T42CH14

Title 42 > T42CH14

Sections (37)

42-1401

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1401. Legislative intent. The legislature finds and declares that the state laws and procedures for the adjudication of rights to the use of water need to be modified: (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. History: [42-1401, added 1986, ch. 220, sec. 2, p. 560; am. 1994, ch. 454, sec. 1, p. 1445.]

42-1401A

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1401A. Definitions. 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. History: [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.]

42-1401B

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1401B. Role of the director in an adjudication. (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. History: [42-1401B, added 1994, ch. 454, sec. 3, p. 1446.]

42-1401C

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1401C. Role of state agencies other than the Idaho department of water resources in an adjudication. (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. History: [42-1401C, added 1994, ch. 454, sec. 4, p. 1447.]

42-1401D

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1401D. Jurisdictional limitation. Review of an agency action of the department of water resources, which is subject to judicial review or declaratory judgment under the provisions of chapter 52, title 67 , Idaho Code, shall not be heard in any water rights adjudication proceeding commenced under this chapter. Venue and jurisdiction over any such action pending on the effective date of this section, or initiated subsequent thereto, shall be in the district court as authorized under the provisions of section 67-5272 , Idaho Code, without regard to any other provision of law. History: [42-1401D, added 2001, ch. 31, sec. 2, p. 48.]

42-1402

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1402. Decreed rights appurtenant to land — Water rights established under federal law excepted. In allotting the waters of any water system by the district court according to the rights and priorities of those using such waters, such allotment shall be made to the use to which such water is beneficially applied, except where water rights established under federal law are involved, in which case the allotment shall be made in accordance with federal law. The right confirmed by such decree or allotment shall be appurtenant to and shall become a part of the land on which the water is used, and such right will pass with the conveyance of such land, and such decree shall describe the land to which such water shall become so appurtenant. The amount of water so allotted shall never be in excess of the amount actually used for beneficial purposes for which such right is claimed, or in the case of a water right established under federal law, in excess of that amount determined by federal law. History: [(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.]

42-1403

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1403. Certified copies of allotments. It shall be the duty of the clerk of the district court in each of the counties of this state to prepare at the expense of the county, and transmit without delay to the department of water resources by express or registered mail, a certified copy of the allotments of the various streams, made by the district court and now on file in the offices of the district court in the various counties of the state: provided, that said clerk may, in place of such transcript, transmit such original records of such decrees as are recorded in books kept for that purpose. Immediately upon receipt of said transcripts or said original records, it shall be the duty of the department to record them in its files, and to classify and arrange said decrees by placing all the rights to water of one stream and its tributaries together, and the department shall send to each watermaster a certified copy of the allotments made by the district court of all the streams within his district. And when an allotment of the waters of a stream shall be made by the district court, the clerk of such district court shall immediately prepare, at the expense of the county, and transmit to the department of water resources, a certified copy of the decree allotting such waters. The director may issue an abstract of decreed water right which shall describe the elements of a water right as contained in the water right decree. History: [(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.]

42-1404

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1404. Private actions for adjudication of water rights. (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

42-1405

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1405. General adjudication — Public interest. (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. History: [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.]

42-1406

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1406. General adjudication — Contents of petition. (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. History: [(42-1406) 1986, ch. 220, sec. 8, p. 566; am. and redesig. 1994, ch. 454, sec. 12, p. 1453.]

42-1406B

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1406B. Northern Idaho water rights adjudications — Commencement. (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 pr

42-1406C

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1406C. BEAR RIVER WATER RIGHTS ADJUDICATION — COMMENCEMENT. (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. History: [42-1406C, added 2020, ch. 50, sec. 1, p. 116.]

42-1406D

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1406D. KOOTENAI RIVER WATER RIGHTS ADJUDICATION — COMMENCEMENT. (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. History: [42-1406D, added 2024, ch. 223, sec. 1, p. 789.]

