants and sewerage treatment plants, the principal and interest of which to be paid solely from the revenue derived from rates and charges for the use of, and the service rendered by such systems, plants and facilities.
Said resolutions shall provide for the holding of said election in the manner set forth in chapter 14, title 34, Idaho Code. The notice of election shall set forth the purpose of said resolution, the amount of bonds authorized by it, the maturity dates of said bonds, the maximum rate of interest they shall draw, the voting places, the hours between which the polls will be open and the qualifications of voters who may vote thereat. Such election shall be conducted as are other district elections. The voting at such elections must be by ballot, and the ballots used shall be substantially as follows:
"In favor of issuing revenue bonds for the purposes provided by Resolution No. ……."
"Against the issuance of revenue bonds for the purposes provided by Resolution No. ……."
If, at such election, a majority of the qualified electors, voting at such election, vote in favor of issuing such revenue bonds, then such district may issue such bonds and create such indebtedness or liability in the manner and for the purpose specified in said resolution.
[42-4109, added 1976, ch. 62, sec. 1, p. 216; am. 1994, ch. 51, sec. 1, p. 89.]
Revenue bonds issued under authority of this act shall be sold, executed and delivered at public or private sale in the manner as provided by the municipal bond law. Revenue bonds may also be sold by electronic bidding as provided in section 57-233, Idaho Code. The resolution authorizing the issuance of said bonds shall prescribe the form of bonds. Said bonds shall bear interest at a rate or rates, payable annually, or at such lesser intervals as may be prescribed by resolution; may be in one (1) or more series, bear such date or dates, mature at such time or times, and be redeemable before maturity at the option of the district; may be payable in such medium of payment, at such place or places, may carry such registration privileges, may be subject to such terms of redemption, may contain such terms, covenants and conditions, and may be in such form, either coupon or registered, as such resolution may provide. Said bonds shall be sold at not less than par with accrued interest. Pending preparation of the bonds, interim certificates, in such form and with such provisions as the commissioners may determine, may be issued. Said bonds and interim certificates shall be fully negotiable within the meaning of and for all the purposes of the negotiable instruments law.
Notwithstanding the provisions of the municipal bond law, the governing body in any proceedings authorizing bonds under this act may:
(a) Provide for the initial issuance of one (1) or more bonds, in this act called "bond," aggregating the amount of the entire issue;
(b) Make such provision for installment payments of the principal amount of any such bond as it may consider desirable;
(c) Provide for the making of any such bond payable to bearer or otherwise, registrable as to principal or as to both principal and interest, and where interest accruing thereon is not represented by interest coupons, for the endorsing or payments of interest on such bonds; and
(d) Further make provision in any such proceedings for the manner and circumstances in and under which any such bond may in the future, at the request of the holder thereof, be converted into bonds of smaller denominations, which bonds of smaller denominations may in turn be either coupon bonds or bonds registrable as to principal, or principal and interest, or both.
[42-4110, added 1976, ch. 62, sec. 1, p. 217; am. 2001, ch. 264, sec. 1, p. 967.]
Whenever revenue bonds are authorized to be issued, the district commissioners shall by resolution provide for the issuance thereof. The resolution authorizing the issuance of said revenue bonds, for the purpose authorized, shall contain covenants as to:
(a) The purpose or purposes to which the proceeds of the sale of said bonds may be applied and the use and disposition thereof;
(b) The use and disposition of the revenue of the works for which said bonds are to be issued, including the creation and maintenance of reserves;
(c) The issuance of other or additional bonds payable from the revenue of such works;
(d) The operation and maintenance of such works;
(e) The insurance to be carried thereon, the use and disposition of insurance moneys;
(f) Books of account and inspection and audit thereof;
(g) The terms and conditions upon which the holders thereof or any trustee therefor shall be entitled to the appointment of a receiver which receiver may enter and take possession of such works, operate and maintain the same, prescribe rates, fees, tolls or charges and collect, receive and apply all revenue thereafter arising therefrom in the same manner as the district itself might do. The provisions of this section and of any such resolution shall be a contract with the holder of said bonds and the duties of the district and its commissioners under this section and under such resolution, shall be enforceable by the holder by mandamus or other appropriate suit, action or proceedings at law or in equity.
[42-4111, added 1976, ch. 62, sec. 1, p. 218.]
Any resolution authorizing said bonds may provide that the bonds shall contain a recital that they are issued pursuant to the water and sewer district revenue bond act, which recital shall be conclusive evidence of their validity and of the regularity of their issuance.
[42-4112, added 1976, ch. 62, sec. 1, p. 218.]
All bonds of the same issue shall, subject to the prior and superior rights of outstanding bonds, claims or obligations, have prior and paramount lien on the revenue of the works for which said bonds have been issued, except that where provision is made in the resolution authorizing any issue or series of bonds for the issuance of additional bonds in the future on a parity therewith pursuant to procedures or restrictions provided in such resolution, additional bonds may be issued in the future on a parity with such issue or series in the manner so provided in such resolution. All bonds of the same issue shall be equally and ratably secured without priority by reason of number, date of bonds, date of sale, date of execution, or date of delivery, by a lien on said revenue in accordance with the provisions of the water and sewer revenue bond act and the resolution authorizing said bonds.
[42-4113, added 1976, ch. 62, sec. 1, p. 219.]
Bonds issued pursuant to the water and sewer district revenue bond act shall not be a debt of the district and the district shall not be liable thereon, nor shall they be payable out of any funds other than the revenue pledged to the payment thereof. Each bond issued under the water and sewer district revenue bond act shall recite, in substance, that said bond, including interest thereon, is payable solely from the revenue pledged to the payment thereof. Bonds may be issued under the water and sewer district revenue bond act notwithstanding and without regard to any limitation or restriction on the amount or percentage of indebtedness, or of outstanding obligations of a district.
[42-4114, added 1976, ch. 62, sec. 1, p. 219.]
So long as a district shall own any works, the property and revenue of such works shall be exempt from taxation. Bonds issued under the water and sewer district revenue bond act and the income therefrom shall be exempt from taxation, except transfer and estate taxes.
[42-4115, added 1976, ch. 62, sec. 1, p. 219.]
(1) The welfare of the people of the state of Idaho is dependent upon the conservation, development, augmentation and optimum use of the water resources of this state. The legislature deems it essential therefore that every effort be made to foster and encourage water projects designed to promote these objectives. The legislature hereby acknowledges that the proposed project to recharge ground water basins in Jerome, Lincoln and Gooding counties by means of the storage of unappropriated waters of the Snake River and its tributaries in underground lava beds within that vicinity represents a unique and innovative endeavor to further water conservation and increase the water available for beneficial use. The legislature approves this undertaking as a pilot effort to bring about maximum realization of our water resource potential and finds, in particular, that this project shall serve the interests of the public and advance the multiple use water policy of this state by:
(a) sustaining and increasing the flow of springs in the general vicinity of the Hagerman Valley;
(b) increasing the water available for withdrawal from ground water basins located in Jerome, Gooding and Lincoln counties;
(c) supplementing the supply of water available for irrigation downstream from the Hagerman Valley;
(d) providing additional aquatic habitats for migratory fowl and wildlife; and
(e) increasing and sustaining the flow of the Snake River during the summer months and in times of drought when additional flow is needed for the generation of hydroelectric power and the maintenance of water recreation facilities.
(2) In view of the public betterment to be achieved by the completion of this water project, the legislature hereby declares that the appropriation and underground storage of water by the aquifer recharge district hereinafter created for purposes of ground water recharge shall constitute a beneficial use and hereby authorizes the department of water resources to issue to the aquifer recharge district a permit, pursuant to section 42-203, Idaho Code, for the appropriation and underground storage of the unappropriated waters of the Snake River in Jerome, Lincoln and Gooding counties and its tributaries in Gooding and Lincoln counties. The department of water resources is further authorized to issue to the aquifer recharge district a license confirming the right to appropriate such waters for the beneficial use herein established upon compliance by the district with the requirements specified in chapter 2, title 42, Idaho Code. The rights acquired by the aquifer recharge district pursuant to any permit and license obtained as herein authorized shall be secondary to all prior perfected water rights, including those held by any privately-owned electrical generating company to appropriate waters in the reaches of the Snake River downstream from the Milner diversion for purposes of hydroelectric power generation.
(3) The director of the department of water resources may regulate the amount of water which the aquifer recharge district may appropriate from the Snake River and may reduce such amount, even though there is sufficient water to supply the entire amount originally authorized, but only if the following conditions are met:
(a) the amount of water available for appropriation by the district at the time the reduction is sought exceeds two hundred thousand (200,000) acre feet per year and the reduction, if granted, will not operate to deplete that amount to less than two hundred thousand (200,000) acre feet per year;
(b) the persons or entities seeking the reduction propose to use the water for purposes of surface reservoir storage and appropriation by the district of the entire amount originally authorized will prevent or adversely affect accomplishment of those purposes;
(c) the persons or entities seeking the reduction present substantial and compelling evidence to show that the accomplishment of such purposes will be prevented or adversely affected and the director finds on the basis of such evidence that sufficient justification for the reduction exists.
Even if the foregoing conditions are satisfied and a reduction is granted, such a reduction shall remain in effect only so long as the amount of water available for appropriation by the district exceeds two hundred thousand (200,000) acre feet per year.
The provisions of this subsection shall not apply to appropriation of water by the district from the Big Wood River or the Little Wood River.
(4) To insure that other water rights are not injured by the operations of the aquifer recharge district, the director of the department of water resources shall have the authority to approve, disapprove, or require alterations in the methods employed by the district to achieve ground water recharge. In the event that the director determines that the district’s methods of operation are adversely affecting existing water rights or are creating conditions adverse to the beneficial use of water under existing water rights, the director shall order the cessation of operations until such alterations as may be ordered by the director have been accomplished or such adverse effects otherwise have been corrected.
(5) The fee required for an application for a permit to appropriate water as provided in section 42-221, Idaho Code, is hereby waived from the effective date of this act until July 1, 1997, for recharge projects for recharge districts formed under this section.
[42-4201, added 1978, ch. 293, sec. 1, p. 724; am. 1994, ch. 273, sec. 1, p. 849; am. 1995, ch. 338, sec. 1, p. 1117.]
For purposes of formation of the aquifer recharge district, a petition shall be presented to the department of water resources which shall set forth the object of the organization of the district and the benefits to be provided by the district. The petition shall be accompanied by a map of the proposed district which shall indicate the proposed boundaries of the district, the nature and location of the proposed diversion works and other facilities by means of which water is to be diverted into the recharge area, shall delineate the underground water basin or basins to be affected by the recharge, and shall designate the location of any streams or springs which shall be affected by the recharge. The petition and map shall be accompanied by a statement describing the details of the contemplated diversion works and facilities and an estimate of the cost of constructing such works and facilities, which statement and estimates shall be certified to by an engineer licensed by the state of Idaho.
The petition shall be signed by no less than fifty (50) percent of the water users located within the proposed boundaries of the district. For purposes of this act, "water users" shall include the following:
(1) Individuals, or entities, exclusive of privately owned electrical generating companies, who are the holders of title or evidence of title to property, but without the boundaries of a municipality, who are the current holders of a right, acquired in accordance with the provisions of chapter 2, title 42, Idaho Code, to appropriate water in an amount equal to or in excess of one (1) cubic foot per second, and who divert water from underground basins within the area of recharge by means of a well or wells, or who divert water from springs or other water courses emerging from such underground basins, or both.
(2) Municipalities which obtain water from underground basins in the area of recharge. A municipality may elect to be included within the proposed district by a majority vote of the members of its city council. The mayor of any municipality so electing may sign the petition on behalf of the municipality, and such municipality shall constitute one water user for purposes of securing the minimum number of signatures required for the petition.
[42-4202, added 1978, ch. 293, sec. 1, p. 727; am. 1979, ch. 8, sec. 1, p. 10; am. 1982, ch. 204, sec. 2, p. 539.]
After receipt of the petition, map and statement, the director shall review and examine the same and may require the submission of such additional or revised data concerning the boundaries of the proposed district, the location and nature of the diversion works and facilities to be constructed, the costs of construction or any other matter relevant to the formation of the district as he may deem necessary. The director shall conduct a hearing on the petition and supporting documents. Notice of the time and place of the hearing shall be published by the director in a newspaper or newspapers published in each of the counties or a newspaper of general circulation therein at least three (3) weeks before the date of the hearing.
Within ninety (90) days after the hearing has been concluded, the director after due consideration of all relevant data and testimony, shall determine whether the proposed district will provide the benefits described, whether the boundaries proposed are proper with respect to the benefits to be provided, and whether the formation of the district will serve the interests of the water users proposed to be benefited. On the basis of his determination, the director shall enter an order either establishing the aquifer recharge district and defining the boundaries thereof to reflect the area to be benefited, or denying the formation of the district. If the director orders formation of the district, he shall cause copies of the order, duly certified, to be filed with the secretary of state and board of county commissioners, county recorder, county assessor and county treasurer of each county in which any part of the district is situated.
[42-4203, added 1978, ch. 293, sec. 1, p. 727; am. 1979, ch. 8, sec. 2, p. 11.]
(1) The board of directors of the aquifer recharge district shall consist of five (5) members. Each member shall be a water user, or representative of a water user within the district. The members of the board shall be as follows:
(a) One (1) member shall be a member of a lateral ditch water user’s association, canal company, irrigation district or similar organization;
(b) One (1) member shall be an owner or operator of a commercial fish hatchery licensed in accordance with the provisions of section 22-4602, Idaho Code;
(c) One (1) member shall be a farmer or rancher who is an appropriator of groundwater and whose diversion thereof is accomplished primarily through the operation of a well or wells;
(d) One (1) member shall be a member of the city council of a municipality within the district; and
(e) One (1) member shall be generally representative of the interests of water users within the district.
(2) The first board of directors shall be appointed by the director of the department of water resources. Water users within the district, or groups thereof, may submit to the director, or the director may solicit therefrom, the names of qualified individuals to be considered for appointment to the board.
(3) The term of office of the directors shall be determined by lot so that three (3) members shall serve for a term of two (2) years and two (2) members shall serve for a term of one (1) year. Thereafter, members shall serve two (2) year terms and shall be elected as provided in this section.
(4) On the first Tuesday in February following the expiration of the term of those members serving for one (1) year, and on the first Tuesday in February of each year thereafter, an election shall be held in accordance with the provisions of chapter 14, title 34, Idaho Code, at which directors to succeed those whose terms have expired will be elected. Each director so elected shall possess the qualifications required of all members of the board and in addition shall possess the qualifications of the director whom he is to succeed in office.
(5) In any election for director if, after the deadline for filing a declaration of intent as a write-in candidate, it appears that only one (1) qualified candidate has been nominated for a director’s position, it shall not be necessary for the candidate to stand for election, and the board of directors of the district shall declare such candidate elected as director, and the secretary of the district shall immediately make and deliver to such person a certificate of election.
[42-4204, added 1978, ch. 293, sec. 1, p. 728; am. 1982, ch. 204, sec. 3, p. 540; am. 1985, ch. 10, sec. 1, p. 14; am. 1992, ch. 273, sec. 3, p. 846; am. 1995, ch. 118, sec. 76, p. 492; am. 2021, ch. 325, sec. 12, p. 999.]
Each municipality which has elected to be and is included within the district shall be entitled to one (1) vote for each director to be elected and the vote of the majority of the members of the city council of each such municipality shall constitute the vote of the municipality for each director to be elected. The voting shall be conducted at a regular meeting of the city council or a special meeting called by the mayor for that purpose to be held on or within a week prior to the date set for election. The voting results shall be certified to by the mayor and forwarded to the secretary of the district prior to the date set for canvassing of election returns by the board of directors. The provisions of section 42-4209, Idaho Code, shall not apply to municipalities.
[42-4205, added 1978, ch. 293, sec. 1, p. 729.]
Any water user, as defined in section 42-4202(1), Idaho Code, or a representative thereof, within the district who possesses the qualifications required of electors under the general laws of the state and who resides within a county or portion thereof situated within the district shall be entitled to vote at any election held under the provisions of this chapter.
[42-4206, added 1978, ch. 293, sec. 1, p. 729.]
Pursuant to the provisions of section 34-1402, Idaho Code, registration shall be required of qualified electors, as defined in section 42-4206, Idaho Code, in any election held in the aquifer recharge district. In addition to the requirements for registration, the election official shall also verify that the elector is a water user, as defined in section 42-4202(1), Idaho Code, or a representative of such a water user, within the district.(")
[42-4207, added 1978, ch. 293, sec. 1, p. 729; am. 1985, ch. 10, sec. 2, p. 15; am. 1995, ch. 118, sec. 77, p. 493.]
The secretary of the district shall give notice of all elections in the district by publication of the notice in accordance with the provisions of section 34-1406, Idaho Code. Notices shall state the time of said election and the location of polling places within the district and the directors to be elected or other question to be voted upon, as the case may be.
[42-4208, added 1978, ch. 293, sec. 1, p. 730; am. 1995, ch. 118, sec. 78, p. 493.]
The election shall be conducted in accordance with the general laws of the state including the provisions of chapter 14, title 34, Idaho Code.
The board of directors shall designate polling places in such number as it may deem necessary. At least ten (10) days before the holding of any election, the board shall appoint three (3) electors to serve as judges of election at each polling place. The judges shall perform the same duties as judges of election under the general laws of the state. Immediately after the election, the judges of election shall forward the official results to the secretary of the district.
[42-4209, added 1978, ch. 293, sec. 1, p. 730; am. 1995, ch. 118, sec. 79, p. 494.]
On the first Monday after each election, or at a time designated by the board of directors, the board shall meet at its usual place of meeting and proceed to canvass the returns. By order entered on its minutes, the board shall declare elected the person or persons having the highest number of votes for each office.
[42-4210, added 1978, ch. 293, sec. 1, p. 730.]
(1) The board of directors annually shall elect a chairman from their number and shall appoint a secretary and a treasurer to hold office during the pleasure of the board. The treasurer shall on his appointment execute and file with the secretary an official bond in such amount as may be fixed by the board of directors, and shall thereafter from time to time execute and file such further bonds as may be required by the board in amounts fixed by it, which amounts shall be at least fifty percent (50%) of the maximum probable amount of money in the treasurer’s hands at any one time. All such official bonds shall be executed by a lawfully qualified surety company.
(2) The board of directors shall hold a regular annual meeting and may hold such special meetings as may be necessary for the proper transaction of business. Special meetings may be held on seventy-two (72) hours’ notice of the chairman or a majority of the members. A majority shall constitute a quorum for the transaction of business and the concurrence of a majority of the members shall be necessary to constitute the action of the board. All meetings of the board shall be public and all records of the board shall be open to the inspection of any member water user, or representative thereof during business hours.
(3) The members of the board shall each receive not more than twenty-five dollars ($25.00) nor less than five dollars ($5.00) per day for each day spent attending the meetings or while engaged in official business of the board, and actual and necessary travel expenses. The term "actual and necessary expenses" shall include all traveling and lodging expenses necessarily incurred by any director when absent from his residence in the performance of the duties of his office. The board shall fix the compensation to be paid to the other officers of the district.
(4) In case of a vacancy in the office of director occurring otherwise than by the expiration of a term, the remaining members of the board of directors shall fill such vacancy by appointing thereto a qualified water user, member of the district, or representative thereof, possessing the qualifications of the director whose office has become vacant to serve the remainder of the term.
[42-4211, added 1978, ch. 293, sec. 1, p. 730; am. 1985, ch. 10, sec. 3, p. 15.]
The board shall have the following powers and duties:
(1) to manage and conduct the business and affairs of the districts;
(2) to employ and appoint such agents, officers and employees as may be required and prescribe their duties;
(3) to make and execute all necessary contracts, including contracts for the construction of diversion works and other facilities, contracts for the transportation of water through existing canals or other diversion works owned or operated by a canal company or companies or other entity or entities, and contracts with those persons and/or entities designated in section 42-4223, Idaho Code, for the purposes therein specified;
(4) to construct and operate diversion works, recharge ponding areas and injection wells, subject to such standards and specifications as the director of the department of water resources shall determine;
(5) to obtain from the federal government such permits as may be required for the accomplishment of the purposes of the district;
(6) to enter upon any land and make surveys for purposes of determining the best location for the diversion works and other facilities necessary to accomplish the purposes of the district;
(7) to acquire, either by purchase, condemnation or other legal means, all lands and other property necessary for the construction, use and supply, maintenance, repair and improvement of diversion works and facilities. The power of condemnation shall be limited to the acquisition of land and/or easements for right-of-way purposes only. The appropriation and storage underground of waters by the aquifer recharge district, together with the acquisition of such rights-of-way for the construction, maintenance and improvement of such diversion works and facilities as are necessary to the accomplishment of the purposes of the district is hereby declared to be a public use, subject to the regulation and control of the state in the manner prescribed by law.
(8) to levy assessments for the maintenance and operation of the diversion works and facilities of the district, as well as assessments for the payment of such fees as are charged to the district by any canal company or companies or other entity or entities owning or operating canals or other diversion works used by the district;
(9) to levy assessments for the retirement of indebtedness incurred for purposes of financing construction of the diversion works and facilities of the district and the construction of such capital improvements thereto as are deemed necessary by the board;
(10) to incur indebtedness, the term of which shall not exceed ten (10) years, by contract with a money-lending institution;
(11) to do any and every lawful act necessary to be done that the provisions of this chapter may be carried out.
(12) At such intervals as the director of the department of water resources shall establish, the board of directors shall report to the director, in the form and manner prescribed by him, concerning the operations of the district. The report shall indicate the amount of water being diverted by the district for purposes of recharge, the locations of the points of recharge, the flow of water at those discharge points affected by the recharge and such other information as the director may require.
(13) The board of directors annually shall submit to the director of the department of water resources a financial report setting forth the financial condition of the district. The report shall be in the form prescribed by the director and shall specify the amount of the assessments levied by the district for that year, the outstanding obligations of the district, and such other information as the director may require. The director shall have the authority to conduct an audit of the financial transactions and operations of the district.
[42-4212, added 1978, ch. 293, sec. 1, p. 731; am. 1982, ch. 204, sec. 4, p. 541.]
The legal title to all property acquired under the provisions of this chapter shall immediately, and by operation of law, vest in the aquifer recharge district and shall be held by the district in trust for, and is hereby dedicated and set apart to, the uses and purposes set forth in this chapter. The board of directors is hereby authorized and empowered to hold, use, acquire, manage, occupy and possess said property as herein provided.
[42-4213, added 1978, ch. 293, sec. 1, p. 733.]
The board is hereby authorized and empowered to take conveyance of or other assurances for all property acquired by it under the provisions of this chapter in the name of the district for the purposes herein expressed. The board may institute and maintain any and all actions and proceedings, and suits at law and in equity necessary or proper to order to carry out the provisions of this chapter, or to enforce, maintain, protect or preserve any and all rights created by this chapter or acquired in pursuance thereof. In all courts, actions, suits or proceedings the board may sue, appear and defend, in person or by attorneys and in the name of the aquifer recharge district.
[42-4214, added 1978, ch. 293, sec. 1, p. 733.]
The secretary of the board of directors shall be the assessor of the district, and on or before August 1 of each year shall prepare an assessment book containing a full and accurate list of all water users within the district.
At a regular meeting of the board between August 1 and November 1 of each year, the board of directors shall determine the amount necessary to be raised for the maintenance and operation of the works and facilities of the district and the payment of such fees as may be charged to the district for the use of canals or other diversion works owned or operated by a canal company or companies or other entity or entities, and shall levy assessments against the water users in the district sufficient to raise such amount. Moneys received in payment of such assessments shall be deposited in a separate fund to be known as the maintenance and operation fund. The board also may levy assessments against the water users in the district for the repayment of indebtedness incurred by the board on behalf of the district, as provided in section 42-4216, Idaho Code. Money received in payment of such assessments shall be deposited in a separate fund to be known as the debt retirement fund. The board of directors may, in addition, determine the amount necessary to pay the expenses of making the assessment book, giving notice of assessments and making collections thereof and may levy assessments against the water users in the district sufficient to raise such amount. Moneys received in payment of such assessments shall be deposited in a separate fund to be known as the assessment expense fund.
Each water user shall pay a proportionate share of the total of all amounts to be raised for the purposes aforementioned, which share shall be based on the ratio which the quantity of water such water user is authorized to appropriate under his water right or rights bears to the total quantity of water authorized for appropriation under the water rights of all water users in the district; provided, however, that the combined annual assessment against each water user shall not exceed ten dollars ($10.00) per second foot of water the water user is entitled to appropriate under his water right or rights.
[42-4215, added 1978, ch. 293, sec. 1, p. 733.]
In order to secure funds for the construction of diversion works and facilities of the district, or the construction of any capital improvements thereto, the board of directors may, by resolution duly adopted and entered upon the minutes, incur indebtedness by contract with a money-lending institution; provided, however, that the term of such indebtedness shall not exceed ten (10) years. To secure the repayment of any indebtedness so incurred, the board shall levy assessments over the term of the indebtedness in amounts sufficient to repay the interest and principal as it falls due. Such assessments shall be levied in the manner and shall be subject to the limitations set forth in section 42-4215, Idaho Code.
[42-4216, added 1978, ch. 293, sec. 1, p. 734.]
If in any year the board of directors fails to levy assessments for the repayment of indebtedness in amounts sufficient to meet a payment or payments falling due, the lender may bring an action in the district court of any county in which the district is situated to compel the board to levy assessments in amounts sufficient to insure the payment thereof; provided, however, that the board may not be compelled to increase assessments for the repayment of indebtedness if the maximum annual assessment limitation specified in section 42-4215, Idaho Code, will be exceeded thereby. In the event that the maximum annual assessment limitation has been reached and the assessments for repayment of indebtedness nevertheless will be insufficient to meet a payment of payments falling due, the lender may, in the alternative, seek an order requiring that moneys received by the district in payment of assessments for all purposes be first expended for the repayment of that portion of the indebtedness falling due.
[42-4217, added 1978, ch. 293, sec. 1, p. 735.]
From and after January 1 of any year, all assessments, other than those levied against municipalities, shall be liens against the property of water users to which the water rights used to determine assessments are appurtenant. Such liens shall not be removed until the assessments are paid or the property is sold for the payment thereof.
[42-4218, added 1978, ch. 293, sec. 1, p. 735.]
Assessments shall be due and payable on or before December 31 of each year. On or before the first day of December, the treasurer of the district shall publish a notice for a period of not less than two (2) weeks in a newspaper published or having general circulation in each of the counties in which any part of the district is situated setting forth the date by which assessments must be paid and the times and places at which payment may be made.
Assessments unpaid on December 31 shall be delinquent and shall bear interest at the rate of eight percent (8%) per annum until paid. Delinquent assessments, in addition, shall be subject to a penalty in the amount of fifty cents ($.50) per second foot of water the water user is entitled to appropriate under the water right or rights forming the basis of his assessment.
The maximum annual assessment limitation specified in section 42-4215, Idaho Code, shall apply only to the amount of the assessment itself, and the interest and penalty herein prescribed shall be collectible along with the amount of the delinquent assessment, notwithstanding that the assessment itself is at the maximum specified in that section.
[42-4219, added 1978, ch. 293, sec. 1, p. 735.]
On or before the 15th day of January of each year the treasurer shall enter the amount of all delinquent assessments upon the assessment book, which entry shall be considered to be dated as of the first day of January. Such entry shall have the force and effect of a sale to the treasurer of the district as grantee in trust for the district of all property to which a lien has attached as a result of such unpaid assessments.
The treasurer shall compile a list of such delinquency entries which shall contain the names of the persons or entities to whom the assessments were directed and the amount of such delinquent assessments together with the amount of the penalties to be added thereto. A certified copy of the delinquency list shall be filed with the county recorder of each county in which the properties affected by such delinquent assessments are located.
[42-4220, added 1978, ch. 293, sec. 1, p. 736.]
The manner in which property subject to a lien for nonpayment of assessments may be redeemed, and if not redeemed, shall be sold as provided in sections 43-712, 43-715 through 43-721, 43-724 and 43-726, Idaho Code, to the extent that the provisions thereof are in keeping with the provisions of this chapter.
[42-4221, added 1978, ch. 293, sec. 1, p. 736.]
Municipalities shall be solely liable for payment of the assessments levied against them, but in order that sufficient funds shall be available therefore, municipalities within the district are hereby empowered and directed to levy a special tax upon all the taxable property within the municipality in an amount equal to the assessment.
Assessments against municipalities unpaid on the date specified in section 42-4219, Idaho Code, shall become delinquent, shall bear interest and shall be subject to the penalty as therein provided, but the provisions of sections 42-4220 and 42-4221, Idaho Code, shall not apply thereto. The board of directors may proceed in any other manner authorized by law for the collection of any such delinquent assessments.
[42-4222, added 1978, ch. 293, sec. 1, p. 736.]
Any privately owned electrical generating company, or any person or entity who has acquired or is in the process of acquiring a right to appropriate water downstream from the boundaries of the district may enter into a contract with the board of directors of the aquifer recharge district for the receipt of benefits from the district. The consideration to be paid by any company, person or entity so contracting shall be as specified in the contract. Approval of any such contract by the director of the department of water resources shall be required before the contract shall become effective.
A contract executed and approved as herein provided may be used by the department of water resources as the basis for issuance of a permit to the electrical generating company or downstream appropriator for the appropriation and storage of such water as shall become available thereto as a result of the functioning of the district. Water appropriated under any such permit shall be deemed to be stored water and the use and manner of appropriation thereof shall be subject to all applicable limitations and restrictions imposed by law, including the provisions of subsection (3) of section 42-4201 or subsection (3) of section 42-234, Idaho Code.
Prior to the formation of the aquifer recharge district, any such electrical generating company or downstream appropriator may file with the director of the department of water resources a letter of intent to enter into such a contract.
[42-4223, added 1978, ch. 293, sec. 1, p. 736; am. 1982, ch. 204, sec. 5, p. 542; am. 2009, ch. 242, sec. 3, p. 744.]
(1) All water users, as defined in section 42-4202(1), Idaho Code, included within the district and who have not obtained exclusion as hereinafter provided, shall remain within and be subject to assessment by the district, notwithstanding the absence of their signatures on the petition for formation of the district, and notwithstanding any change in the ownership or control of the property of the water user, whether by way of transfer, exchange, conveyance, assignment, lease, or otherwise, to which the water right or rights used to determine assessments are appurtenant. Municipal water users, as defined in section 42-4202(2), Idaho Code, included within the district shall remain at their election, within and be subject to assessment by the district unless excluded in the manner hereinafter provided.
(2) Any water user, as defined in section 42-4202(1), Idaho Code, who has obtained exclusion from the district, but who nevertheless is benefited by the district, shall remain excluded; provided, however, that any person or entity succeeding the water user in the ownership or control of property, whether by way of transfer, exchange, conveyance, assignment, lease, or otherwise, to which is appurtenant a water right that, barring the exclusion, would have been used to determine assessments, shall be deemed included within and subject to assessment by the district.
(3) Any individual or entity whose permit to appropriate water was acquired after the formation of the district, but who qualifies as a water user under section 42-4202(1), Idaho Code, in all other respects, shall be deemed included within and subject to assessment by the district if benefited either directly or indirectly by the district.
[42-4224, added 1978, ch. 293, sec. 1, p. 737.]
After the formation of the district, any water user included within the district may file with the board of directors a petition in writing praying for exclusion from the district. All water users seeking exclusion as are united in interest or to which the same state of facts apply may unite in the same petition. The grounds for exclusion and the time limitations for filing any petition hereunder shall be as follows:
(1) The water user will not be benefited by the functioning of the district. A petition alleging this ground for exclusion must be filed within ninety (90) days after the formal appointment of the first board of directors by the department of water resources. Any such petition filed after the ninety (90) day period has elapsed shall not be accepted or considered.
(2) The water user has not benefited by the functioning of the district. A petition alleging this ground for exclusion shall be filed no earlier than five (5) years after the declaration of the formation of the district by the director of the department of water resources.
A petition alleging either of the foregoing grounds for exclusion shall be acknowledged by all the petitioners and shall state in detail the reasons why it is claimed that the petitioners should be excluded from the district.
Immediately after their formal appointment, the board of directors shall cause notice of the deadline for filing petitions under the provisions of subsection (1) of this section and a copy of the order of formation of the district and a map indicating the boundaries of the district to be posted in three (3) public places in each county in which a part of the district is situated. In addition, the board shall publish notice of the deadline and the locations at which the order of formation and map of the district may be inspected for at least four (4) successive weeks in a newspaper published or having general circulation in each of the counties in which any part of the district is situated.
[42-4225, added 1978, ch. 293, sec. 1, p. 738.]
(1) The petition shall be heard by the board of directors within sixty (60) days of filing of the petition and if no hearing is held within that time the petitioner or petitioners shall be deemed excluded from the district. If, prior to the date set for the hearing, the board issues an order excluding the petitioner or petitioners, no hearing need be held. The board shall give each petitioner notice of the time and place of the hearing in writing not less than fifteen (15) days prior to the hearing. It shall be sufficient to mail such notice by certified or registered mail to each petitioner’s mailing address as indicated on the petition.
(2) At the hearing, if any, the petitioner or petitioners must establish by competent evidence the allegations of the petition. The chairman of the board is hereby empowered to administer oaths for the purpose of the hearing. If the allegations of the petition are established the board shall enter an order excluding the petitioner or petitioners, or any of them, from the district, which order shall reflect the nature of any outstanding and/or continuing liabilities to which the petitioner so excluded shall remain subject under the provisions of section 42-4228, Idaho Code.
[42-4226, added 1978, ch. 293, sec. 1, p. 738.]
An appeal shall lie from a decision of the board of directors denying the petition or any part thereof to the district court of the county where the water user or water users are located. The appeal shall be taken in the same manner as appeals are taken from the board of county commissioners. If the district court excludes the water user or water users, or any of them, the time of exclusion shall date from the time of the hearing before the board of directors. The order of the district court excluding a water user or water users shall reflect the nature of any outstanding and/or continuing liabilities to which each water user so excluded shall remain subject under the provisions of section 42-4228, Idaho Code.
[42-4227, added 1978, ch. 293, sec. 1, p. 739.]
Any water user excluded from the district on the grounds specified in section 42-4225(1), Idaho Code, shall not be subject to assessment by the district for any purpose. Any water user excluded from the district on the grounds specified in section 42-4225(2), Idaho Code, shall not be subject to assessment for maintenance and operation of the works and facilities of the district or for assessment expenses after the entry of the order of exclusion, or in case of appeal, the effective date of exclusion, but shall remain subject to the following liabilities until discharged:
(1) Such excluded water user shall remain liable for payment of assessments previously levied and unpaid at the time of the entry of the order of exclusion, or in case of appeal, the effective date of exclusion;
(2) Such excluded water user, notwithstanding his exclusion, shall remain liable to pay his proportionate share, such share to be computed as specified in section 42-4215, Idaho Code, of any indebtedness of the district already incurred and outstanding at the time of the entry of the order of exclusion, or in case of appeal, the effective date of exclusion, but such water user shall not be liable upon any indebtedness incurred thereafter.
Any water user, as defined in section 42-4202(1), Idaho Code, who, after exclusion, remains subject to either or both of the liabilities specified herein shall, in addition, remain subject to the provisions of sections 42-4218, 42-4219, 42-4220 and 42-4221, Idaho Code, until such liabilities have been discharged. Any municipal water user, as defined in section 42-4202(2), Idaho Code, who, after exclusion, remains subject to either or both of the liabilities specified herein, shall, in addition, remain subject to the provisions of section 42-4222, Idaho Code, until such liabilities have been discharged.
Upon the discharge of any liability, the district shall issue to the water user its certificate of full payment executed by the chairman of the board and the secretary of the district, and acknowledged so that the certificate may be recorded in the records of the county wherein the property of the water user affected by such liability and the discharge thereof is situate.
[42-4228, added 1978, ch. 293, sec. 1, p. 739.]
On appeal, costs shall be taxed as in other civil cases. Costs of recording the order of exclusion shall be borne by petitioners when the order is entered by the board of directors and by the aquifer recharge district when entered by the district court.
[42-4229, added 1978, ch. 293, sec. 1, p. 740.]
The decision and order of the board of directors, or of the district court in case of appeal, excluding the petitioner or petitioners from the district shall be filed for record in the recorder’s office of the counties within which the district is situated.
[42-4230, added 1978, ch. 293, sec. 1, p. 740.]
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.
[42-4231, added 1978, ch. 293, sec. 1, p. 740.]
(1) The legislature finds that:
(a) Idaho’s economy and the welfare of its citizens depend upon a reliable and sustainable water supply. It is essential, therefore, that the state continues to identify, develop, and implement projects that augment and sustain the state’s water resources.
(b) The cloud seeding program developed and implemented by the Idaho water resource board, in cooperation with interested stakeholders, presents a unique and innovative opportunity to augment and sustain the water resources of the state.
(c) Public benefits of cloud seeding include drought mitigation, protection of water rights, protection of municipal and business activities dependent on water, water quality, recreation, and fish and wildlife.
(d) Data accumulated and analysis undertaken since the initiation of the cloud seeding program demonstrates that cloud seeding has resulted in an annual increase in the water supplies in the basins in which cloud seeding has been performed. However, additional research and analysis is necessary to determine the precise nature and extent of those increases. The legislature recommends that such research be continued as the cloud seeding program progresses and that annual reports on such research be provided to the legislature.
(2) The legislature recognizes that expansion of the cloud seeding program may benefit basins throughout the state that experience depleted or insufficient water supplies, and the legislature recommends that the water resource board complete an assessment of basins and work with affected stakeholders to implement the cloud seeding program in basins that would benefit from the program.
(3) Nothing in this chapter shall be construed to affect any permitting or reporting requirements that may exist pursuant to federal law or regulation.
[42-4301, added 2021, ch. 256, sec. 1, p. 787; am. 2026, ch. 86, sec. 1, p. 453.]
As used in this chapter:
(1) "Board" means the Idaho water resource board.
(2) "Cloud seeding" means all acts undertaken to artificially distribute or create nuclei in cloud masses for the purposes of inducing precipitation, cloud forms, or other meteorological parameters. Cloud seeding for the suppression of fog and frost prevention measures for the protection of orchards and crops are excluded from the coverage of this chapter.
(3) "Methods used for cloud seeding" means methods to distribute or create nuclei in cloud masses, including ground generators, airplanes, drones, or other application methods.
(4) "Operational period" means the dates during which cloud seeding activities are authorized and conducted within a defined basin or project area, as approved by the board, typically October 1 through April 30.
[42-4302, added 2026, ch. 86, sec. 2, p. 454.]
(1) The board shall authorize, and may sponsor or develop, local or statewide cloud seeding programs. The board may contract any individual or organization for consultation and assistance in developing cloud seeding programs or in furthering research related to cloud seeding.
(2) The board shall conduct public meetings, in accordance with chapter 2, title 74, Idaho Code, when discussing or acting on cloud seeding programs in Idaho. Such meetings shall include an opportunity for written and oral public comment.
(3) The board shall compile and publish an annual report detailing:
(a) Operational data, including dates, locations, and methods used for cloud seeding operations conducted during the reporting period;
(b) The state of the science, including Idaho-specific analysis, as it relates to water, soil, or air quality, and other environmental impacts, including cumulative impacts, associated with cloud seeding activities;
(c) Public meetings related to cloud seeding and associated documentation, including public comments or other feedback received regarding cloud seeding operations; and
(d) The effectiveness of outcomes achieved, such as increases in snowpack due to cloud seeding.
(4) During the operational period, each operator shall submit a monthly report on cloud seeding operations to the board. The report shall include:
(a) Locations of ground generators;
(b) Flight paths;
(c) Amount and type of cloud seeding activities that occurred;
(d) Amount and type of seeding materials used;
(e) Any suspension periods; and
(f) Methods of operation.
(5) Any individual, organization, or entity that independently conducts cloud seeding operations within the state of Idaho shall adhere to the requirements and conditions of the authorization issued by the board.
(6) Water generated through cloud seeding shall be distributed in accordance with the prior appropriation doctrine.
(7) Cloud seeding conducted to enhance rainfall, mitigate hail, disperse fog, or prevent frost is excluded from the provisions of this chapter.
(8) Failure to comply with the reporting or disclosure requirements, as provided by this chapter, shall result in suspension of authorization for cloud seeding activities until compliance is achieved, as determined by the board.
[42-4303, added 2026, ch. 86, sec. 3, p. 454.]
(1) State funds may be used or expended on cloud seeding programs only in basins where the board finds that existing water supplies are not sufficient to support existing water rights, water quality, recreation, or fish and wildlife uses dependent on those water supplies.
(2) The act of cloud seeding pursuant to a project funded in whole or in part by the state of Idaho or authorized by the board shall:
(a) Not be the basis of any claim of liability, including trespass or public or private nuisance, except when such claims arise from acts of gross negligence or willful misconduct; and
(b) Not require any state or local permits.
[42-4304, added 2026, ch. 86, sec. 4, p. 455.]
The provisions of this chapter may be known and cited as the "Levee District Act."
[42-4401, added 1990, ch. 396, sec. 1, p. 1108.]
It is hereby recognized by the legislature that the protection of life and property from the containment of water stored for irrigation, the storage of winter flows and excess waters for irrigation purposes, and flood waters are of great importance to this state. It is therefore declared to be the policy of the state to provide for the storage and containment of irrigation water and the prevention of flood damage in a manner consistent with the conservation and wise development of our water resources and thereby to protect and promote the health, safety and general welfare of the people of this state.
[42-4402, added 1990, ch. 396, sec. 1, p. 1108.]
As used in this chapter:
(1) "Board" or "board of commissioners" means the board of commissioners of the levee district.
(2) "Commissioner" means a member of the board of commissioners of the levee district.
(3) "District" means any levee district organized under the provisions of this chapter.
(4) "Levee" means a retaining structure alongside a natural lake which has a length that is two hundred (200) times or more greater than its greatest height measured from the lowest elevation of the toe to the maximum crest elevation of the retaining structure.
(5) "State" means the state of Idaho.
[42-4403, added 1990, ch. 396, sec. 1, p. 1108.]
Any portion of a county requiring the maintenance, operation, or construction of a levee to contain irrigation water or to prevent flooding, may be organized into a levee district, and when so organized such district and the board of commissioners hereinafter provided for shall have and possess the power herein conferred by law upon such district and board of commissioners, and said district shall be known and designated as levee district no. ……. of the county of …………., of the state of Idaho, and shall have the right to sue and be sued by and in the name of its board of commissioners hereinafter provided for, and shall have perpetual succession and shall adopt and use a seal. The commissioners hereinafter provided for and their successors in office shall, from the time of the organization of such levee district, have the power and it shall be their duty, to manage and conduct the business and affairs of the district, and make and execute all necessary contracts, employ and appoint such agents, officers and employees as may be required, and prescribe their duties, and perform such other acts as herein provided, or that may hereafter be provided by law.
[42-4404, added 1990, ch. 396, sec. 1, p. 1109.]