42-1407

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1407. General adjudication — Venue — Notice of filing — Commencement order. (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

42-1408

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1408. Service of notice of order commencing a general adjudication. (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 ex

42-1409

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1409. Notice of claim. (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 irrigati

42-1409A

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1409A. Amendment of notice of claims — Late notice of claims. (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. History: [42-1409A, added 1994, ch. 454, sec. 16, p. 1460.]

42-1410

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1410. Examination of water system and of claims. (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. History: [42-1410, added 1986, ch. 220, sec. 12, p. 572; am. 1994, ch. 454, sec. 17, p. 1461.]

42-1411

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1411. Report of the director. (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 administrat

42-1411A

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1411A. Service of notice of and determination of water rights established under federal law. (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 c

42-1412

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1412. Objections — Responses to objections — Hearing before district judge — Entry of final decree. (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 t

42-1413

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1413. Filing of final decree. (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. History: [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.]

42-1414

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1414. Fees for filing notice of claims with the director. (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. History: [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.

42-1415

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1415. Enforcement of filing fees. After filing of the director’s report in a general adjudication, the director may prohibit in accordance with chapter 3, title 42 , Idaho Code, the diversion and use of water in satisfaction of a right claimed or decreed in the adjudication upon the failure of the claimant to comply with the schedule for payment of variable fees as set forth in subsection (1) of section 42-1414 , Idaho Code. History: [42-1415, added 1986, ch. 220, sec. 16, p. 578; am. 1994, ch. 454, sec. 23, p. 1470.]

42-1416B

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1416B. Claim for expanded use in critical ground water area — Determination of water availability. (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 pur

42-1417

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1417. General adjudication — Interim administration of water rights. (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. History: [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.]

42-1418

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1418. Appeals. 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. History: [42-1418, added 1986, ch. 230, sec. 3, p. 626.]

42-1419

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1419. Entry of an order commencing a general adjudication on a special docket — Constructive notice — Filing of certified copy of order in other counties. (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. History: [42-1419, added 1986, ch. 220, sec. 19, p. 579.]

42-1420

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1420. Binding effect of decree — Exceptions. (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. History: [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.]

42-1421

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1421. Procedures for adjudication of unperfected water rights initiated under state law — Director’s jurisdiction. (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. History: [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.]

42-1422

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1422. Special master — Appointment — Powers and duties — Compensation — Disqualification — Review of special master’s report. (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. History: [42-1422, added 1986, ch. 230, sec. 5, p. 627; am. 1994, ch. 454, sec. 28, p. 1473.]

42-1423

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1423. Attorneys fees and costs against the state of Idaho, any state agency or any officer or employee. No judgment for costs or award of attorneys fees against the state of Idaho, any state agency, or any officer or employee of the state of Idaho shall be allowed in any water rights adjudication proceeding pursuant to this chapter. The state of Idaho expressly refuses to waive its sovereign immunity to the imposition of any judgment for costs or award of attorney fees. The state of Idaho, state administrative agency, or any officer or employee shall not be required to pay any fees other than those provided in section 42-1414 , Idaho Code, for appearing in a proceeding brought under this chapter or any appeal of a matter arising from such proceeding. History: [42-1423, added 1994, ch. 454, sec. 30, p. 1473.]

42-1424

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1424. Summary supplemental adjudication of water rights. (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, with

42-1425

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1425. Accomplished transfers. (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 ,

42-1426

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1426. Enlargements — Waiver of mandatory permit requirements. (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 d

42-1427

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1427. Descriptions of water rights — Reporting and decreeing elements of a decreed or licensed water right. (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. History: [42-1427, added 1994, ch. 454, sec. 33, p. 1476; am. 1994, ch. 455, sec. 6, p. 1489.]

42-1428

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 14 ADJUDICATION OF WATER RIGHTS 42-1428. Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act. History: [(42-1428) 1986, ch. 220, sec. 23, p. 582; am. and redesig. 1994, ch. 454, sec. 29, p. 1473.]