For the purpose of the formation of a levee district a petition shall be presented to the clerk of the district court of the county in which the greater portion of the lands of the proposed levee district are located. The petition must be signed by at least one-fourth (1/4) of the taxpayers of the district who pay a general tax on real property which is owned by them within the proposed district. The petition shall set forth:
(1) The name of the proposed district;
(2) The object of the organization of the proposed levee district;
(3) A designation of the temporary boundaries of the district;
(4) The approximate number of acres of land in the proposed district therein;
(5) A description of the levee to be maintained, operated or constructed;
(6) The general location of the levee;
(7) A statement that the establishment of the district and the proposed maintenance, operation or construction of the levee will be conducive to the public health, convenience and welfare, or increase the public revenue, or that the establishment of said district and the maintenance, operation, or construction of the levee is a proper and advantageous method of accomplishing the relief sought; and
(8) A prayer for organization of the district.
[42-4405, added 1990, ch. 396, sec. 1, p. 1109.]
The petitioners for formation of a levee district shall, at the time of the filing of the petition, file a bond with the clerk of the district court of the county in which the proposed district is to be located. The bond shall run to the state of Idaho and shall be in the penal sum of one thousand dollars ($1,000) with two (2) or more sureties, to be approved by the judge of the district court.
In case said district be not established, then all costs shall be collectible on such bond. Any person having a charge against said district shall have a right of action on such bond.
After the petition seeking formation of a levee district is filed with the clerk of said court, no petitioner shall be allowed to withdraw his name or land therefrom without tendering into court his pro rata share of all costs and expenses incurred by petitioners to the date of such withdrawal.
[42-4406, added 1990, ch. 396, sec. 1, p. 1109.]
The district court sitting in and for any county in this state, or any judge thereof in vacation, is hereby vested with jurisdiction, power and authority to establish levee districts which may be entirely within or partly within and partly without the judicial district in which said court is located.
[42-4407, added 1990, ch. 396, sec. 1, p. 1110.]
Immediately after the filing of the petition for formation of a levee district the judge of the court shall fix a time for the hearing on the petition by order made by him, which order shall provide that said petition and notice of hearing be published for at least three (3) successive weeks in some weekly newspaper or newspapers, printed and published in said county or counties in which the lands are situated, and in case no such paper is published in such county, then in some paper of general circulation therein; together with a notice of the time and place at which such judge will consider said petition. The last date of publication shall be not less than ten (10) days nor more than twenty (20) days before the date of the hearing.
[42-4408, added 1990, ch. 396, sec. 1, p. 1110.]
On the day fixed for such hearing or at any adjournment thereof the court shall ascertain from the tax rolls of the county or counties in which the district is located or into which it extends, the total number of taxpayers within the proposed district who pay a general tax on real property owned by them within the district.
If the court finds that no petition has been signed and presented in conformity with this chapter, or that the material facts are not as set forth in the petition filed, it shall dismiss said proceedings and adjudge the costs against the signers of the petition in such proportion as it shall deem just and equitable. No appeal or writ of error shall lie from an order dismissing said proceedings; but nothing herein shall be construed to prevent the filing of a subsequent petition or petitions for similar improvements or for a similar district, and the right so to renew such proceedings is hereby expressly granted and authorized.
Any time after the filing of the petition for the organization of a district and before the day fixed for the hearing thereon, the owner or owners of any real property within the proposed district may file an objection with the court stating reasons why said property should not be included therein, why his land or any part thereof will not be benefited by the proposed district, and praying that said property be excluded therefrom. Such objection shall be duly verified and shall describe the property sought to be excluded. The court shall, at the hearing, examine and take testimony and evidence on all objections to inclusion in the district. In case any owner of real estate included in said proposed district shall satisfy the court that his real estate, or any part thereof, has been wrongfully included therein or will not be benefited thereby then the court shall exclude such real estate as will not be benefited.
Upon said hearing, if it shall appear that a petition for the organization of a district has been signed and presented as hereinabove provided, in conformity with this chapter, and the allegations of the petition are true, the court shall, by order duly entered of record, direct that the question of the organization of the district be submitted to the qualified electors of the district at an election to be held, subject to the provisions of section 34-106, Idaho Code, for that purpose, and such order shall appoint three (3) qualified electors of the district as judges of said election. The clerk of the court having jurisdiction shall publish notice of the time and place of an election to be held in the district.
Such election shall be held and conducted in the same manner as general elections in this state, except that the court shall establish as many election precincts within such proposed district as are deemed necessary, shall define the boundaries thereof, which precincts and boundaries may thereafter be changed by the board of commissioners of such district if so organized.
[42-4409, added 1990, ch. 396, sec. 1, p. 1110; am. 1995, ch. 118, sec. 80, p. 494.]
If upon the hearing as provided in section 42-4409, Idaho Code, the court shall order an election for the creation of the district, nominees for the board of commissioners of the district shall be nominated by the filing of petitions in accordance with the provisions of section 34-1404, Idaho Code. The court shall order that the names of persons whom the court finds to have been properly nominated shall be listed upon a ballot submitted to the electors at such election.
[42-4410, added 1990, ch. 396, sec. 1, p. 1111; am. 1995, ch. 118, sec. 81, p. 495.]
In the event the court makes its order providing for such election, it shall prescribe the form of the question and ballot relating to the creation of the district, and also the form of the ballot relating to the election of the commissioners, provided, that all matters may be contained upon one (1) ballot to be submitted to the voters.
At such election the voters shall vote for or against the organization of the district, and for three (3) qualified electors, who shall constitute the board of commissioners of the district, if organized, one (1) commissioner to act until the first biennial election, one (1) until the second, and one (1) until the third biennial election.
The judges of election shall certify the returns of the election to the district court having jurisdiction.
[42-4411, added 1990, ch. 396, sec. 1, p. 1111.]
If a majority of the votes cast at the election are in favor of the organization of the levee district, the district court shall declare the levee district organized, shall give it a corporate name by which, in all proceedings, it shall thereafter be known, and designate the first board of commissioners to have been elected. Thereupon the district shall be a governmental subdivision of the state of Idaho and a body corporate with all the powers of a public or quasi-municipal corporation.
[4204412, added 1990, ch. 396, sec. 1, p. 1112.]
If an order be entered establishing the district, such order shall be deemed final and no appeal or writ of error shall lie therefrom, and the entry of such order shall finally and conclusively establish the regular organization of the said district against all persons except the state of Idaho, in an action in the nature of a writ of quo warranto, commenced by the attorney general within thirty (30) days after said decree declaring such district organized as herein provided, and not otherwise. The organization of said district shall not be directly or collaterally questioned in any suit, action or proceeding except as herein expressly authorized.
[42-4413, added 1990, ch. 396, sec. 1, p. 1112.]
The board of commissioners of such district shall elect one (1) of their number chairman and one (1) secretary, and shall keep minutes of all their proceedings. The levee district commissioners shall hold their meetings for the transaction of business at any place in the county or counties in which the district is located.
[42-4414, added 1990, ch. 396, sec. 1, p. 1112.]
In case a vacancy or vacancies occur in said board by death, failure to appoint, failure to qualify, or resignation of one (1) or more of the members thereof, such vacancy or vacancies shall be filled at once by appointment by the remaining commissioners and said appointee shall serve for the unexpired term or until his successor is elected.
[42-4415, added 1990, ch. 396, sec. 1, p. 1112.]
The board of commissioners of levee districts shall have the following powers and duties:
(1) To annually fix and determine the amount of money required to be raised by taxation to supply funds for costs of maintenance, operation, and/or construction of the levees and equipment of the district, and to levy and cause to be collected assessments on real property within the district in an amount not to exceed eight hundredths percent (.08%) of each dollar of market value for assessment purposes; provided, however, that a higher levy may be approved and ratified by the qualified voters at an election to be held, subject to the provisions of section 34-106, Idaho Code, for that purpose, and said levy shall be certified by the board to the board of county commissioners of the county, or counties, in which said district is located, with directions that at the time and in the manner required by law for levying taxes for county purposes, such board, or boards, of county commissioners shall levy such tax upon the real property within the boundaries of the district. Such certification of levies shall be prepared and forwarded by the board of the levee district to the board, or boards, of county commissioners on or before September 1, of each year.
Such levies shall be levied and collected in the manner provided by law, and the moneys collected shall be turned over to the treasurer or treasurers, of the county, or counties, in which said district is located.
Said moneys shall be public funds and subject to the provisions of the public depository laws of the state.
(2) To employ such personnel as may be necessary to carry out the purposes and objects of this chapter, with the full power to bind said district for the compensation of such personnel.
(3) To sue and be sued in the name of the district; to have a seal, which seal shall be judicially noticed; to have perpetual succession unless terminated as hereinafter provided; to make and execute contracts and other instruments necessary or convenient to the exercise of its power and to promulgate, amend and repeal rules and regulations not consistent with the provisions of this chapter.
(4) To manage and conduct the business and affairs of the district, both within and without the district.
(5) To maintain, operate and/or construct levees for containment of irrigation water and for the prevention of floodwater whether within or without the boundaries of the district, and to enter into contract for the purposes set forth above; provided, however, that the board shall not enter into contracts except in accordance with the provisions of chapter 28, title 67, Idaho Code. However, where it is determined by order of the board that there is an existing emergency, the requirement for sealed competitive bids shall not apply.
(6) To prescribe the duties of officers, agents and employees as may be required.
(7) To establish the fiscal year of the district and to keep records of all business transactions of the district.
(8) To prepare a statement of the financial condition of the district at the end of each fiscal year according to generally accepted accounting principles, and publish in at least one (1) issue of some newspaper published, or in general circulation in, the county, or counties, in which such district is located and to file a certified copy of such financial report with the director of the department of water resources.
(9) To have an audit of the financial affairs of the district as required in section 67-450B, Idaho Code.
(10) To obtain options upon and acquire by purchase, exchange, lease, gift, grant, bequest, devise, or otherwise, any property, real or personal, and improve any properties acquired; to receive income from such properties and to expend such income in carrying out the purposes and provisions of this chapter; to lease any of its property or interest therein in furtherance of the purposes and provisions of this chapter, provided that any contract or agreement for the acquisition, purchase or repair of personal property shall be entered into in accordance with the provisions of chapter 28, title 67, Idaho Code.
(11) To have the power of eminent domain for the use of the district in the maintenance, operation, and construction of its levees or any other use necessary in the carrying out of the provisions of this chapter.
(12) To convey rights-of-way and easements for highways, public roads, public utilities, and for other purposes, over district property, as shall be determined by the board to be in the best interests of the district.
(13) To convey, by deed, bill of sale, or other appropriate instrument, all of the estate and interest of the district, in any real or personal property. Prior to such sale or conveyance, the board shall have the property appraised by three (3) disinterested residents of the district, which appraisal shall be entered in the minutes of the board. The property may be sold at public auction or at a private sale by sealed competitive bids, as the board shall determine, to the highest cash bidder, provided that in no case shall any property of a district be sold for less than its appraised value. All sales by sealed competitive bids shall be advertised as herein provided.
(14) To enter into contracts or agreements with the United States or any of its officers, agents or subdivisions, or with the state or any of its officers, persons or agencies in effectuating, promoting and accomplishing the purposes of this chapter, provided that the district has sufficient moneys on hand, or in their budget for the year in which said contract is entered into, to defray the expenditure of funds called for in such contract without the creation of any indebtedness.
Whenever any such contract shall, by its terms, require the expenditure of funds by the district in excess of the moneys on hand or the funds to be realized from their budget for the year in which said contract is entered into, then such contract may not be entered into by the district until ratified by two-thirds (2/3) of the qualified voters voting at an election to be held, subject to the provisions of section 34-106, Idaho Code, for that purpose, according to the provisions of this chapter.
(15) To bear its allocated share of the cost of any project resulting from any contract or agreement entered into as provided herein.
(16) To take over, administer and maintain pursuant to any agreement or contract entered into in accordance with the provisions of this chapter, any levee project within or without the boundaries of the district undertaken in cooperation with the United States or any of its agencies, or with the state of Idaho or any of its agencies, or any combinations thereof.
(17) To accept donations, gifts and contributions in money, services, or materials or otherwise, from the United States or any of its agencies, or the state of Idaho or any of its agencies or any combinations thereof, and to expend such moneys, services, or materials in carrying on its operations.
(18) To exercise all other powers necessary, convenient or incidental to carrying out the purposes and provisions of this chapter.
[42-4416, added 1990, ch. 396, sec. 1, p. 1112; am. 1993, ch. 327, sec. 22, p. 1214; am. 1993, ch. 387, sec. 14, p. 1432; am. 1995, ch. 118, sec. 82, p. 495; am. 2005, ch. 213, sec. 12, p. 648.]
Any levee district organized under the provisions of this chapter is not to be conducted or operated for profit or with the view of paying dividends, but solely for the benefit and welfare of the residents and property owners of said district.
[42-4417, added 1990, ch. 396, sec. 1, p. 1115.]
Any person or corporation having an interest in, or lien upon, any land situate within the boundaries of a levee district now organized or existing, or hereafter organized under the laws of the state of Idaho, and which land has been, or hereafter may be, assessed for benefits for the maintenance, operation, or construction of levees in such district, as provided in this chapter, as shown by the assessment roll of said district, confirmed by the court, shall have the right personally, or through his agents, attorneys or auditors to examine the books, records and accounts of the board of commissioners and to make copies thereof.
[42-4418, added 1990, ch. 396, sec. 1, p. 1115.]
The legislature hereby declares that the welfare of the people of Idaho is dependent upon the effective management of the ground water resources of this state. The legislature further declares that a need exists for the creation of special districts to provide for financing of repair or abandonment of wells in aquifers which have experienced or are experiencing declines in water level or water pressures because of flow, leakage, and waste from improper construction, maintenance and operation of wells drilled into the aquifer. Creation of these special districts may be initiated upon petition submitted by those owning the rights to use the ground water from any aquifers or parts of an aquifer that has been designated as a critical ground water area pursuant to section 42-233a, Idaho Code, or as a ground water management area pursuant to section 42-233b, Idaho Code.
[42-5101, added 1987, ch. 349, sec. 1, p. 765.]
For purposes of formation of a ground water management district, a petition shall be presented to the department of water resources which shall set forth the object of the organization of the district and the benefits to be provided by the district. The petition shall be accompanied by a map of the proposed district which shall indicate the proposed boundaries of the district, which shall include territory only within the boundaries of a critical ground water area or ground water management area designated by the director of the department of water resources.
The petition shall be signed by no less than fifty percent (50%), measured by the quantities of their various water rights, of the water users located within the proposed boundaries of the district. For purposes of this chapter, "water users" shall include the following:
(1) Individuals, or entities, who are the current holders of a right, acquired in accordance with the provisions of chapter 2, title 42, Idaho Code, or chapter 14, title 42, Idaho Code, to appropriate water and to divert water from the aquifer by means of a well or wells, or who divert water from springs or other water courses emerging from such aquifer, or both.
(2) Cities which obtain water from the aquifer. A city may elect to be included within the proposed district by a majority vote of the members of its city council. The mayor of any city so electing may sign the petition on behalf of the city, and such city shall constitute one (1) water user for purposes of securing the minimum number of signatures required for the petition.
(3) Federal, state, or county government agencies which obtain water from the aquifer.
[42-5102, added 1987, ch. 349, sec. 1, p. 765.]
After receipt of the petition and map, the director shall review and examine the same and may require the submission of such additional or revised data concerning the boundaries of the proposed district, the costs of repairs or abandonment of improperly constructed wells or any other matter relevant to the formation of the district as he may deem necessary. The director shall conduct a hearing on the petition and supporting documents. Notice of the time and place of the hearing shall be published by the director in a newspaper or newspapers published in each of the counties or a newspaper of general circulation therein at least three (3) weeks before the date of the hearing.
Within ninety (90) days after the hearing has been concluded, the director after due consideration of all relevant data and testimony shall determine whether the proposed district will provide the benefits described, whether the boundaries proposed are proper with respect to the benefits to be provided, and whether the formation of the district will serve the interest of the water users proposed to be benefited. On the basis of his determination, the director shall enter an order either establishing the ground water management district and defining the boundaries thereof to reflect the area to be benefited or denying the formation of the district. If the director orders formation of the district, he shall cause copies of the order, duly certified, to be filed with the secretary of the state and board of county commissioners, county recorder, county assessor and county treasurer of each county in which any part of the district is situated.
[42-5103, added 1987, ch. 349, sec. 1, p. 766.]
(1) The board of directors of the ground water management district shall consist of three (3) members. Each member shall be a water user, or representative of a water user within the district.
(2) The first board of directors shall be appointed by the director of the department of water resources. Water users within the district, or groups thereof, may submit to the director, or the director may solicit therefrom, the names of qualified individuals to be considered for appointment to the board.
(3) The term of office of the directors shall be determined by lot so that one (1) member shall serve for a term of three (3) years, one (1) member shall serve for a term of two (2) years, and one (1) member shall serve for a term of one (1) year. Thereafter, members shall serve a three (3) year term and shall be elected as hereinafter provided. If a vacancy occurs, the director shall appoint a successor to serve the remainder of the term.
(4) On the first Tuesday in February following the expiration of the term of the member serving for one (1) year, and on the first Tuesday in February of each year thereafter, an election shall be held at which a director to succeed the one whose term has expired will be elected. Each director so elected shall be a water user or a representative of a water user within the district.
In any election for director, if after the deadline for filing a declaration of intent as a write-in candidate, it appears that only one (1) qualified candidate has been nominated for a directors position, it shall not be necessary for the candidate to stand for election, and the board of directors of the district shall declare such candidate elected as director and the secretary of the district shall immediately make and deliver to such person a certificate of election.
[42-5104, added 1987, ch. 349, sec. 1, p. 766; am. 1995, ch. 118, sec. 83, p. 498.]
Each city which has elected to be and is included within the district shall be entitled to one (1) vote and the vote of the majority of the members of the city council of each such city shall constitute the vote of the city. The voting shall be conducted at a regular meeting of the city council or a special meeting called by the mayor for that purpose to be held on or within a week prior to the date set for election. The voting results shall be certified to by the mayor and forwarded to the secretary of the district prior to the date set for canvassing of election returns by the board of directors. The provisions of section 42-5107, Idaho Code, shall not apply to cities or other government agencies.
[42-5105, added 1987, ch. 349, sec. 1, p. 767.]
Any water user, as defined in subsection (1) of section 42-5102, Idaho Code, or a representative thereof, within the district who possesses the qualifications required of electors under the general laws of the state shall be entitled to vote at any election held under the provisions of this chapter. A representative of a water user shall be so designated by written proxy signed by the water user except that the vote of a federal, state, or county government may be cast by an elected or appointed official of the agency, or his designee.
[42-5106, added 1987, ch. 349, sec. 1, p. 767.]
Pursuant to the provisions of section 34-1402, Idaho Code, registration shall be required of qualified electors, as defined in section 42-4206, Idaho Code, in any election held in the ground water management district. In addition to the requirements specified in section 34-1402, Idaho Code, the election official shall also verify that the elector is a water user, as defined in subsection (1) of section 42-5102, Idaho Code, or a representative of such water user, within the district.
[42-5107, added 1987, ch. 349, sec. 1, p. 767; am. 1995, ch. 118, sec. 84, p. 498.]
The secretary of the district shall give notice of all elections in the district by publication of the notice in accordance with the provisions of section 34-1406, Idaho Code. Notices shall state the time of the election and the location of polling places within the district and the directors to be elected or other question to be voted upon, as the case may be.
[42-5108, added 1987, ch. 349, sec. 1, p. 767; am. 1995, ch. 118, sec. 85, p. 499.]
The election shall be conducted in accordance with the general laws of the state including the provisions of chapter 14, title 34, Idaho Code.
The board of directors shall designate polling places in such number as it may deem necessary. At least ten (10) days before the holding of any election, the board shall appoint three (3) electors to serve as judges of election at each polling place. The judges shall perform the same duties as judges of election under the general laws of the state. Immediately after the election, the judges of election shall forward the official results to the secretary of the district.
[42-5109, added 1987, ch. 349, sec. 1, p. 768; am. 1995, ch. 118, sec. 86, p. 499.]
On the first Monday after each election, or at a time designated by the board of directors, the board shall meet at its usual place of meeting and proceed to canvass the returns. By order entered on its minutes, the board shall declare elected the person or persons having the highest number of votes for each office.
[42-5110, added 1987, ch. 349, sec. 1, p. 768.]
(1) The board of directors annually shall elect a chairman from their number and shall appoint a secretary and a treasurer to hold office at the pleasure of the board. The treasurer shall on his appointment execute and file with the secretary an official bond in such amount as may be fixed by the board of directors, and shall thereafter from time to time execute and file such further bonds as may be required by the board in amounts fixed by it, which amounts shall be at least fifty percent (50%) of the maximum probable amount of money in the treasurer’s hands at any one (1) time. All such official bonds shall be executed by a lawfully qualified surety company.
(2) The board of directors shall hold a regular annual meeting and may hold such special meetings as may be necessary for the proper transaction of business. Special meetings may be held on seventy-two (72) hours’ notice of the chairman or a majority of the members. A majority shall constitute a quorum for the transaction of business and the concurrence of a majority of the members shall be necessary to constitute the action of the board. All meetings of the board shall be public and all records of the board shall be open to the inspection of any member water user, or representative thereof during business hours.
(3) The members of the board shall each receive not more than twenty-five dollars ($25.00) nor less than five dollars ($5.00) per day for each day spent attending the meetings or while engaged in official business of the board, and actual and necessary travel expenses. The term "actual and necessary expenses" shall include all traveling and lodging expenses necessarily incurred by any director when absent from his residence in the performance of the duties of his office. The board shall fix the compensation to be paid to the other officers of the district.
(4) In case of a vacancy in the office of director occurring otherwise than by the expiration of a term, the remaining members of the board of directors shall fill such vacancy by appointing thereto a qualified water user, member of the district, or representative thereof, possessing the qualifications of the director whose office has become vacant to serve the remainder of the term.
[42-5111, added 1987, ch. 349, sec. 1, p. 768.]
The board shall have the following powers and duties:
(1) To manage and conduct the business and affairs of the district;
(2) To employ and appoint such agents, officers and employees as may be required to perform the duties as set out in this chapter and prescribe their duties;
(3) To incur indebtedness, for the purpose of financing repair or abandonment of wells in the district, the term of which shall not exceed ten (10) years, by contract with a money-lending institution, including the Idaho water resource board;
(4) To levy assessments for the retirement of indebtedness incurred for purposes of financing repair or abandonment of wells in the district and for the cost of operating the district, including participating in state and/or federal aquifer monitoring programs;
(5) To contract with owners of wells in the district which require repair or abandonment as ordered by the director of the Idaho department of water resources to effectuate repair or abandonment of such wells. The contracts may include financial participation in repair or abandonment, as necessary, to meet minimum well construction standards adopted by the Idaho water resource board, as follows:
(a) Repair of wells which owners intend to continue to use: grants of up to fifty percent (50%) of total cost of repair; loans at interest rates and terms determined by the board of directors of up to one hundred percent (100%) of total cost of repair;
(b) Abandonment of wells which owners do not intend to continue to use: grants or loans of up to one hundred percent (100%) of total cost; total cost of repair or abandonment includes all costs, including technical evaluation, design and inspections;
(6) To contract with the director of the department of water resources to evaluate proposed contracts with well owners to evaluate the repairs or other work proposed and the costs of the proposed work;
(7) To adopt rules, in accordance with the administrative procedure act, chapter 52, title 67, Idaho Code, for determining the percentage of the total repair or abandonment cost that the district will grant or loan, the maximum amounts of grants and loans and their terms, a procedure for determining which water users will be given the financial assistance offered by the district, and a limitation on the total indebtedness of the district. For the purposes of chapter 52, title 67, Idaho Code, the district shall be considered an agency. Among the factors to be considered by the board of directors in the adopted rules shall be the following:
(a) Characteristics of the well to be repaired or abandoned; i.e., location, depth, diameter, depth to water or water pressure in the well, rate of leakage above and below land surface, and the purpose of the well;
(b) Financial ability of the owner;
(c) Estimated relative impact of the repair or abandonment on water levels or pressures in the aquifer and in surrounding wells;
(d) Total number and estimated total cost of repairs to be made in the district as compared to the repayment capability from allowable annual assessments to be collected by the district; and
(e) Orders and recommendations of the director of the Idaho department of water resources;
(8) To accept gifts and grants or to enter into cost share agreements with any person, corporation, association or governmental agency in furtherance of the purposes of this chapter;
(9) To enter upon any land to make inventories, surveys, and monitoring or construction inspections in furtherance of the purposes of this chapter;
(10) To do any and every lawful act necessary to be done that the provisions of this chapter may be carried out;
(11) At such intervals as the director of the department of water resources shall establish, the board of directors shall report to the director, in the form and manner prescribed by him, concerning the operations of the district;
(12) The board of directors annually shall submit to the director of the department of water resources a financial report setting forth the financial condition of the district. The report shall be in the form prescribed by the director and shall specify the amount of the assessments levied by the district for the year, the outstanding obligations of the district, and such other information as the director may require. The director shall have the authority to conduct an audit of the financial transactions and operations of the district.
(13) To adopt and implement a plan for the repair of leaking artesian wells within the district.
[42-5112, added 1987, ch. 349, sec. 1, p. 769; am. 1995, ch. 294, sec. 2, p. 1037.]
The secretary of the board of directors shall be the assessor of the district, and on or before August 1 of each year shall prepare an assessment book containing a full and accurate list of all water users within the district.
At a regular meeting of the board between August 1 and November 1 of each year, the board of directors shall determine the amount necessary to be raised for payment of the annual payment on any and all indebtedness of the district for the following year. Money received in payment of such assessments shall be deposited in a separate fund to be known as the debt retirement fund. The board of directors may, in addition, determine the amount necessary to pay the expenses of making the assessment book, giving notice of assessments and making collections thereof and for the cost of contracts with state or federal agencies for monitoring programs, or evaluation of proposed contracts, and may levy assessments against the water users in the district sufficient to raise such amount. Money received in payment of such assessments shall be deposited in a separate fund to be known as the operating expense fund.
Each water user shall pay a proportionate share of the total of all amounts to be raised for the purposes aforementioned, which share shall be based on the ratio which the quantity of water such water user is authorized to appropriate under his water right or rights bears to the total quantity of water authorized for appropriation under the water rights of all water users in the district; provided, however, that the combined annual assessment against each water user shall not exceed one hundred dollars ($100) per second foot of water the water user is entitled to appropriate under his water right or rights, except, that the district may establish a ten dollar ($10.00) minimum assessment for any water user.
[42-5113, added 1987, ch. 349, sec. 1, p. 770.]
In order to secure funds for the repair or abandonment of wells in the district, the board of directors may, by resolution duly adopted and entered upon the minutes, incur indebtedness by contract with a money-lending institution; provided, however, that the term of such indebtedness shall not exceed ten (10) years. To secure the repayment of any indebtedness so incurred, the board shall levy assessments over the term of the indebtedness in amounts sufficient to repay the interest and principal as it falls due. Such assessments shall be levied in the manner and shall be subject to the limitations set forth in section 42-5113, Idaho Code, and may only be levied if the indebtedness has been approved at the election contained in sections 42-5115 through 42-5119, Idaho Code.
[42-5114, added 1987, ch. 349, sec. 1, p. 771.]
Whenever the board shall by resolution adopted by a two-thirds (2/3) majority of the said board, determine that the interest of said district and the public interest or necessity demand the reconstruction, rehabilitation, replacement and improvement of any well or other related structures and works together with all necessary appurtenances related thereto, in order to preserve, restore, protect and maintain rights of storage, diversion and delivery of water necessary and appurtenant to the purposes for which such district and other like similarly situated districts were organized and shall set forth the amount of obligation or contract indebtedness proposed to be issued by the district under the provisions of this chapter, said board shall be required to order the submission of the proposition of issuing such contract indebtedness for the purposes set forth in said resolution to the vote of the qualified electors of the district as defined in section 42-5107, Idaho Code, at an election to be held, subject to the provisions of section 34-106, Idaho Code, for that purpose only if within fifteen (15) days after the passage of such resolution a referendum petition signed by legal voters equal in number to not less than ten per cent (10%) of the electors of the district, based upon the aggregate vote cast at the general election of officers of the district next preceding the filing of such referendum petition, shall be filed with the secretary of the district requesting that an election upon the issuance of such contract indebtedness be held and conducted under the provisions of this section. The resolution, in addition to such declaration of public interest or necessity, shall recite the objects and purposes for which the indebtedness is proposed to be incurred, the estimated cost of the reconstruction, rehabilitation, replacement or improvement as the case may be, the amount of principal of the indebtedness to be incurred therefor, and the sources of the revenues and assessments pledged to the payment of the indebtedness. The election upon the assessments shall be held at the same time as and shall be combined with any such election required to be held upon the indebtedness question pursuant to a referendum petition.
Any such election required to be held hereunder shall be called by resolution, which resolution shall also fix the date upon which such election shall be held, subject to the provisions of section 34-106, Idaho Code, the manner of holding the same and the method of voting for or against the incurring of the indebtedness. Such resolution shall also fix the compensation to be paid the officers of the election and shall designate the precincts and polling places and shall appoint for each polling place, from each precinct from the electors thereof, the officers of such election, which officers shall consist of three (3) judges, one (1) of whom shall act as clerk, who shall constitute a board of election for each polling place. The description of precincts may be made by reference to any order or orders of the board of county commissioners of the county or counties in which the district or any part thereof is situated, or by reference to any previous order, or resolution of the board or by detailed description of such precincts. Precincts established by the boards of the various counties may be consolidated for elections held hereunder. The resolution calling the election shall prescribe an official notice of election in accordance with the provisions of section 34-1406, Idaho Code.
The respective election boards shall conduct the election in their respective precincts in the manner prescribed by law for the holding of district elections to the extent the same shall apply and shall make their returns to the secretary of the district. At any regular or special meeting of the board held within ten (10) days following the date of such election, the returns thereof shall be canvassed and the results thereof declared.
In the event that no referendum petition is filed, or if so filed, if it shall appear from said returns that a two-thirds (2/3) majority of the qualified electors of the district who shall have voted on any proposition submitted hereunder at such election voted in favor of such proposition, the district shall thereupon be authorized to incur such indebtedness or obligations, or enter into such contracts, all for the purpose or purposes and object or objects provided for in the proposition submitted hereunder or in the resolution therefor, and in the amount so provided. Submission of the proposition of incurring such obligation or other indebtedness at such an election shall not prevent or prohibit submission of the same or other propositions at subsequent election or elections called for such purpose.
[42-5115, added 1987, ch. 349, sec. 1, p. 771; am. 1995, ch. 118, sec. 87, p. 499.]
Prior to the incurring of indebtedness, the board shall file a petition in the district court of the county in which the office of the board is located, pursuant to the provisions of sections 43-406 to 43-408, inclusive, Idaho Code, as if the district were an irrigation district. Whenever any district which is required to file a petition hereunder has or proposes to enter into a contract or contracts with one or more districts pursuant to law, and such other district or districts is authorized or required to bring a confirmation proceeding or proceedings pursuant to the provisions of section 43-406 or of section 43-1808, Idaho Code, with respect to such contracts or the levy of assessments or the apportionment of costs, the boards of each of such other districts shall join in the filing of such petition, and the district court in which such petition is filed shall have jurisdiction to hear the petition and to grant the relief prayed for therein. Each such petition shall pray for a judicial examination and determination of any power conferred hereby or by any amendment hereto or of any assessment levied or of any apportionment of costs or of any act, proceeding or contract of the district or districts, whether or not said contracts shall have been executed, including proposed contracts for the reconstruction, rehabilitation, replacement and improvement of any such well and other related structures and works and appurtenances, falling water contracts, contracts with other districts and contracts with other public and private persons, firms, corporations and associations. Such petition shall set forth the facts whereon the validity of such powers, assessments, apportionments, acts, proceedings or contracts is founded. Notice of the filing of said petition shall be given by the clerk of the court by mailing, and by publication in at least one (1) newspaper published and of general circulation within the boundaries of each district joining in the petition, or if no newspaper is so published within any district, then in a newspaper published in the same county in which any part of such district is located which is of general circulation in such district, pursuant to and in accordance with the requirements of section 43-407, Idaho Code, as if the district were an irrigation district under the seal thereof, stating in brief outline the contents of the petition and showing where a full copy of any contract or contracts, therein mentioned, may be examined.
Any water user as defined in section 42-5102, Idaho Code, in any district joining in the petition or any other person interested in the contracts or proposed contracts may appear and answer said petition at any time prior to the date fixed for said hearing or within such further time as may be allowed by the court; and the petition shall be taken as confessed by all persons who fail so to appear. The said petition and notice shall be sufficient to give the court jurisdiction and, upon hearing, the court shall examine into and determine all matters and things affecting the question submitted, shall examine all of the proceedings of all of the districts as set forth in the petition, shall hear all objections either filed in said proceeding or brought up from the hearings before any of the boards, shall correct all errors in the assessments and apportionments of costs, shall ratify, approve and confirm all apportionments of costs and assessments levied, shall make such findings with reference thereto and render a judgment and decree thereon approving and confirming all of the powers, assessments, apportionments, acts, proceedings and contracts of each of the districts as set forth in the petition as the case warrants. Costs may be divided or apportioned among the contesting parties in the discretion of the trial court. Review of the judgment of the court may be had as in other similar cases, except that such review must be applied for within thirty (30) days after the time of the rendition of such judgment, or within such additional time as may be allowed by the court within thirty (30) days. The Idaho Rules of Civil Procedure shall govern in matters of pleading and practice where not otherwise specified herein. The court shall disregard any error, irregularity or omission which does not affect the substantial rights of the parties. Except as provided herein, the provisions of sections 43-406 through 43-408, Idaho Code, shall apply to the proceeding herein authorized as though the ground water management district were an irrigation district.
[42-5116, added 1987, ch. 349, sec. 1, p. 773.]
In the event that any official required to participate in any act leading to the calling or holding of the required election or the execution of any required contract shall refuse to perform such act alleging as his reason illegality of the proposed election or the proposed contract, the board may institute judicial proceedings to compel such steps to be taken and legality of the election or the contract to be determined. All cases in which there may arise a question of the validity of any proceeding under this act shall be advanced as a matter of immediate public interest and concern, and heard at the earliest practicable moment. The courts shall be open at all times for the purposes of this act.
[42-5117, added 1987, ch. 349, sec. 1, p. 774.]
Interim notes, and the interest thereon, issued pursuant to the authority contained in this chapter shall be exempt from taxation under the Idaho income tax law.
[42-5118, added 1987, ch. 349, sec. 1, p. 774.]
Any restrictions, limitations or regulations relative to the execution of such contracts pursuant to the authority herein contained in any other act shall not apply to the execution of such contracts pursuant to the authority herein contained. Any act inconsistent herewith shall be deemed modified to conform with the provisions of this chapter for the purpose of this chapter only. This chapter being necessary to secure and preserve the public health, safety, convenience and welfare, and for the security of public and private property, it shall be liberally construed to effect the purposes of this chapter.
[42-5119, added 1987, ch. 349, sec. 1, p. 774.]
If in any year the board of directors fails to levy assessments for the repayment of indebtedness in amounts sufficient to meet a payment or payments falling due, the lender may bring an action in the district court of any county in which the district is situated to compel the board to levy assessments in amounts sufficient to insure the payment thereof; provided, however, that the board may not be compelled to increase assessments for the repayment of indebtedness if the maximum annual assessment limitation specified in section 42-5113, Idaho Code, will be exceeded thereby. In the event that the maximum annual assessment limitation has been reached and the assessments for repayment of indebtedness nevertheless will be insufficient to meet a payment or payments falling due, the lender may, in the alternative, seek an order requiring that moneys received by the district in payment of assessments for all purposes be first expended for the repayment of that portion of the indebtedness falling due.
[42-5120, added 1987, ch. 349, sec. 1, p. 775.]
From and after January 1 of any year, all assessments, other than those levied against municipalities, shall be liens against the property of water users to which the water rights used to determine assessments are appurtenant. Such liens shall not be removed until the assessments are paid or the property is sold for the payment thereof.
[42-5121, added 1987, ch. 349, sec. 1, p. 775.]
Assessments shall be due and payable on or before December 31 of each year. On or before the first day of December, the treasurer of the district shall publish a notice for a period of not less than two (2) weeks in a newspaper published or having general circulation in each of the counties in which any part of the district is situated setting forth the date by which assessments must be paid and the times and places at which payment may be made. The treasurer of the district shall mail by regular mail a billing to each water user. The billing shall be mailed on or before the first day of December.
Assessments unpaid on December 31 shall be delinquent and shall bear interest at the rate of fifteen percent (15%) per annum until paid. Delinquent assessments, in addition, shall be subject to a penalty in the amount of fifteen dollars ($15.00) per delinquent assessment.
The maximum annual assessment limitation specified in section 42-5113, Idaho Code, shall apply only to the amount of the assessment itself, and the interest and penalty herein prescribed shall be collectible along with the amount of the delinquent assessment, notwithstanding that the assessment itself is at the maximum specified in that section.
[42-5122, added 1987, ch. 349, sec. 1, p. 775.]
On or before the 15th day of January of each year the treasurer shall enter the amount of all delinquent assessments upon the assessment book, which entry shall be considered to be dated as of the first day of January. Such entry shall have the force and effect of a sale to the treasurer of the district as grantee in trust for the district of all property to which a lien has attached as a result of such unpaid assessments.
The treasurer shall compile a list of such delinquency entries which shall contain the names of the persons or entities to whom the assessments were directed and the amount of such delinquent assessments together with the amount of the penalties to be added thereto. A certified copy of the delinquency list shall be filed with the county recorder of each county in which the properties affected by such delinquent assessments are located, and the treasurer shall then provide by certified mail a notice of delinquency to each water user having a delinquent assessment.
[42-5123, added 1987, ch. 349, sec. 1, p. 775.]
The manner in which property subject to a lien for nonpayment of assessments may be redeemed, and if not redeemed, shall be sold as provided in sections 43-712, 43-715 through 43-721, 43-724 and 43-726, Idaho Code, to the extent that the provisions thereof are in keeping with the provisions of this chapter.
[42-5124, added 1987, ch. 349, sec. 1, p. 776.]
(1) All water users, as defined in subsection (1) of section 42-5102, Idaho Code, included within the district and who have not obtained exclusion as hereinafter provided, shall remain within and be subject to assessment by the district, notwithstanding the absence of their signatures on the petition for formation of the district, and notwithstanding any change in the ownership or control of the property of the water user, whether by way of transfer, exchange, conveyance, assignment, lease, or otherwise, to which the water right or rights used to determine assessments are appurtenant. Municipal water users, as defined in subsection (2) of section 42-5102, Idaho Code, included within the district shall remain upon their election, within and be subject to assessment by the district unless excluded in the manner hereinafter provided.
(2) Any water user, as defined in subsection (1) of section 42-5102, Idaho Code, who has obtained exclusion from the district, but who nevertheless is benefited by the district, shall remain excluded; provided, however, that any person or entity succeeding the water user in the ownership or control of property, whether by way of transfer, exchange, conveyance, assignment, lease, or otherwise, to which is appurtenant a water right that, barring the exclusion, would have been used to determine assessments, shall be deemed included within and subject to assessment by the district.
(3) Any individual or entity whose permit to appropriate water was acquired after the formation of the district but who qualifies as a water user under subsection (1) of section 42-5102, Idaho Code, in all other respects, shall be deemed included within and subject to assessment by the district if benefited either directly or indirectly by the district.
[42-5125, added 1987, ch. 349, sec. 1, p. 776.]
(1) After the formation of the district, any water user included within the district may file with the board of directors a petition in writing, praying for exclusion from the district. All water users seeking exclusion as are united in interest or to which the same state of facts apply may unite in the same petition. The grounds for exclusion and the time limitations for filing any petition hereunder shall be as follows:
(a) The water user will not be benefited by the functioning of the district. A petition alleging this ground for exclusion must be filed within ninety (90) days after the adoption of a resolution to incur indebtedness as authorized in section 42-5114, Idaho Code. Any such petition filed after the ninety (90) day period has elapsed shall not be accepted or considered, except upon a showing of good cause for the delay.
(b) The water user has not benefited by the functioning of the district. A petition alleging this ground for exclusion shall be filed no earlier than five (5) years after the adoption of a resolution to incur indebtedness as authorized in section 42-5114, Idaho Code.
(c) A petition alleging either of the foregoing grounds for exclusion shall be acknowledged by all the petitioners and shall state in detail the reasons why it is claimed that the petitioners should be excluded from the district.
(2) Immediately after the formal appointment, the board of directors shall cause notice of the deadline for filing petitions under the provisions of subsection (1) of this section and a copy of the order of formation of the district and a map indicating the boundaries of the district to be posted in three (3) public places in each county in which a part of the district is situated. In addition, the board shall publish notice of the deadline and the location at which the order of formation and map of the district may be inspected for at least four (4) successive weeks in a newspaper published or having general circulation in each of the counties in which any part of the district is situated.
[42-5126, added 1987, ch. 349, sec. 1, p. 777.]
(1) The petition shall be heard by the board of directors within sixty (60) days of filing of the petition and if no hearing is held within that time the petitioner or petitioners shall be deemed excluded from the district. If, prior to the date set for the hearing, the board issues an order excluding the petitioner or petitioners, no hearing need be held. The board shall give each petitioner notice of the time and place of the hearing in writing not less than fifteen (15) days prior to the hearing. It shall be sufficient to mail such notice by certified or registered mail to each petitioner’s mailing address as indicated on the petition.
(2) At the hearing, if any, the petitioner or petitioners must establish by competent evidence the allegations of the petition. The chairman of the board is hereby empowered to administer oaths for the purpose of the hearing. If the allegations of the petition are established the board shall enter an order excluding the petitioner or petitioners, or any of them, from the district, which order shall reflect the nature of any outstanding and/or continuing liabilities to which the petitioner so excluded shall remain subject under the provisions of section 42-5129, Idaho Code.
[42-5127, added 1987, ch. 349, sec. 1, p. 777.]
An appeal shall lie from a decision of the board of directors denying the petition or any part thereof to the district court of the county where the water user or water users are located. The appeal shall be taken in the same manner as appeals are taken from the board of county commissioners. If the district court excludes the water user or water users, or any of them, the time of exclusion shall date from the time of the hearing before the board of directors. The order of the district court excluding a water user or water users shall reflect the nature of any outstanding and/or continuing liabilities to which each water user so excluded shall remain subject under the provisions of section 42-5129, Idaho Code.
[42-5128, added 1987, ch. 349, sec. 1, p. 778.]
Any water user excluded from the district on the grounds specified in subsection (1) of section 42-5126, Idaho Code, shall not be subject to assessment by the district for any purpose. Any water user excluded from the district on the grounds specified in subsection (2) of section 42-5126, Idaho Code, shall not be subject to assessment for operation of the district or for assessment expenses after the entry of the order of exclusion, or in case of appeal, the effective date of exclusion, but shall remain subject to the following liabilities until discharged:
(1) Such excluded water user shall remain liable for payment of assessments previously levied and unpaid at the time of the entry of the order of exclusion, or in case of appeal, the effective date of exclusion.
(2) Such excluded water user, notwithstanding his exclusion, shall remain liable to pay his proportionate share, such share to be computed as specified in section 42-5113, Idaho Code, of any indebtedness of the district already incurred and outstanding at the time of the entry of the order of exclusion, or in case of appeal, the effective date of exclusion, but such water user shall not be liable upon any indebtedness incurred thereafter.
Any water user, as defined in section 42-5102, Idaho Code, who, after exclusion, remains subject to either or both of the liabilities specified herein shall, in addition, remain subject to the provisions of sections 42-5121, 42-5122, 42-5123 and 42-5124, Idaho Code, until such liabilities have been discharged.
Upon the discharge of any liability, the district shall issue to the water user its certificate of full payment executed by the chairman of the board and the secretary of the district, and acknowledged so that the certificate may be recorded in the records of the county wherein the property of the water user affected by such liability and the discharge thereof is situated.
[42-5129, added 1987, ch. 349, sec. 1, p. 778.]
On appeal, costs shall be taxed as in other civil cases. Costs of recording the order of exclusion shall be borne by petitioners when the order is entered by the board of directors and by the ground water management district when entered by the district court.
[42-5130, added 1987, ch. 349, sec. 1, p. 778.]
The decision and order of the board of directors, or of the district court in case of appeal, excluding the petitioner or petitioners from the district shall be filed for record in the recorder’s office of the counties within which the district is situated.
[42-5131, added 1987, ch. 349, sec. 1, p. 779.]
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.
[42-5132, added 1987, ch. 349, sec. 1, p. 779.]
This chapter is known as the "Ground Water District Act"; the districts created hereunder may be termed "ground water districts." When used in this chapter, and unless otherwise specified, the following terms shall be defined as follows:
(1) "Board" means the board of directors of a ground water district organized pursuant to this chapter.
(2) "Corporation" means a corporation or limited liability company.
(3) "County commission" means the board of county commissioners or any other governing board or authority for a county, as provided by law.
(4) "Department" means the Idaho department of water resources.
(5) "Director" means the director of the department of water resources.
(6) "District" means a ground water district established, or to be established, pursuant to this chapter.
(7) "Ground water" when used in this chapter means water under the surface of the ground whatever may be the geologic structure in which it is standing or moving, as provided in section 42-230(a), Idaho Code.
(8) "Ground water user" means the legal or beneficial owner of a ground water right, or the user of a ground water right pursuant to lease or contract of a ground water right to divert ground water of the state for a beneficial use or purpose, except for those diverting under rights used solely for domestic or stock use as defined by sections 42-111 and 42-1401A, Idaho Code, and provided, that for purposes of this chapter, the term ground water user shall not include any ground water right held by or on behalf of an Indian tribe or by tribal members for diversion and use within an Indian reservation, ground water rights held by the United States or ground water rights held by the state of Idaho. A ground water user is within the boundary of a ground water district if the well or other point of diversion used by that ground water user is within the boundary. A husband and wife together diverting ground water pursuant to right shall constitute one (1) ground water user. Ground water user includes both a ground water irrigator and a nonirrigator as defined in this chapter.
(9) "Ground water irrigator" means a ground water user holding a ground water right for irrigation purposes within a ground water district.
(10) "Land" or "lands," when used in the context of the property of a ground water user subject to district assessment under this chapter, means the real property where ground water is diverted or placed to beneficial use, including the facilities in or through which a ground water user makes beneficial use of ground waters.
(11) "Nonirrigator" means a ground water user holding a ground water right for commercial, municipal, or industrial purposes within a ground water district. A ground water user will be deemed a nonirrigator for purposes of this chapter even though: (a) some component of the user’s ground water use is for irrigation; or (b) the user holds a ground water right for irrigation that is incidental to, or normally associated with, the user’s commercial, municipal or industrial purpose.
(12) "Member" means a ground water user whose lands, facilities and/or water rights are included in and subject to a ground water district and its policies.
(13) "Mitigation plan" means a plan to prevent or compensate for material injury to holders of senior water rights caused by the diversion and use of water by the holders of junior priority ground water rights who are participants in the mitigation plan.
(14) "Person" means an individual, partnership, trust, estate, association, corporation, municipal corporation, the state of Idaho and any of its agencies, the United States, an Indian tribe, a public corporation, or any other public or private entity.
(15) "Public corporation" means counties, city and counties, cities, school districts, municipal water districts, irrigation districts, recharge districts, water districts, park districts, subdistricts, and all other governmental agencies of this state, having the power of levying or providing for the levy of general or special taxes or special assessments, and any political subdivision of another state of the United States.
(16) "Water right" means the legal right to divert and beneficially use the public waters of the state of Idaho where such right is evidenced by a decree, a permit or a license issued by the department, a beneficial or constitutional use right evidenced by an adjudication claim or claim based on section 42-243, Idaho Code, or a right based on federal law.
[42-5201, added 1995, ch. 290, sec. 1, p. 983; am. 1997, ch. 374, sec. 7, p. 1203; am. 2005, ch. 367, sec. 1, p. 1155.]
Whenever fifty (50) or a majority, whichever is less, of the ground water users in a particular geographic area desire to organize a ground water district, they may propose the organization of a district and the election of its initial board of directors under this chapter.
[42-5202, added 1995, ch. 290, sec. 1, p. 985.]
(1) A petition shall be first presented to the county commission of the county in which the greatest proportion of cubic feet per second of ground water rights of the proposed district is situated, which petition shall:
(a) Be signed by the required number of ground water users in such proposed district;
(b) State that the petitioners desire to have their lands included within and subject to the assessments of the district for purposes consistent with this chapter;
(c) Set forth and describe by township, range and section, with the degree of certainty required by law in a tax roll, the boundary of the area where, if a ground water user is located within that boundary, that ground water user would be included in a ground water district, and shall request that the area described be organized into a ground water district;
(d) Propose a name for the district;
(e) Be accompanied by a list, identifying the ground water users within such proposed district by name, address, ground water right number, point of diversion, and cubic feet per second per ground water right, certified by the director of the department of water resources as accurately reflecting the records of the department;
(f) Be accompanied by a map which shall indicate the proposed boundaries of the district, and which may propose division boundaries as specified in section 42-5208, Idaho Code;
(g) Propose between three (3) and seven (7) divisions and division boundaries;
(h) Include nominations for a director for each division, each of which shall be signed by not less than six (6) ground water users in the proposed district;
(i) Be accompanied by bond, to be approved by the county commission, in double the amount of the probable cost to the county and the department of organizing such district, conditioned that the bondsmen will pay all said costs, in case organization of the district is unsuccessful.
(2) The petition, together with all maps and papers filed therewith, shall, during the county’s office hours, be open to public inspection at the office of the county clerk between the date of filing and the date of the final hearing thereon. The boundaries specified in the petition shall be proposed in such manner that the greatest distance between two (2) wells in the district shall be no more than thirty (30) miles unless good cause is shown to the county commission for including a larger area.
(3) Lands of ground water users do not have to be contiguous within a ground water district, and such district may be organized even though its boundaries may overlap with other districts formed pursuant to title 43, Idaho Code, or other titles of the Idaho Code.
(4) If the district is organized, the costs of organization shall be assessed against the members of the district.
[42-5203, added 1995, ch. 290, sec. 1, p. 985.]
The petition may be filed with the county clerk, upon verifying with the county assessment roll or other evidence of entitlement whether the petition is valid, at any time, and upon such filing the clerk forthwith shall cause a notice to be published in a newspaper printed within the county (counties) within the boundaries specified in the petition, or if no newspaper is printed in any of the affected counties, then in newspapers of general circulation in the affected county (counties). The notice shall state that (giving the first name on the petition) and others have filed a petition for the organization of a ground water district. The notice shall state the numbers of the townships, ranges, and sections where, if a ground water user is within those townships, ranges, and sections, that ground water user would be within the proposed district. The notice shall further state the time at which such petition will be presented to the county commission, which time shall be during a regular meeting of the commission or a special meeting called for that purpose, and the notice shall be published at least once a week for two (2) consecutive weeks before the day on which the petition is to be presented.
[42-5204, added 1995, ch. 290, sec. 1, p. 986.]
When the petition is presented, the county commission shall set a time for a hearing on the petition, which shall not be less than four (4) nor more than eight (8) weeks from the date of presentation, unless extended by the county commission for good cause. A notice of the time of such hearing shall be published by the county clerk, at the direction of the commission, at least three (3) weeks before the time of such hearing, in a newspaper or newspapers as required in section 42-5204, Idaho Code.
[42-5205, added 1995, ch. 290, sec. 1, p. 986.]
(1) A copy of the petition and all maps and other papers filed with the county commission shall be filed with the department on the same day the petition is filed with the county commission.
(2) The department shall examine the petition, maps and other papers submitted in support of it, and, taking into account hydrological factors, patterns of ground water use, or other attributes of the area that may aid the county commission, prepare a report upon the boundaries proposed for the district and submit the report to the county commission at least two (2) weeks before the meeting set for the commission to hear the petition.
[42-5206, added 1995, ch. 290, sec. 1, p. 986.]
(1) After receiving the report of the department of water resources, the county commission shall conduct a hearing on the petition. If the county commission determines that the requisite number of signatures were not gathered on the petition, the board shall adjourn the hearings for two (2) weeks for the purpose of enabling the petitioners to gather additional signatures. The petitioners may amend the boundaries of the proposed district at the hearing to include or exclude lands of those ground water irrigators who provide written notice or who appear at the hearing requesting that their lands be either included or excluded, to meet the recommendations of the department, or as they may find advisable to achieve suitable district boundaries. The county commission shall accept any additional nominations of persons to be directors at the hearing or the nominations may be filed with the county clerk. The nominations must be signed by at least six (6) ground water users from the proposed district.
(2) When the county commission has determined to proceed with the petition, it may adjourn the hearing from time to time, not exceeding four (4) weeks in all, and on final hearing, the county commission:
(a) May make such other changes in the proposed boundaries of the district and divisions within the district as it may find proper; and
(b) Shall make an order on its records describing the area which it shall have determined to include in the district, and stating that lands of ground water users within such area will be organized into a ground water district if the vote of the electors accepts organization of the district.
(3) The county commission shall notify the department of the final action by mailing or faxing a copy of the order to the department within seven (7) days of the board’s decision. If the boundaries of the proposed ground water district differ from the boundaries contained in the department’s original report, the department shall prepare a revised list of the ground water users within such proposed district by name, address, ground water right number, point of diversion, and cubic feet per second per ground water right and return it to the county commission.
[42-5207, added 1995, ch. 290, sec. 1, p. 987.]
The county commission shall also make an order dividing the district into not less than three (3) nor more than seven (7) divisions, each division to contain approximately the same amount, measured in cubic feet per second, of ground water rights as each other division. The divisions shall be numbered first, second, third, etc., and one (1) director, who shall be a ground water user in the division, shall be elected from each division of the district at large. The number of divisions into which the district shall be divided shall be specified in the petition for the organization of the district, and if not otherwise specified shall be three (3).
[42-5208, added 1995, ch. 290, sec. 1, p. 987.]
The county commission shall give notice of an election to be held in accordance with section 34-106, Idaho Code, in the proposed district for the purpose of determining whether the district shall be organized under this chapter, and, if so, who shall be its initial directors. The notice shall describe the area, with the certainty required in an ordinary deed, where, if a ground water user is located within that area, that ground water user would be included in the district and shall state the name of the proposed district as designated by the commission, and shall state that a map showing the area of the district is on file in the office of the county clerk, which map, if not previously made, shall be made by the petitioners after the determination of the commissioners of the boundary of the proposed district, and shall state the names of those individuals who have been nominated for director’s positions. The notice shall be published for four (4) weeks prior to such election, in a newspaper or newspapers as required in section 42-5204, Idaho Code. The notice shall require the electors to cast ballots which shall contain the words "ground water district–yes," or "ground water district–no," and also to cast ballots for at least one (1) person from each division for director of the district.
[42-5209, added 1995, ch. 290, sec. 1, p. 988.]
(1) Any ground water irrigator, and any nonirrigator who is a member for all purposes, within the proposed district shall be entitled to vote at any election held under the provisions of this chapter. The production of documentation of a water right as described in section 42-5201(16), Idaho Code, shall be sufficient evidence of ground water use for purposes of acting as an elector under this chapter. A representative of a ground water user shall be so designated by written proxy signed by the ground water user except that the vote of a state, city or county government may be cast by an elected or appointed official of the agency, or his designee. A corporation or partnership shall vote or otherwise act by a single individual who is authorized by the corporation or partnership to act on its behalf. A corporation or partnership must furnish the election officials a written designation stating the name of the individual who is authorized to vote and otherwise act for the corporation or partnership.
(2) Any ground water user who becomes a member of a district solely for mitigation purposes:
(a) Shall be entitled to vote only in those district elections concerning whether to incur indebtedness as specified in section 42-5234, Idaho Code; and
(b) Shall be ineligible to nominate directors or officers of the district, to serve in such capacities, or otherwise to participate in the governance of the district.
(3) A nonirrigator may participate in the election to determine whether a district will be formed only according to the following provisions:
(a) The nonirrigator shall notify the judges of election in writing at least ten (10) working days prior to the date of the election that such person supports the formation of the district, elects to become either a member for all purposes, or a member only for mitigation purposes as described in section 42-5214, Idaho Code, should it be formed, and, by such notice, casts its vote(s) in favor of formation.
(b) The notification shall contain a legal description of the land through which the nonirrigator places ground waters to beneficial use, a statement of the amount of such person’s ground water right in cubic feet per second of diversions, and a copy of the ground water right documentation described in section 42-5201(16), Idaho Code.
(c) Once the judges of election have accepted the notification described in subsection (3)(b) of this section, they shall duly record the nonirrigator’s vote(s) in favor of district formation in the canvassing of votes carried out pursuant to section 42-5213, Idaho Code.
(d) If the voting results in the formation of the district, the nonirrigator who provided such notification thereafter shall be a full member or member for mitigation purposes of such district, whichever the case may be, and shall have all obligations, rights, and limitations attaching thereto.
(4) Each ground water user shall have one (1) vote for each cubic foot per second, or proportion thereof (rounded to the nearest tenth of a cubic foot per second), for which such ground water user holds a ground water right whose point of diversion is within the proposed district boundaries.
[42-5210, added 1995, ch. 290, sec. 1, p. 988; am. 1996, ch. 298, sec. 4, p. 981; am. 2005, ch. 367, sec. 2, p. 1157.]
(1) Elections shall be conducted as nearly as practicable in accordance with the general laws of the state; provided, no particular form of ballot shall be required, and that the provisions of the election laws as to the form and distribution of ballots shall not apply.
(2) The county commission shall establish one (1) or more election precincts, not exceeding seven (7), as may be necessary, and define the boundaries thereof, which boundaries, when the district is divided into precincts, shall be the same as the division boundaries above-provided for and which said precincts may thereafter be changed by the board of directors of such district as may be necessary; provided, that districts shall have not less than three (3), nor more than seven (7) voting precincts.
(3) The county commission shall also appoint three (3) judges of election for each such election precinct, who shall perform the same duties as near as may be as judges of election, under the general laws of the state.
[42-5211, added 1995, ch. 290, sec. 1, p. 989.]
No registration shall be required in any ground water district election, but in lieu thereof the judges of election shall require every elector to subscribe to an elector’s oath as prerequisite to casting his vote, and such oath shall be the usual elector’s oath with the following words added thereto, "I am a resident of ………. county, and I am a ground water user within the ……. (proposed) ground water district, or I am a representative of a ground water user within the ……. (proposed) ground water district" and present evidence of such ground water use pursuant to section 42-5201(16), Idaho Code, if they do not appear on the department’s list as provided in section 42-5206, Idaho Code.
[42-5212, added 1995, ch. 290, sec. 1, p. 989; am. 2005, ch. 367, sec. 3, p. 1158.]
(1) Immediately after any election for voting upon the organization of a ground water district, the judges of the election shall forward the official results of said election to the county clerk. The county commission shall meet within ten (10) days after the election returns are received, and canvass the votes cast. If it appears that two-thirds (2/3) of the votes cast are "ground water district–yes," the commission shall, by order entered on its minutes, declare such territory duly organized as a ground water district, under the name designated, shall declare that a map showing the area of the district is on file in the office of the county clerk and shall declare the persons receiving respectively the highest number of votes for director from each division to be duly elected as directors. The county commission shall cause a copy of such order, duly certified, to be immediately filed for record in the office of the county recorder of each county in which any portion of such district is situated, and shall mail a certified copy of the order to the director.
(2) If it shall appear, however, that more than one-third (1/3) of the votes cast are "ground water district–no," then a record of that fact shall be duly entered upon the minutes of the board, and all proceedings in regard to the organization of the district shall be void, and the expenses properly incurred thereunder may be collected on the bond provided for in section 42-5203, Idaho Code.
[42-5213, added 1995, ch. 290, sec. 1, p. 990.]
(1) All ground water irrigators within the boundaries of the district shall be members of the district and subject to assessments, rights and responsibilities established by the district as set forth in this chapter, notwithstanding any change in the ownership or control of the property of the water user, whether by way of transfer, exchange, conveyance, assignment, lease, or otherwise, to which the water right or rights used to determine assessments are appurtenant, unless excluded from the district pursuant to sections 42-5251 through 42-5257, Idaho Code. Except as provided in section 42-5276, Idaho Code, any ground water irrigator who previously was not a member as of March 31, 2005, shall be included as a member effective upon order of the board finding and confirming that inclusion of such ground water irrigator is in the best interests of the district and that such ground water irrigator shall receive benefits from such inclusion as a member. Such order may be made only after the board shall have caused a notice of such hearing to be published in the manner of notices of elections, which notice shall state that all persons interested in or that may be affected by such inclusion as a member shall appear at the time and place named in the notice and show cause in writing why they should not be included as a member. The board, at the time mentioned in said notice shall hear any objections to inclusion. The failure of any person to file with the district office an objection to inclusion as a member prior to the noticed hearing shall be taken as an assent on his part to such inclusion as a member of the district. Any order confirming the inclusion of ground water irrigators as members of the district shall be certified by the board president and secretary and filed for record in the recorder’s office of each county within which are situated any lands of the district and notice of the order shall be published in the manner of notices of elections. Any person who properly has filed an objection to inclusion as a member shall have the right to appeal to the district court of the county in which such person’s ground water right is situated, provided such appeal shall be made within thirty (30) days from the date of publication of the order confirming such inclusion. After said thirty (30) day appeal period, no one shall have any cause or right of action to contest the legality, formality or regularity of said order of inclusion for any reason whatsoever, and thereafter, said inclusion and the constitution and validity of the district shall be considered valid and incontestable without limitation. Any ground water irrigator who previously was not a member of the district as of March 31, 2005, that is included as a member upon order of the board shall be liable for his proportionate share of all costs of the district incurred after such date, including his proportionate share of all bonded, warrant or other indebtedness incurred prior to March 31, 2005, but only the proportionate share of such prior indebtedness applicable to the period after March 31, 2005.
(2) All nonirrigators within the boundaries of the district who voted according to notice as provided in section 42-5210(3), Idaho Code, are members of the district as specified in such notice.
(3) A nonirrigator also may become a member of a district by providing, within sixty (60) days after the date on which the district is formed, written notice to the district board that the nonirrigator wishes to join the district either as a member for all purposes or as a member for mitigation purposes only. Upon providing such notice, the nonirrigator shall be either a member for all purposes or a member for mitigation purposes only, as specified in the notice, and shall be subject to assessment accordingly as provided in this chapter. After such sixty (60) day period, a nonirrigator may become a member of a district only through the annexation procedure described in sections 42-5245 through 42-5249, Idaho Code.
(4) Except as provided for nonirrigators as defined in subsection (11) of section 42-5201, Idaho Code, any person whose permit, license, or other entitlement to appropriate ground water was acquired after the formation of the district, or who appropriates ground water for uses not requiring a permit after the formation of the district, but qualifies as a ground water user under subsection (8) of section 42-5201, Idaho Code, within the area of the district in all other respects, shall be deemed included within and subject to assessment by the district, if benefitted either directly or indirectly by the district as of the date the permit, license, or entitlement is acquired.
[42-5214, added 1995, ch. 290, sec. 1, p. 990; am. 1996, ch. 298, sec. 5, p. 982; am. 2005, ch. 367, sec. 4, p. 1158; am. 2006, ch. 355, sec. 1, p. 1085.]
No action shall be commenced or maintained, or defense made affecting the validity or organization of the district, more than two (2) years from and after the county commission enters on its minutes the order directing the formation of the district.
[42-5215, added 1995, ch. 290, sec. 1, p. 991.]
From and after the date the county commission files its order declaring the district to be formed by election, the organization of the district shall be complete and those ground water users specified in section 42-5214, Idaho Code, shall be included within the district. The officers and directors of the district shall be entitled to enter immediately upon the duties of their respective offices, upon qualifying according to law, and shall hold such offices respectively, until their successors are elected and qualified. The board of directors so elected shall meet within thirty (30) days after their election and elect a chairman, and appoint a secretary and treasurer, who shall perform the duties imposed upon such officers under this chapter.
[42-5216, added 1995, ch. 290, sec. 1, p. 991; am. 1996, ch. 298, sec. 6, p. 983.]
The treasurer shall on his appointment execute and file with the secretary an official bond in such amount as may be fixed by the district board of directors, which shall not be less than five thousand dollars ($5,000); and shall thereafter from time to time execute and file such further bonds as may be required by the board in amounts fixed by it, which amounts shall be of at least fifty percent (50%) of the maximum probable amount of money in the treasurer’s hands at any one (1) time. All such official bonds shall be executed by a lawfully qualified surety company.
[42-5217, added 1995, ch. 290, sec. 1, p. 991.]
(1) One (1) year following the organization of the district, an election shall be held in accordance with section 34-106(1), Idaho Code, at which shall be elected one (1) director for each division of the district by the electors of the district at large. Following the election, the term of office of the directors shall be selected by lot so that as nearly as may be, one-third (1/3) of the number shall hold office for the term of one (1) year, one-third (1/3) for the term of two (2) years, and the balance for the term of three (3) years. An election shall be held in the district in accordance with section 34-106(1), Idaho Code, for each year thereafter, at which directors shall be elected to succeed those whose terms expire, to hold office for a term of three (3) years, or until their successors are elected and qualified. Every director must be a ground water user and a member of the district in the division of the director whom he is to succeed in office. Written nominations for the office of director must be signed by at least six (6) members in districts having less than one hundred (100) members and by at least twelve (12) members in districts having more than one hundred (100) members, and filed with the secretary of the district not less than twenty-eight (28) days nor more than forty-two (42) days before the date of election; and the names of the persons so nominated shall be placed upon official ballot to be furnished by the district.
(2) The board of directors may provide that any elections conducted under this chapter may be conducted by mail as long as the ballots are mailed not later than fourteen (14) days prior to the election and received by the secretary of the district by 8:00 p.m. on the date of the election.
[42-5218, added 1995, ch. 290, sec. 1, p. 991; am. 1996, ch. 298, sec. 7, p. 983.]
In any election for directors if, after the expiration of the date for filing written nominations for the office of director, it appears that only one (1) qualified candidate has been nominated thereby for each position to be filled, it shall not be necessary to hold an election, and the board of directors shall, within five (5) days after expiration of the date for filing written nominations, declare such candidate elected as director. The procedure set forth in this section shall not apply to any other district election.
[(42-5218A) 42-5219, added 1995, ch. 290, sec. 1, p. 992; am. and redesig. 2005, ch. 367, sec. 5, p. 1159.]
The secretary of the district shall give notice of all elections in the district by posting the same in five (5) public places in each county in which a part of the district is situated and in the office of the board of directors at least four (4) weeks before the day of such election, or by publication of the notice once a week for four (4) successive weeks in a newspaper or newspapers published in each of said counties or in a newspaper of general circulation therein. Notices shall state the time of the election and the location of polling places within the district and the directors to be elected or other question to be voted upon, as the case may be.
[(42-5218B) 42-5220, added 1995, ch. 290, sec. 1, p. 992; am. and redesig. 2005, ch. 367, sec. 6, p. 1160.]
The election shall be conducted as nearly as practicable in accordance with the general laws of the state; provided that no particular form of ballot shall be required and the provisions of the election laws as to the form and distribution of ballots shall not apply and each ballot must indicate the number of cubic feet per second associated with the ballot cast. The board of directors shall designate polling places in such number as it may deem necessary. At least ten (10) days before the holding of any election, the board shall appoint three (3) electors to serve as judges of election at each polling place. The judges shall perform the same duties as near as may be, as judges of election under the general laws of the state. Immediately after the election, the judges of election shall forward the official results to the secretary of the district.
[(42-5218C) 42-5221, added 1995, ch. 290, sec. 1, p. 992; am. and redesig. 2005, ch. 367, sec. 7, p. 1160.]
On the first Monday after each election, or at a time designated by the board of directors, the board shall meet at its usual place of meeting and proceed to canvass the returns. By order entered on its minutes, the board shall declare elected the person or persons having the highest number of votes for each office.
[(42-5218D) 42-5222, added 1995, ch. 290, sec. 1, p. 992; am. and redesig. 2005, ch. 367, sec. 8, p. 1160.]
In the event a district is divided into six (6) or fewer divisions, the district is authorized to elect one (1) to two (2) directors at large. Directors at large shall be elected at the annual meeting of the district by a two-thirds (2/3) majority of the members present at the meeting. Every director at large elected pursuant to the provisions of this section shall be a ground water user in the district. Directors at large shall hold office for a term of two (2) years, or until their successors are elected and qualified. Provided however, that in no event shall a district have more than a total of seven (7) directors serving at any time whether elected pursuant to the provisions of section 42-5218, Idaho Code, or pursuant to this section.
[42-5219, added 2005, ch. 367, sec. 9, p. 1160.]
(1) The board of directors annually shall elect a chairman from their number and shall appoint a secretary and a treasurer to hold office at the pleasure of the board. Upon appointment the treasurer shall execute and file with the secretary an official bond in such amount as may be fixed by the board of directors, and shall thereafter from time to time execute and file such further bonds as may be required by the board in amounts fixed by it, which amounts shall be at least fifty percent (50%) of the maximum probable amount of money in the treasurer’s hands at any one (1) time. All such official bonds shall be executed by a lawfully qualified surety company.
(2) The board of directors shall designate an office of the district.
(3) The board of directors shall hold a regular monthly meeting in the district’s office on the first Tuesday in every month or such date each month as it shall fix by resolution, and such special meetings as may be required for the proper transaction of business. Special meetings may be held on seventy-two (72) hours’ notice of the chairman or a majority of the members. A majority shall constitute a quorum for the transaction of business and the concurrence of a majority of the members shall be necessary to constitute the action of the board. All meetings of the board shall be public and all records of the board shall be open to the inspection of any member water user, or representative thereof during business hours.
(4) The members of the board of directors shall fix the compensation board members shall receive for each day spent attending the meetings, or while engaged in official business under the order of the board, together with actual and necessary expenses. The term "actual and necessary expenses" shall include all traveling and lodging expenses necessarily incurred by any director when absent from his residence in the performance of the duties of his office. The board shall fix the compensation to be paid to the other officers of the district.
(5) In case of a vacancy in the office of director occurring otherwise than by the expiration of a term, the remaining members of the board of directors shall fill such vacancy by appointing a ground water user who is a member of the district or a representative thereof, possessing full voting qualifications under this chapter and the qualifications of the director whose office has become vacant to serve the remainder of the term.
[42-5223, added 1995, ch. 290, sec. 1, p. 992.]
The board shall, in addition to any other powers and duties provided in this chapter, and provided that nothing in this chapter shall abrogate or impair the right of any person to take any action necessary to acquire, protect, challenge or defend any water right, have the following powers and duties:
(1) To acquire, and/or construct, operate, control or use by appropriation, grant, purchase, bequest, devise, contract or lease works or facilities, water rights, water permits or licenses, well-drilling permits, wells, pipelines, ditches and any other real and personal property (including easements and rights-of-way) or contract entitlement within or without the district necessary or convenient to fully exercise its powers;
(2) To sell, lease, encumber, alienate, or otherwise dispose of works or facilities, water, water rights, wells, pipelines, ditches, reservoirs, recharge facilities, and any other real and personal property owned by the district within or without its boundaries, and to incur indebtedness on behalf of the district as specified in this chapter;
(3) To enter into contracts and agreements, cooperative and otherwise, including contracts with the United States of America and any of its agencies or instrumentalities, and tribes, and contracts with corporations, public or private, municipalities, or governmental subdivisions necessary or convenient to fully exercise its powers;
(4) To hire and retain agents, employees, engineers, hydrologists, geologists, and attorneys as shall be necessary and convenient to transact the district’s business and to represent the district’s interests;
(5) To levy assessments for the operation of the district and its programs;
(6) To represent district members, with respect to their individual water rights, in general water rights adjudications and other legal and administrative proceedings or before political bodies, provided that the board may levy assessments for these matters against only those members who have given written consent for the representation;
(7) To represent district members in proceedings or meetings of a water district established by the director of the department notwithstanding any provision to the contrary in chapter 6, title 42, Idaho Code. Provided however, that the board shall not be authorized to cast a vote in any proceeding or meeting of a water district established pursuant to chapter 6, title 42, Idaho Code, on behalf of any district member who has, prior to such proceeding or meeting, given written notice to the board and to the water district that such district member intends to vote on his own behalf, or on behalf of any district member who attends such meeting or proceeding and intends to vote on his own behalf. The board shall provide a verified list of the water rights that it represents at any water district proceeding or meeting to the chairman of the water district proceeding or meeting;
(8) To appropriate, develop, store, and transport water within the state;
(9) To acquire stock in canal companies, water companies, and water users’ associations;
(10) To invest any surplus money in the district treasury pursuant to the public depository law as contained in chapter 1, title 57, Idaho Code;
(11) To develop, maintain, operate and implement mitigation plans designed to mitigate any material injury caused by ground water use within the district upon senior water uses within and/or without the district;
(12) To finance the repair or abandonment of wells in the ground water district which have experienced or are experiencing declines in water level or water pressures because of reasons including, but not limited to, flow, leakage, and waste from improper construction, maintenance, and operation of wells;
(13) To have and exercise the power of eminent domain in the manner provided by law for the condemnation of private property for easements, rights-of-way, and other rights of access to property necessary to the exercise of the mitigation powers herein granted, both within and without the district;
(14) To sue and be sued, and be a party to suits, actions and proceedings;
(15) To enter into joint powers agreements and/or memoranda of understanding with other districts, governmental or quasi-public entities;
(16) To develop and acquire water rights for, and operate, aquifer storage or recharge projects;
(17) To monitor, measure, study, and implement programs in the interests of the district’s members regarding the protection of ground water diversions, depth of water in wells, aquifer water levels and characteristics;
(18) To adopt and amend bylaws not in conflict with the constitution and laws of the state for carrying on the business, objects and affairs of the board and of the district and to establish a fiscal year;
(19) To enter upon land to make surveys, locate district property, works, or facilities, and to otherwise conduct the affairs of the district;
(20) To make, record and report annually to the director sufficient measurements of diversions and water levels of district members to allow the district to be excluded from any water measurements district created pursuant to sections 42-705 through 42-715, Idaho Code;
(21) To divide the district into divisions and precincts following the annexation of lands under sections 42-5245 through 42-5250, Idaho Code, for the purpose of conducting elections as long as any such division is consistent with the parameters established in section 42-5208, Idaho Code; and
(22) To manage and conduct the affairs of the district and to have and exercise all rights and powers necessary or incidental to or implied from the specific powers granted herein. Such specific powers shall not be considered as a limitation upon any power necessary or appropriate to carry out the purposes and intent of this chapter.
[42-5224, added 1995, ch. 290, sec. 1, p. 993; am. 1996, ch. 298, sec. 8, p. 984; am. 2003, ch. 137, sec. 1, p. 400; am. 2005, ch. 367, sec. 10, p. 1161; am. 2025, ch. 141, sec. 2, p. 713.]
Any ground water district organized under the laws of this state is authorized in section 42-234, Idaho Code, to file an application with the department to acquire water rights or to appropriate the unappropriated waters of the state for the purpose of storing waters in, or recharging, ground water basins within the district to aid in the efficient irrigation of district lands, to serve domestic, commercial, municipal or industrial uses within the district, or to carry out a mitigation plan. Upon approval of the application for permit by the director, the district shall proceed in the manner provided by law to construct and operate the ground water storage or recharge project. The construction and operation of the project shall be subject to such additional conditions and limitations as shall be imposed by the director pursuant to sections 42-203A, 42-222 and 42-234, Idaho Code.
[42-5225, added 1995, ch. 290, sec. 1, p. 995; am. 2009, ch. 242, sec. 4, p. 744.]
The board of directors shall have power to construct the works necessary to implement an approved mitigation plan across any stream of water, watercourse, street, avenue, highway, railway, canal, ditch or flume which the works may intersect or cross, in such manner as to comply with the requirements of the stream channel alteration act, chapter 38, title 42, Idaho Code, and to afford security for life and property, provided that the board shall restore the same when so crossed or intersected, to its former state as near as may be, or in a sufficient manner not to have impaired unnecessarily its usefulness; and every company whose railroad shall be intersected or crossed pursuant to this section, shall unite with the board in forming the intersections and crossings and grant the privileges aforesaid; and if such railroad company and the board, or the owners and controllers of the property, thing or franchise to be crossed, cannot agree upon the amount to be paid therefor, or upon the points or the manner of said crossings or intersections, the same shall be ascertained and determined in all respects as herein provided in respect to the taking of land.
[42-5226, added 1995, ch. 290, sec. 1, p. 995.]
No director or any other officer named in this chapter shall in any manner be interested, directly or indirectly, in any contract awarded or to be awarded by the board, or in the profits to be derived therefrom, except as a member of the district; and for any violation of this provision such officers shall be deemed guilty of a misdemeanor, and such conviction shall work a forfeiture of his office, and he shall be punished by a fine not exceeding five hundred dollars ($500), or by imprisonment in the county jail not to exceed six (6) months, or by both such fine and imprisonment.
[42-5227, added 1995, ch. 290, sec. 1, p. 995.]
The indemnification provisions of section 43-204A, Idaho Code, shall apply to ground water districts in the same manner as for irrigation districts.
[42-5228, added 1995, ch. 290, sec. 1, p. 996.]
At least as often as once a year after organization, the board of directors shall make a report to the department of the condition of the work of any mitigation plans developed by the district, as to capacity, stability and permanency, and whether or not any such mitigation plans are being successfully carried out, and whether or not in the opinion of the board the funds available will complete and maintain the mitigation plans. Upon the receipt of such report by the department, it may make such suggestions and recommendations to such board of directors as it deems advisable for the best interest of the district.
[42-5229, added 1995, ch. 290, sec. 1, p. 996.]
On or before the second Tuesday of February of each year the board of directors of each ground water district organized under this chapter shall publish in at least one (1) issue of a newspaper published in the county or counties in which such district is situated, a full, true and correct statement of the financial condition of the district, at the end of the last preceding fiscal year, giving all liabilities and assets of the district, in a form to be prescribed by the controller of the state of Idaho.
[42-5230, added 1995, ch. 290, sec. 1, p. 996.]
Any district board, or the secretary thereof, shall at any time allow any member of the county commission, when acting under resolution of the commissioners, to have access to all books, records and vouchers of the district which are in possession or control of the board of directors or secretary of the board.
[42-5231, added 1995, ch. 290, sec. 1, p. 996.]
(1) The secretary of the board shall be the assessor of the district and, on or before August 1 of each year, shall prepare an assessment book containing a full and accurate list of all lands within the district that are subject to assessment under this chapter.
(2) At a regular meeting of the board between August 1 and November 1 of each year, the board of directors shall determine the amount necessary to be raised for payment of the annual payment on any and all indebtedness of the district for the following year. Money received in payment of such assessments shall be deposited in a separate fund to be known as the debt retirement fund.
(3) The board shall, in addition, determine the assessments necessary to pay, without limitation, the expenses of developing, operating or maintaining any mitigation plan established by the district and the cost of contracts with any person for mitigation plans, or evaluation of proposed contracts. Money received in payment of such assessments shall be deposited in a separate fund to be known as the mitigation expense fund.
(4) The board shall, in addition, determine the assessments necessary to pay maintenance and operation of the district not related to mitigation plans or purposes. These operation and maintenance duties include making the assessment book, giving notice of assessments and making collections thereof, and other duties, programs or projects of the district to the extent such duties, programs or projects are not attributable to mitigation plans or purposes. Money received in payment of such assessments shall be deposited in a separate fund of the district to be known as the operating expense fund.
(5) If, after levying the regular assessments described in this section, the board determines that the money held in such fund is inadequate or prior to the next regular assessment is likely to become inadequate to pay the expenses for which such fund exists, the board may levy an emergency assessment to pay such additional expenses; provided, that the board shall, at least fourteen (14) days prior to the meeting at which the board determines the amount necessary to pay such expenses, mail written notice of the board’s intent to levy an emergency assessment to each member of the district at the address on file with the district.
(6) If a mitigation plan has been approved and a district member fails to operate in accordance with the plan, the board may take action to mitigate such member’s noncompliance and levy a special assessment against such member equal to one hundred twenty-five percent (125%) of all costs incurred by the district to mitigate such member’s noncompliance. If the noncompliance constitutes excess water use, the board may alternatively levy a special assessment of up to three hundred dollars ($300) per acre-foot of excess water use.
(7) Any ground water user who becomes a member of a district for mitigation purposes shall be subject to no assessment beyond his proportional share of the costs, including administrative costs and other reasonable expenses, of any mitigation plan or actions or activities in furtherance of the district’s mitigation plans or purposes.
(8) No assessment made pursuant to this chapter shall be a lien against any municipal property.
(9) Except as otherwise provided in this chapter, each member shall pay a proportionate share of the total of all amounts to be assessed for the purposes aforementioned, which share shall be based on (a) the ratio that the quantity of water the member is authorized to divert under the member’s ground water right(s) bears to the total quantity of water authorized for diversion under the ground water rights of all members of the district, or (b) the ratio that the number of acres the member is authorized to irrigate under the member’s ground water right bears to the total number of acres authorized for irrigation under the ground water rights of all members of the district; provided, that the board shall be entitled to levy assessments that adjust a member’s proportionate share to take into consideration priority dates, consumptive use under the members’ respective ground water rights, other attributes of the ground water rights appurtenant to the assessed lands, and/or the benefits the member derives from a mitigation plan or other activity of the district. Any nonirrigator who is a member of a ground water district, or whose ground water rights are appurtenant to property located within a ground water district, and who has adopted and implemented a mitigation plan that has been approved by the director and that is not inconsistent with such a plan approved by the director and adopted and implemented by the ground water district, shall be entitled to an assessment credit for the contribution made by that nonirrigator’s mitigation plan toward the district’s mitigation obligation as determined by the director.
[42-5232, added 1995, ch. 290, sec. 1, p. 996; am. 2006, ch. 355, sec. 2, p. 1087; am. 2016, ch. 112, sec. 1, p. 317; am. 2019, ch. 33, sec. 1, p. 93; am. 2024, ch. 60, sec. 1, p. 286.]
(1) In order to secure funds for the mitigation plan or plans for the district, the board of directors may, by resolution duly adopted and entered upon the minutes, incur indebtedness by contract with a money lending institution; provided however, that the term of such indebtedness shall not exceed thirty (30) years. To secure the repayment of any indebtedness so incurred, the board shall levy assessments over the term of the indebtedness in amounts sufficient to repay the interest and principal as it falls due. Such assessments shall be levied in the manner and shall be subject to the limitations set forth in section 42-5232, Idaho Code. Assessments to repay debt with a term exceeding one (1) year may be levied only if the indebtedness has been approved at an election pursuant to sections 42-5234 through 42-5238, Idaho Code.
(2) Notwithstanding the provisions of subsection (1) of this section, the board of directors may, before the collection of the first assessment, incur indebtedness for the purpose of organization, or for any of the purposes of this chapter, and cause warrants of the district to issue therefor, provided that the total dollar amount of the warrants authorized to be issued shall not exceed three dollars ($3.00) for each acre of land authorized to be irrigated with ground water within the district, or for each two-hundredths (.02) of a cubic foot per second of ground water authorized to be diverted and used upon lands or facilities located within the district. Following the collection of the first assessment, the board of directors may at any time issue warrants of the district for the purpose of paying claims of indebtedness against the district, including salaries of officers and employees, not to exceed the district’s anticipated revenue.
(3) The warrants herein authorized shall be in form and substance the same as county warrants or as nearly the same as may be practicable and shall be signed by the chairman and attested by the secretary of said board. All such warrants shall be presented by the holder thereof to the treasurer of the district for payment who shall endorse thereon the day of presentation for payment with the additional endorsement thereon, in case of nonpayment, that they are not paid for want of funds, and such warrants shall draw interest at a rate to be established by the board of directors from the date of their presentation to the treasurer for payment as aforesaid until such warrants are paid. No warrants shall be issued in payment of any indebtedness of such district for less than face or par value. It shall be the duty of the treasurer from time to time when sufficient funds are available for that purpose to advertise in a newspaper in the county in which the district is situated requiring the presentation to the treasurer for payment of as many of the outstanding warrants as are able to be paid. Ten (10) days after the first publication of said notice by the treasurer calling in any of said outstanding warrants, said warrants shall cease to bear interest, which shall be stated in the notice. Said notice shall be published two (2) weeks consecutively and said warrants shall be called in and paid in the order of their endorsement.
[42-5233, added 1995, ch. 290, sec. 1, p. 997; am. 2005, ch. 367, sec. 11, p. 1163; am. 2015, ch. 309, sec. 1, p. 1214; am. 2016, ch. 112, sec. 2, p. 318; am. 2016, ch. 113, sec. 1, p. 321.]
(1) The board may by resolution adopted by a two-thirds (2/3) majority of the board, determine that the interest of the district and the public interest and necessity demand the development and operation of a mitigation plan and shall set forth the amount of obligation or contract indebtedness proposed to be issued by the district under the provisions of this chapter for the development of such mitigation plan. If any obligation or contract indebtedness has a repayment term exceeding one (1) year, the board shall submit the obligation or contract indebtedness in the proposed resolution to a vote of the qualified electors of the district as defined in section 42-5210, Idaho Code, at an election to be held only if within fifteen (15) days after the passage of such resolution a referendum petition signed by qualified electors of the district whose aggregate ground water rights equal not less than ten percent (10%), measured in cubic feet per second or acres irrigated, of the aggregate ground water rights of all qualified electors of the district, shall be filed with the secretary of the district requesting that an election upon the issuance of the contract indebtedness be held and conducted under the provisions of this section. Any election required to be held pursuant to a referendum petition filed in accordance with this section for the purpose of submitting any proposition or propositions of incurring such obligation or indebtedness shall be held in accordance with section 34-106, Idaho Code. The resolution, in addition to such declaration of public interest or necessity, shall recite the objects and purposes for which the indebtedness is proposed to be incurred, the estimated cost of the mitigation plan, the amount of principal of the indebtedness to be incurred therefor, and the sources of the revenues and assessments pledged to the payment of the indebtedness. The separate election upon the assessments, shall be held at the same time as and shall be combined with any such election required to be held upon the indebtedness question pursuant to a referendum petition.
(2) Any election for indebtedness required to be held hereunder shall be called by resolution, which resolution shall also fix the date upon which such election shall be held, the manner of holding the same and the method of voting for or against the incurring of the indebtedness. Such resolution shall also fix the compensation to be paid the officers of the election and shall designate the precincts and polling places and shall appoint for each polling place, from each precinct from the electors thereof, the officers of such election, which officers shall consist of three (3) judges, one (1) of whom shall act as clerk, who shall constitute a board of election for each polling place. The description of precincts may be made by reference to any order or orders of the county commission of the county or counties in which the district or any part thereof is situated, or by reference to any previous order, or resolution of the board or by detailed description of such precincts. Precincts established by the county commissions of the various counties may be consolidated for special elections held hereunder. In the event any such election shall be called to be held concurrently with any other election or shall be consolidated therewith, the resolution calling the election hereunder need not designate precincts or polling places or the names of officers of election, but shall contain reference to the act or order calling such other election and fixing the precincts and polling places and appointing election officers therefrom. The resolution calling the election shall prescribe an official notice of election, which notice shall be published once a week for two (2) consecutive weeks, the last publication of which shall be at least ten (10) days prior to the date set for said election, in a newspaper of general circulation printed and published within the district, and no other or further notice of such election or publication of the names of election officers or of the precincts or polling places need be given or made.
(3) The respective election boards shall conduct the election in their respective precincts in the manner prescribed by law for the holding of district elections to the extent the same shall apply and shall make their returns to the district secretary. At any regular or special meeting of the board held not earlier than five (5) days following the date of such election, the returns shall be canvassed and the results declared.
(4) If no referendum petition is filed, or if so filed, if it shall appear from the returns that the qualified electors of the district representing two-thirds (2/3) of the aggregate ground water rights of the district, such fraction computed according to cubic feet per second, have voted in favor of the proposition, the district thereupon shall be authorized to incur such indebtedness or obligations, or enter into such contracts, all for the purposes provided for in the proposition submitted in the resolution, and in the amount so provided. Submission of the proposition of incurring such obligation or other indebtedness at such an election shall not prevent or prohibit submission of the same or other propositions at subsequent election or elections called for such purpose.
[42-5234, added 1995, ch. 290, sec. 1, p. 998; am. 2016, ch. 112, sec. 3, p. 319; am. 2016, ch. 113, sec. 2, p. 322.]
(1) Prior to the incurring of indebtedness with a repayment term exceeding one (1) year, the board shall file a petition in the district court of the county in which the office of the board is located, pursuant to the provisions of sections 43-406 through 43-408, Idaho Code, as if the district were an irrigation district. Whenever any district which is required to file a petition hereunder has or proposes to enter into a contract or contracts with one (1) or more districts pursuant to law, and such other district or districts is authorized or required to bring a confirmation proceeding or proceedings pursuant to the provisions of section 43-406 or section 43-1808, Idaho Code, with respect to such contracts or the levy of assessments or the apportionment of costs, the boards of each of such other districts shall join in the filing of such petition, and the district court in which such petition is filed shall have jurisdiction to hear the petition and to grant the relief prayed for therein. Each such petition shall pray for a judicial examination and determination of any power conferred hereby or by any amendment hereto or of any assessment levied or of any apportionment of costs or of any act, proceeding or contract of the district or districts, whether or not said contracts shall have been executed, including, without limitation, proposed contracts for the reconstruction, rehabilitation, replacement and improvement of any well and other related structures and works and appurtenances, falling water contracts, contracts with other districts and contracts with other public and private persons, firms, corporations and associations. Such petition shall set forth the facts whereon the validity of such powers, assessments, apportionments, acts, proceedings or contracts is founded. Notice of the filing of said petition shall be given by the clerk of the court by mailing, and by publication in at least one (1) newspaper published and of general circulation within the boundaries of each district joining in the petition, or if no newspaper is so published within any district, then in a newspaper published in the same county in which any part of such district is located which is of general circulation in such district, pursuant to and in accordance with the requirements of section 43-407, Idaho Code, as if the district were an irrigation district under the seal thereof, stating in brief outline the contents of the petition and showing where a full copy of any contract or contracts, therein mentioned, may be examined.
(2) Any ground water user in any district joining in the petition or any other person interested in the contracts or proposed contracts may appear and answer the petition at any time prior to the date fixed for the hearing or within such further time as may be allowed by the court; and the petition shall be taken as confessed by all persons who fail so to appear. The said petition and notice shall be sufficient to give the court jurisdiction and, upon hearing, the court shall examine into and determine all matters and things affecting the question submitted, shall examine all of the proceedings of all of the districts as set forth in the petition, shall hear all objections either filed in the proceeding or brought up from the hearings before any of the boards, shall correct all errors in the assessments and apportionments of costs, shall ratify, approve and confirm all apportionments of costs and assessments levied, shall make such findings with reference thereto and render a judgment and decree thereon approving and confirming all of the powers, assessments, apportionments, acts, proceedings and contracts of each of the districts as set forth in the petition as the case warrants. Costs may be divided or apportioned among the contesting parties in the discretion of the trial court. Review of the judgment of the court may be had as in other similar cases. The Idaho rules of civil procedure shall govern in matters of pleading and practice where not otherwise specified herein. The court shall disregard any error, irregularity or omission which does not affect the substantial rights of the parties. Except as provided herein, the provisions of sections 43-406 through 43-408, Idaho Code, shall apply to the proceeding herein authorized as though the ground water district were an irrigation district.
[42-5235, added 1995, ch. 290, sec. 1, p. 1000; am. 2016, ch. 113, sec. 3, p. 323.]
If any official required to participate in any act leading to the calling or holding of the required election or the execution of any required contract shall refuse to perform such act alleging as his reason illegality of the proposed election or the proposed contract, the board may institute judicial proceedings to compel such steps to be taken and legality of the election or the contract to be determined. All cases in which there may arise a question of the validity of any proceeding under this act shall be advanced as a matter of immediate public interest and concern, and heard at the earliest practicable moment. The courts shall be open at all times for the purposes of this act.
[42-5236, added 1995, ch. 290, sec. 1, p. 1001.]
Interim notes, and the interest thereon, issued pursuant to the authority contained in this chapter shall be exempt from taxation under the Idaho income tax law.
[42-5237, added 1995, ch. 290, sec. 1, p. 1001.]
Any restrictions, limitations or regulations relative to the execution of such contracts pursuant to the authority herein contained in any other act shall not apply to the execution of such contracts pursuant to the authority herein contained. Any act inconsistent herewith shall be deemed modified to conform with the provisions of this chapter for the purpose of this chapter only. This chapter being necessary to secure and preserve the public health, safety, convenience and welfare, and for the security of public and private property, it shall be liberally construed to effect the purposes of this chapter.
[42-5238, added 1995, ch. 290, sec. 1, p. 1001.]
If in any year the board of directors fails to levy assessments for the repayment of indebtedness in amounts sufficient to meet a payment or payments falling due, the lender may bring an action in the district court of any county in which the district is situated to compel the board to levy assessments in amounts sufficient to insure the payment thereof. In the event that the annual assessment to meet a payment or payments falling due will be unreasonably high, the district court may, in the alternative, enter an order requiring that moneys received by the district in payment of assessments for all purposes be first expended for the repayment of that portion of the indebtedness falling due.
[42-5239, added 1995, ch. 290, sec. 1, p. 1001.]
From and after February 1 of any year, all assessments, other than those levied against municipalities, shall be liens against the land of ground water users to which the water rights used to determine assessments are appurtenant, and notwithstanding anything to the contrary in this chapter or any provisions incorporated therein by reference, shall be superior to the lien of any mortgage or deed of trust, whether prior in time or not, provided that notice of the assessment delinquency is sent to the mortgage or deed of trust holder at least sixty (60) days prior to any foreclosure sale of the property. Said assessment liens shall not be removed until the assessments are paid or the property is sold for the payment thereof, and shall constitute such lien until paid. Upon any sale of the property, the purchaser at such sale shall take the property subject to any annual assessments of the district subsequent in time to the assessment for which the foreclosure occurred. Nothing in this section alters or affects any liens of water related districts or entities authorized pursuant to Idaho law.
[42-5240, added 1995, ch. 290, sec. 1, p. 1002; am. 2011, ch. 325, sec. 1, p. 950; am. 2025, ch. 141, sec. 3, p. 715.]
(1) District assessments levied pursuant to subsections (2) through (4) of section 42-5232, Idaho Code, shall be billed and collected in one (1) of the following ways:
(a) On or before the first day of December, the treasurer of the district shall mail an assessment bill to each water user and shall publish a notice for a period of not less than two (2) weeks in a newspaper published or having general circulation in each of the counties in which any part of the district is situated, which bill and notice shall set forth the date by which assessments must be paid and the times and places at which payment may be made. Assessments collected by the ground water district shall be due and payable on or before December 31 of each year, after which date each unpaid assessment shall be delinquent; shall bear interest at the rate of interest established for money due on judgments until paid; shall entitle the district to take any appropriate action to collect the assessment, including suit and the foreclosure of liens as provided in this chapter; and, in addition, shall be subject to a penalty in the amount of fifteen dollars ($15.00) per delinquent assessment; or
(b) The board of directors of any ground water district organized under the laws of this state desiring to provide for the collection of district assessments by the county treasurer instead of the district treasurer may do so by adopting a resolution providing for collection by the county treasurer, and furnishing a copy of the resolution to the county auditor of each county in which any of the district lands are located; provided that the county commissioners of the county or counties must first approve the ground water district resolution by a proper resolution of the board of county commissioners adopted by a majority of the county commissioners and made and entered upon the minutes of the board or boards of county commissioners. The board of county commissioners’ resolution may provide for collection fees and for any additional fee against the ground water district for the cost of transferring records and initiating the collection process. The board of county commissioners of any county, having determined that the collection of ground water district assessments is an undue burden upon the county and shall no longer be provided, shall notify the board of directors of the ground water district by December 1 in the year preceding the year for which the action shall first be effective by providing to the board of directors a certified copy of the majority decision of the board of county commissioners.
If the ground water district board determines to issue assessments through the respective counties, the treasurer of the ground water district first shall prepare a list containing the legal description, the assessor’s parcel number, the name and last known address of the owner of record, and the amount of the assessment for each parcel. The sum assessed and charged against each parcel shall be entered by the ground water district as the operation and maintenance assessment of the (name of district) ground water district. On or before the third Tuesday of July of each year, the list shall be certified by the treasurer of the ground water district to the county auditor of the county in which the lands are located, and the county treasurer shall enter the same upon the tax rolls, as provided by law for the entry of taxes, against the land of each of the persons named in the list, together with the amounts thereof; and the same shall be subject to the same interest and penalties in case of delinquency as in the case of property taxes and shall be collected in the same manner as taxes and subject to the same right of redemption, and the lands sold for the collection of delinquency shall be subject to the same right of redemption as the sale of land for property taxes.
When a ground water district includes lands in more than one (1) county, the treasurer of the ground water district shall prepare separate lists for the county assessor for each county. When a parcel lies partly in one county and partly in another county, only the portion in a county shall be included on the list for that county. If the legal description of any parcel on any such list differs from the legal description as shown by the assessor’s records, the assessor shall notify the district treasurer of the discrepancy and the district treasurer shall submit to the county assessor an addendum changing the description to conform with the assessor’s records; provided, that where the discrepancy between the descriptions occurs because a portion of the parcel lies outside the district, no change in description shall be required and the district assessments shall be effective only as to the portions of any parcel that are within district boundaries.
Assessments shall be due and payable on the date specified in the county’s tax notice, shall be collected and accounted for by the county treasurer in the same manner as property taxes, and shall be paid over to the ground water district treasurer together with any penalties or interest collected. The county shall enforce the collection of assessments in the same manner as it enforces the collection of taxes of the county, and failure to pay the assessment shall be subject to the same penalties. The collection of a ground water district’s assessments by the county treasurer shall not make the district’s obligations respecting any bond, contract, debt, or interest the obligation of the county.
(2) District assessments levied pursuant to subsection (5) or (6) of section 42-5232, Idaho Code, shall be billed and collected in one (1) of the ways as provided in subsection (1) of this section, provided that assessments billed and collected pursuant to subsection (1)(a) of this section may be mailed at any time of the year and shall be due and payable within thirty (30) days after mailing.
[42-5241, added 1995, ch. 290, sec. 1, p. 1002; am. 1996, ch. 298, sec. 9, p. 985; am. 2019, ch. 33, sec. 2, p. 94.]
(1) On or before February 15 of each year the treasurer shall enter the amount of all delinquent assessments on the assessment book, which entry shall be considered to be dated as of the first day of February. Such entry shall have the force and effect of a sale to the treasurer of the district as grantee in trust for the district of all property to which a lien has attached as a result of such unpaid assessments.
(2) The treasurer shall compile a list of such delinquency entries which shall contain the names of the persons or entities to whom the assessments were directed and the amount of such delinquent assessments together with the amount of the penalties to be added thereto. A certified copy of the delinquency list, duly acknowledged by the treasurer, shall be filed with the county recorder of each county in which the properties affected by such delinquent assessments are located, and the treasurer shall then provide by certified mail a notice of delinquency to each ground water user having a delinquent assessment.
(3) Upon the payment in full of any delinquent assessment and penalty that was entered on a recorded delinquency list, the treasurer shall file with the county recorder of each county in which the list of delinquent assessments was recorded an acknowledged notice that the delinquent assessment and any penalty owed has been paid in full. The treasurer shall file any notices of payment of delinquent assessments with the county recorders, as required, on at least a monthly basis.
[42-5242, added 1995, ch. 290, sec. 1, p. 1002; am. 2005, ch. 367, sec. 12, p. 1163; am. 2025, ch. 141, sec. 4, p. 715.]
The manner in which property subject to a lien for nonpayment of assessments may be redeemed, and if not redeemed, shall be sold as provided in sections 43-712, 43-715 through 43-721, 43-724 and 43-726, Idaho Code, to the extent that the provisions thereof are in keeping with the provisions of this chapter.
[42-5243, added 1995, ch. 290, sec. 1, p. 1002.]
(1) The board of directors may apportion among district members mitigation plan obligations requiring district members to limit the amount of water diverted under their respective ground water rights or perform other actions to mitigate material injury to senior priority water rights caused by ground water use within the district.
(2) Each member shall bear a proportionate share of the district’s total mitigation obligation. The proportionate share shall be based on:
(a) The ratio which the quantity of water the member is authorized to divert under the member’s ground water right(s) bears to the total quantity of water authorized for diversion under the ground water rights of all members of the district; or
(b) The ratio which the number of acres the member is authorized to irrigate under the member’s ground water right bears to the total number of acres authorized for irrigation under the ground water rights of all members of the district.
(3) The board shall adjust each member’s proportionate share of the district’s obligation based on priority date, unless the mitigation plan benefits all members equally. The board may additionally adjust a member’s proportionate share of the district’s obligation based on consumptive use under the member’s ground water rights or other attributes of the member’s ground water rights.
(4) Any nonirrigator who is a member of a ground water district, or whose ground water rights are appurtenant to property located within a ground water district, may propose a separate mitigation plan to the director. If the director approves the nonirrigator’s mitigation plan, and the nonirrigator implements the mitigation plan, the nonirrigator shall be entitled to a credit for the contribution made by that nonirrigator’s mitigation plan toward the district’s mitigation obligation as determined by the director.
[42-5244A, added 2019, ch. 261, sec. 2, p. 771.]
A water user who is delinquent in the payment of any assessment under this chapter, or who has failed to comply with any apportionment of mitigation obligations imposed by the board under this chapter, shall not be entitled to divert ground water until such delinquent assessment is paid in full and noncompliance is remedied in full. To commence enforcement, the district shall submit to the director a report documenting the delinquent assessment or noncompliance with the apportionment of mitigation plan obligations. For delinquent assessments, the report shall contain an accounting of the basis for the assessment, the apportionment of those assessments among district members, and the ground water user’s delinquency in the payment of those assessments. For noncompliance with the apportionment of mitigation plan obligations, the report shall identify the mitigation plan under which the mitigation plan obligations were apportioned, explain the basis for the apportionment of those obligations among district members, and document the water user’s noncompliance with the apportioned mitigation obligations. If, after the director analyzes information in the report, the director concludes that the district has reasonably apportioned those assessments based on the factors set forth in section 42-5232(7), Idaho Code, or has reasonably apportioned those mitigation plan obligations based on the factors set forth in section 42-5244A, Idaho Code, the director shall instruct the water master to curtail all ground water diversions by the water user for which assessments are delinquent or for which the user has not complied with the mitigation obligations apportioned to the user. Any person aggrieved by the action of the director and who has not previously been afforded an opportunity for a hearing on the matter shall be entitled to a hearing before the director to contest the action pursuant to section 42-1701A(3), Idaho Code. No district shall commence enforcement under the provisions of this section prior to January 1, 2020. The director shall not curtail ground water diversions based on delinquent assessments levied prior to April 1, 2019, or based on mitigation plan noncompliance that occurred prior to April 1, 2019.
[42-5244B, added 2019, ch. 261, sec. 3, p. 772.]
Any ground water user, as defined in section 42-5201(8), Idaho Code, as well as any user of ground water for domestic or stock use as defined by sections 42-111 and 42-1401A, Idaho Code, may file with the board a petition in writing praying that the land and/or facilities listed under the ground water user’s ground water right(s) may be annexed into the district. The petition shall contain a legal description of the lands and any other information the district may require, and the petitioner shall state under oath that petitioner holds the title to said lands. If the ground water user is a nonirrigator, the petition shall state if the ground water user is seeking to join the district solely to participate in the district’s mitigation plans and other mitigation activities.
[42-5245, added 1995, ch. 290, sec. 1, p. 1003; am. 2005, ch. 367, sec. 14, p. 1164; am. 2016, ch. 109, sec. 1, p. 314.]
The board secretary shall cause a notice of the filing of such petition to be published in the manner of notices of elections. The notice shall state the filing of such petition, and the name of the petitioner, a description of the lands mentioned in the said petition, and it shall notify all persons interested in or that may be affected by such change of boundaries of the district, to appear at the office of said board, at a time named in said notice, and show cause in writing, if any they have, why the lands mentioned should not be annexed to said district. The petitioner shall advance to the secretary sufficient money to pay the estimated costs of all proceedings under this chapter.
[42-5246, added 1995, ch. 290, sec. 1, p. 1003.]
The board, at the time mentioned in said notice or at such other time to which the hearing may be adjourned, shall hear the petition and all the objections thereto. The failure of any person to appear and object shall be taken as an assent on his part to a change of the boundaries of the district as requested in the petition, or to such a change thereof as will include a part of the lands.
[42-5247, added 1995, ch. 290, sec. 1, p. 1003.]
(1) The board of directors may require, as a condition to the granting of an annexation petition, that the petitioners shall severally pay to the district such respective sums, as nearly as the same can be estimated, as said petitioners, or their grantors, would have been required to pay such district, had such lands been included in such district at the time it was originally formed, together with a proportionate share of the expenses of the district accrued since formation.
(2) If the petition of a nonirrigator seeks only to participate in the district’s mitigation plans and other mitigation activities, the board may require a proportionate sum of the mitigation expenses accrued since the district was originally formed to be paid as a condition to the granting of an annexation petition.
[42-5248, added 1995, ch. 290, sec. 1, p. 1003; am. 2016, ch. 109, sec. 2, p. 314.]
(1) If the board of directors deems a proposed annexation not to be in the best interests of the district to include the lands mentioned in the petition, the board shall reject the petition. But if they deem it for the best interest of the district, the board may order the lands mentioned in the petition or some part thereof be annexed to the district.
(2) The order shall describe the lands to be annexed to said district and the board may cause a survey thereof to be made if deemed necessary. Thereafter the annexed land shall be subject to such assessments from time to time as the board of directors shall deem right under the circumstances, and such assessments shall be deemed to be assessments for benefits to said lands by reason of their annexation to said district. The directors shall state on their minutes at their next regular meeting which division and election precinct in said district the said lands so annexed shall be attached, and, if necessary, the board shall make an order redividing the district into divisions and election precincts, in the same manner and to like effect, as near as may be, as provided for that purpose on the formation of a district.
(3) If the board determines that it is in the best interest of the district, the board may create additional divisions and election precincts in the district following the annexation of additional lands. Any new division created within the district for the purpose of conducting elections following the annexation of lands must be consistent with the parameters established in section 42-5208, Idaho Code. If the board creates a new division and reallocation, the board shall make an order redividing the district into divisions, including the new division and election precinct.
[42-5249, added 1995, ch. 290, sec. 1, p. 1004; am. 2025, ch. 141, sec. 1, p. 713.]
Upon a change of the boundaries of a district becoming effective, a copy of the order of the board of directors ordering such change, certified by the president and secretary of the board, shall be filed for record in the recorder’s office of each county within which are situated any of the lands of the district, and thereupon the district shall be and remain a ground water district, as fully and to every intent and purpose as if the lands which are included in the district by the change of the boundaries had been included therein at the original organization of the district.
[42-5250, added 1995, ch. 290, sec. 1, p. 1004.]
(1) Any district member who is an irrigator may file with the district board a petition requesting that the member’s irrigated lands be excluded from the district. The petition may request that the lands either be excluded for all purposes or be excluded for all purposes except mitigation. The petition shall be signed by each petitioner, and shall state that continued inclusion of the irrigated lands in the district is inappropriate or unwarranted:
(a) Because the diversions of ground water under the ground water irrigator’s water right have no depletive effect on any water source, either individually or cumulatively when considered in conjunction with other similar diversions;
(b) Because the only ground water use associated with the lands sought to be excluded by the petition is a domestic or stock water use as defined by sections 42-111 and 42-1401A, Idaho Code;
(c) Because the exclusion of the lands will not impair the district’s ability to repay debt or carry out mitigation plans;
(d) Because the exclusion is in the best interests of the district and its members; or
(e) For other compelling reasons.
The board shall consider the petition and, based on findings concerning such factors, the board shall grant or deny the petition within ninety (90) days of the date it is filed, unless the board, in its sole discretion, grants a hearing on the petition within such time period, in which case the board shall issue a final decision within sixty (60) days after the conclusion of the hearing.
(2) Any district member who is a nonirrigator, may file with the district board a petition requesting that the member’s lands be excluded from the district. The petition may request that the lands either be excluded for all purposes or be excluded for all purposes except mitigation. The petition shall be signed by each petitioner, but need not be acknowledged. The board shall consider the petition and grant or deny the petition within ninety (90) days of the date it is filed, unless the board, in its sole discretion, grants a hearing on the petition within such time period, in which case the board shall issue a final decision within sixty (60) days after the conclusion of the hearing.
(3) All costs incurred by the district in carrying out an exclusion proceeding shall be assessed as provided in section 42-5253, Idaho Code. A person purchasing land under a written contract shall be deemed to be the owner of that land for purposes of this section.
[42-5251, added 1995, ch. 290, sec. 1, p. 1004; am. 2005, ch. 367, sec. 15, p. 1165; am. 2006, ch. 355, sec. 4, p. 1088.]
(1) A petition for exclusion shall set forth or include the following:
(a) A description of the land and/or facilities of petitioner for which exclusion is requested, together with such evidence of ownership of the land and/or facilities as is satisfactory to the district board;
(b) A representation that no mortgagee or other person holds a lien of record in the county where the land for which exclusion is requested is located, for which the lienholder’s consent to the exclusion is required or that, if such consent is required, the consent has been granted by the lienholder;
(c) If the member seeks exclusion for all purposes, an explicit written waiver and relinquishment, on a form provided by the board or otherwise, of all right to rely upon or be covered by any program, plan, activity or benefits of any kind provided by or through the district;
(d) If the member seeks to be excluded from the district for all purposes except mitigation, an explicit written waiver and relinquishment stating that the member recognizes and agrees that:
(i) The member no longer will be entitled to vote or participate in the governance of the district, to nominate directors, or to serve as a director of the district except as specified in this chapter;
(ii) The member will remain subject to all assessments pertaining to the district’s mitigation program(s) or plans;
(iii) The member will be entitled to receive no benefits of any kind from the district except those pertaining to mitigation purposes.
(e) Regardless of whether the exclusion will be for all purposes or for all except mitigation purposes, an explicit written statement, on a form provided by the board or otherwise, that the member recognizes and agrees that he will remain liable to the district, and subject to assessment, for any financial indebtedness the member may have to the district for indebtedness incurred before exclusion occurs.
(2) The district board shall return to the petitioner any petition not accompanied by the information required in subsection (1) of this section, and no further action shall be required of the board with respect to such petition. The petitioner shall be liable for any expenses or damages to lienholders or to other landowners or to the district resulting directly or indirectly from wrongful exclusion of lands by reason of untrue or incorrect statements in the petition.
(3) The petition for exclusion shall be signed by the member and be acknowledged in front of a notary public in the same manner as for deeds of land.
[42-5252, added 1995, ch. 290, sec. 1, p. 1004.]
(1) In the event the district’s board of directors grants a petition for exclusion, the board shall, by resolution, make an order forthwith excluding the lands described in the petition either for all purposes or for only those purposes not related to mitigation. No hearing is required prior to granting a petition for exclusion.
(2) At a minimum, the order of exclusion shall specify that:
(a) Lands excluded for all purposes shall not be a part of or be entitled to receive any benefits from the district;
(b) Lands excluded only for purposes not related to mitigation, shall continue to be part of the district for mitigation purposes only and shall be assessed for these purposes as provided under this chapter;
(c) Any excluded lands are subject to the requirements of section 42-5257, Idaho Code.
(d) When the petition is filed on or before December 1 in any calendar year, any assessment, other than those specified in section 42-5257, Idaho Code, against the land for any calendar year subsequent to the year in which the petition was filed shall not be valid and no lien for any such attempted assessment shall attach under section 42-5240, Idaho Code.
[42-5253, added 1995, ch. 290, sec. 1, p. 1005; am. 2005, ch. 367, sec. 16, p. 1165.]
The board of directors may cause any survey to be made it deems necessary for the purpose of determining the change in the district by reason of an exclusion or proposed exclusion. If the land described in the petition is described in accordance with the public survey or in accordance with a plat approved, filed and recorded as provided by law, the cost of survey shall be borne by the district, otherwise the cost shall be borne by petitioner.
[42-5254, added 1995, ch. 290, sec. 1, p. 1006.]
The costs of excluding any land as provided in this chapter shall be borne by the petitioner or petitioners except as provided in section 42-5254, Idaho Code. The board may require a deposit of the estimated costs before granting the petition. If the actual costs of completing the exclusion of the lands from the district are less than the amount deposited by the petitioner, the balance shall be refunded to the petitioner within fourteen (14) days after the final action for the exclusion is completed. If the actual costs of the exclusion of the lands is more than the deposit, the difference shall be paid to the district by the petitioner within fourteen (14) days after receipt of a statement to that effect from the district, and the board’s order of exclusion shall not be effective until the difference is paid.
[42-5255, added 1995, ch. 290, sec. 1, p. 1006.]
Any decision and order of the board of directors or the district court, in case of appeal, excluding the petitioner’s land and changing the boundaries of such ground water district shall be filed for record in the recorder’s office of the county or counties within which are situated the lands of such ground water district.
[42-5256, added 1995, ch. 290, sec. 1, p. 1006; am. 2005, ch. 367, sec. 17, p. 1166.]
(1) Except as otherwise provided in this chapter, land and/or facilities excluded from any ground water district shall not thereafter be entitled to any of the rights and benefits of the district and shall be deemed to have fully relinquished all such rights and benefits.
(2) Land and/or facilities fully excluded from a district and those excluded only from nonmitigation purposes shall be subject to assessment and be otherwise chargeable for the payment and discharge of all obligations outstanding at the time of the entry of the exclusion order as fully as though the land had not been excluded. Such obligations shall include, but are not limited to, their proportionate share of any of the district’s existing indebtedness that was incurred for a project or activity that: (a) provided a benefit to such lands prior to the exclusion and for which benefit the excluded lands remain indebted; or (b) continues to benefit such lands even after the exclusion. Where either of these circumstances exists, excluded lands shall remain a part of the district for the purpose of discharging such existing contract indebtedness, and otherwise shall be obligated to pay all regular and special assessments to retire such debt as if they had not been excluded. The district’s board of directors may allow any debt or obligation against any excluded land and/or facility to be paid in installments or in any other manner the board deems equitable.
(3) All provisions which could be used to compel the payment by excluded land of its portion of the outstanding obligations had the exclusion not occurred, may be used to compel the payment on the part of the land of the portion of the outstanding obligations of the district for which it is liable.
(4) When any member obtaining the exclusion of land from a ground water district has paid to the district all of the debts and obligations of the district assessable, chargeable or allocable to the land and/or facility excluded, the district may issue its certificate of full payment executed by the president and secretary of the district, and acknowledged so that the certificate may be recorded in the records of the county wherein the land is situate.
[42-5257, added 1995, ch. 290, sec. 1, p. 1006.]
Where lands have been excluded from a ground water district they may be reinstated to the district by following the procedures provided in sections 42-5245 through 42-5250, Idaho Code, except that the board of directors, in its discretion, may refuse for any reason to annex such lands to the district.
[42-5258, added 1995, ch. 290, sec. 1, p. 1007.]
Upon written request from any ground water user who is not a member of a district, a district board of directors may enter a contract with such nonmember pursuant to which the nonmember shall be allowed to participate fully in, and obtain all benefits of, any mitigation plan, purpose or activity the district currently has in force or is developing, pursuant to terms and conditions acceptable to both parties, provided that:
(1) The board finds that the plan is likely to be effective in mitigating the effects of such nonmember’s ground water use, and that including the nonmember within the mitigation plan’s coverage will not impair the plan’s effectiveness as to district members;
(2) If the district’s mitigation plan has been approved by the director, the board shall evaluate the contract request in accordance with any conditions of the district’s mitigation plan which address equitable participation by ground water users who do not initially participate in such mitigation plan;
(3) Before the contract may be effective, the board may collect from the nonmember a payment adequate to compensate the district for the nonmember’s proportional share of the costs the district already has incurred in developing and implementing the mitigation plan;
(4) The board may include in the contract a provision requiring the nonmember to pay a reasonable surcharge, either annually or on some other basis, to reimburse the district for such nonmember’s proportional share of those past or future costs of operating the district attributable to formulating or implementing the mitigation plan or plans in which the nonmember is participating;
(5) The board may require the nonmember to provide security to assure the payment of all assessments and charges related to the contract.
[42-5259, added 1995, ch. 290, sec. 1, p. 1007; am. 2005, ch. 367, sec. 18, p. 1166; am. 2016, ch. 110, sec. 1, p. 315.]
The state board of land commissioners may, by resolution duly passed at any meeting of such state board and recorded in its minutes, after due consideration in each specific case, authorize the governor of the state of Idaho, as chairman of the board of land commissioners, to sign a petition for the annexation of adjacent Idaho state lands to a district, or sign a petition to exclude such state lands from a district. The governor shall be deemed the owner of such state lands for the purpose of signing any petition herein authorized, with like effect as the owner of private lands.
[42-5260, added 1995, ch. 290, sec. 1, p. 1008.]
Whenever a majority of the members entitled and qualified to vote in district elections so desire, they may petition the board to call a special election to submit to the qualified district electors a proposal to vote on the dissolution of the district. The petition shall set forth the reasons for such proposal. The petition for dissolution of the district shall state that all the district’s outstanding legal and enforceable obligations of every nature whatsoever have been fully satisfied and paid or shall set forth facts showing reasonable grounds for the belief that the consent of the holders of all such district obligations can be obtained, or that the district is able to satisfy all those not consenting.
[42-5261, added 1995, ch. 290, sec. 1, p. 1008.]
It shall be the duty of the said board of directors, if it approves the dissolution petition, to call an election in accordance with section 34-106, Idaho Code, for the purpose of submitting to the qualified electors of the district the proposal for dissolution of the district.
[42-5262, added 1995, ch. 290, sec. 1, p. 1008.]
Notice of such election must be given by posting notices in five (5) public places in each election precinct in said district at least four (4) weeks before the date of said election and by the publication thereof for the same length of time in some newspaper published in each county in which the district or any part thereof is located. Such notice must specify the time and place of holding such election.
[42-5263, added 1995, ch. 290, sec. 1, p. 1008.]
An election on a dissolution petition shall be held in all respects as near as practicable in conformity with the provisions of sections 42-5211 through 42-5213, Idaho Code. Those district members who are qualified to vote pursuant to section 42-5210(1), Idaho Code, shall be entitled to vote in the dissolution election. Upon the ballots used at such elections shall be written or printed "For Dissolution–Yes" and "For Dissolution–No," depending upon the nature of the proposal to be voted upon. Each member qualified to vote in the election shall cast a number of votes in proportion to that user’s cubic feet per second of ground water rights.
[42-5264, added 1995, ch. 290, sec. 1, p. 1008.]
On the first Monday after any such election the board of directors of the district shall meet at its usual place of meeting to canvass the returns, and when they shall have declared the result the secretary shall make full entry in his record.
[42-5265, added 1995, ch. 290, sec. 1, p. 1009.]
Immediately after such election, in case the proposal has carried by a vote of members representing a majority of the ground water rights in the district, measured by cubic feet per second, the board shall file in the district court of the county in which the district’s office is situated a petition praying in effect that the proceedings for the dissolution of the district be examined, approved and confirmed by the court. The petition shall set forth a full description of the lands formerly embraced within the district which is affected by the proceedings for the dissolution of such district, shall set forth generally the proceedings taken with reference to the petition and the election specified in the preceding sections of this chapter, and shall set forth fully every item of legal and enforceable indebtedness of the district with the name and residence of the holder thereof so far as known to the district secretary. In case any items of indebtedness are in the hands of unknown owners, they shall be so listed.
[42-5266, added 1995, ch. 290, sec. 1, p. 1009.]
Dissolution proceedings shall be in the nature of a suit to quiet title with respect to so much of the land and/or facilities within the district as is affected by the proposed dissolution. In such proceedings the board shall be the parties plaintiff and the holders of any obligations of the district, including obligations which are or might become liens against any of the lands, are parties defendant. The provisions of section 5-326, Idaho Code, so far as it can be made applicable, shall govern generally the force and effect of the decree; provided, that the petition may be in form against all persons having interest in or claim against the district, without naming them, and the summons, directed in the same way, and setting forth briefly the purposes of the petition, shall be by publication in the first instance or order of the court or a judge thereof and service on all parties interested, whether unknown owners, heirs, devisees, claimants or otherwise, shall be deemed complete at the time prescribed by the order for publication; and, unless answer be made by anyone interested in or making claim against said district default may be entered.
[42-5267, added 1995, ch. 290, sec. 1, p. 1009.]
The court or judge shall set a day for the hearing of such petition and if it appears to the court from the proof that there is no such outstanding indebtedness of such district, or in case there is any such indebtedness outstanding that the holders thereof have filed no objections to the proceedings, or have filed their consent thereto, then the court shall enter its decree confirming the said proceedings, or may hear and determine and make decree as to any controversy. The election authorized by the preceding sections of this chapter shall have no force or effect to dissolve any district until confirmed by the decree of court as herein set forth.
[42-5268, added 1995, ch. 290, sec. 1, p. 1009.]
(1) A ground water district may be dissolved without the holding of the election provided for in this chapter upon complaint or petition of parties holding and owning fifty percent (50%) or more, measured on the basis of cubic feet per second, of all the ground water rights within the district.
(2) It must be made to appear to the satisfaction of the court, by such complaint or petition, that any one (1) or more of the following conditions exist in or as to said district:
(a) The district has been abandoned, or for two (2) or more years last past has ceased to function, and there is little or no probability that it ever will or can function in the future;
(b) No useful purpose exists for the further continuance of the organization of the district; or
(c) There are insufficient members to pay for the costs of operating the district.
[42-5269, added 1995, ch. 290, sec. 1, p. 1010.]
In such petition the petitioners or complainants shall be named as plaintiffs and the ground water district, and its directors, if any there are, and all persons having interest in or claim against the district, without naming them, shall be defendants. In the course of the proceedings of said case, and at any time before the final hearing thereof, any person interested may join in said case as a party plaintiff or as a party defendant, or any party interested may intervene in said case without order of the court.
[42-5270, added 1995, ch. 290, sec. 1, p. 1010.]
In the exercise of the jurisdiction given it by this act, the court shall have the power to appoint such referee, master, auditor, or receiver as may be considered necessary or proper to marshal the assets, and protect or preserve them, or ascertain the true condition of the district. After due hearing and consideration of the evidence submitted, the court shall enter a decree establishing the legal and equitable rights, interests and priorities of all parties and claimants, and may decree and direct the sale of all or any part of the properties of the district, whether real, personal or mixed, and direct the disbursement and application of the proceeds and the payment of the costs of the proceeding, and may dissolve the district, or may approve and confirm any settlement or agreement of settlement made between the parties interested in such district, if a settlement is agreed upon by them, or may direct the payment of the indebtedness of the district in the order of priority determined and established by the decree, through assessments made as in the case of the dissolution of villages, or may grant such other or further relief as may be equitable or proper on the premises.
[42-5271, added 1995, ch. 290, sec. 1, p. 1010.]
Each party to any proceeding for dissolution of a district under this act shall have the right of appeal as in other civil cases.
[42-5272, added 1995, ch. 290, sec. 1, p. 1011.]
Whenever the boards of directors of any two (2) or more ground water districts which together form a contiguous area determine that it is in the best interests of their respective districts that the districts be consolidated into a single ground water district and wish to proceed toward consolidation, the following procedures shall be followed:
(1) Each board shall petition its respective county commission in the counties identified by reference to section 42-5203, Idaho Code, for an order for an election to vote upon the question of such consolidation, which petition shall state in detail the terms upon which such consolidation is proposed to be made, and also shall transmit a copy of the petition to the department of water resources.
(2) Upon receiving the petitions, the department shall investigate questions affecting such proposed consolidation, and it shall make a report of the result of such investigations to each county commission with whom the petitions were filed not more than ninety (90) days after the department receives such petitions.
(3) After receiving the department’s report, each county commission, if it deems it advisable, shall make an order fixing the time for an election in the districts to vote upon the question of proposed consolidation, which time shall be at the first available date in accordance with section 34-106, Idaho Code. Notice of the election shall be published as required for notice of election in section 42-5209, Idaho Code, and the boards of directors shall make all necessary arrangements for such election in their respective districts as provided in this title for other elections. The ballots shall be substantially as follows: "Consolidation–Yes." "Consolidation–No."
(4) The boards of directors shall canvass the returns of the election as provided in case of usual ground water district elections, and shall immediately thereafter transmit, by messenger or registered mail, certified abstracts of the result of said election in their respective districts to the clerk of the county commission. Within ten (10) days after such returns are received by the clerk, the county commission shall meet and canvass the same.
(5) If it appears that a majority of all the votes cast in each of said districts is "Consolidation–Yes." said board shall make an order, and enter the same of record in its minutes, establishing said consolidated district, giving its boundaries and designation, and in detail the terms under which the consolidation has been effected, and dividing said consolidated districts into three (3) divisions, and shall appoint some person qualified under this title, to act as director for each of said divisions of said district until the next general election for the election of officers, when a board of directors shall be elected as provided in section 42-5218, Idaho Code; provided however, that the organization of such district shall not take effect until the first Tuesday of the January following said order of its establishment. If the date provided by law for the election of directors shall come between the date of said order of the county commission and the first Tuesday of January, then in making such order the board shall designate the board of directors of one (1) of the consolidated districts as a board to take charge of such election, and in that case a director shall be elected for each such division of the consolidated district, and no appointment of directors shall be made by the county commission.
(6) If, however, upon such canvass by the county commission, it appears that a majority of the votes cast in any district thus proposed to be consolidated is "Consolidation–No," then a record of that fact shall be entered in the same minutes of the county commission, and all the proceedings had under the preceding sections of this chapter shall be void.
[42-5273, added 1995, ch. 290, sec. 1, p. 1011.]
In those cases where the cumulative total ground water diversions (excluding diversions under domestic and stockwater rights) in one (1) district are less than one-tenth (1/10) of such diversions in the larger district, and the boards of directors deem it for the best interests of the respective districts that the two (2) districts be consolidated into a single district, such boards may seek to consolidate according to the following procedure as an alternative to that described in section 42-5273, Idaho Code:
(1) The boards may propose a contract between them setting forth the terms and conditions of consolidating the district having the smaller ground water diversions into the other district, with the name and officers of the district having the larger ground water diversions still retained.
(2) Once both boards have approved the contract, it shall be submitted for approval by the members of the district having the smaller ground water diversions, together with the question of whether the two (2) districts shall be consolidated under the contract’s terms, at a special election held for that purpose in such district. Notice of the election shall be published as required for notices of election for indebtedness. At the election should two-thirds (2/3) of the electors voting, vote in favor of the contract and the consolidation of the districts, the board of directors of the district having the smaller ground water diversions shall petition the board of directors of the district having the larger ground water diversions, which notice shall be published in a newspaper published within the county wherein the office of the board of directors of the district having the larger ground water diversions is situated, for such length of time and covering the same matters as required by a petition to annex land and/or facilities into a district.
(3) The law applicable to the annexation of land into a district after the petition is filed and notice given, shall apply to the consolidation, including an annexation of a smaller district into a larger district.
(4) After the board of directors of the district having the larger ground water diversions has approved the resolution or other decision including within its boundaries the district having the smaller ground water diversions, the board shall file a petition in the district court within the county wherein the principal office of its district is situated, asking for an approval and confirmation of the proceedings thereunder, and the same procedure shall be followed as provided in sections 43-406 through 43-408, Idaho Code, with reference to the confirmation of the proceedings within irrigation districts. In such petition the prayer shall be that the proceedings, together with the contract, may be examined and approved by the court; that after the confirmation of said proceedings the order of the board of directors admitting the smaller district into the district having the larger ground water diversions, containing a description of all the land properly certified by the secretary of the district, shall be filed for record in the office of the recorder of both counties with which the petition was filed.
[42-5274, added 1995, ch. 290, sec. 1, p. 1012.]
Any irrigation district organized and operating pursuant to title 43, Idaho Code, may exercise the authorities provided under this chapter to the extent doing so does not conflict with any provision of title 43, Idaho Code.
[42-5275, added 1995, ch. 290, sec. 1, p. 1013.]
Where the water supply for lands is ground water provided by an irrigation district established under title 43, Idaho Code, and such lands are included in and subject to assessment by the irrigation district, such lands shall be included in a ground water district organized under the provisions of this chapter only if the board of the irrigation district serves notice in the same manner as that provided for nonirrigators in section 42-5214(2) and (3), Idaho Code.
[42-5276, added 1995, ch. 290, sec. 1, p. 1013.]
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