T42CH2

Title 42 > T42CH2

Sections (62)

42-201

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-201. Water rights acquired under chapter — Illegal diversion and application of water — Uses for which water right not required — Exclusive authority of department. (1) All rights to divert and use the waters of this state for beneficial purposes shall hereafter be acquired and confirmed under the provisions of this chapter and not otherwise. And after the passage of this title, all the waters of this state shall be controlled and administered in the manner herein provided. Such appropriation shall be perfected only by means of the application, permit and license procedure as provided in this title; provided, however, that in the event an appropriation has been commenced by diversion and application to beneficial use prior to the effective date of this act, it may be perfected under such method of appropriation. (2) No person shall use the public waters of the state of Idaho except in accordance with the laws of the state of Idaho. No person shall divert any water from a natural watercourse or apply water to land without having obtained a valid water right to do so, or apply it to purposes for which no valid water right exists. (3) Notwithstanding the provisions of subsection (2) of this section or section 42-229 , Idaho Code, water may be diverted and used at any time, with or without a water right: (a) To extinguish an existing fire on private or public lands, structures, or equipment, or to prevent an existing fire from spreading to private or public lands, structures, or equipment endangered by an existing fire; (b) For forest practices as defined in section 38-1303 (1), Idaho Code, and forest dust abatement. Such forest practices and forest dust abatement use is limited to two-tenths (0.2) acre-feet per day from a single watercourse; or (c) For the immediate cleanup or removal of hazardous substances or petroleum, as defined in section 39-7203 , Idaho Code, that is part of an emergency response by a state emergency response team or local emergency response authority to a release, as defined in section 39-7103 , Idaho Code, to protect public health or the environment. The Idaho department of environmental quality, in coordination with the Idaho office of emergency management, shall report to the Idaho department of water resources within seventy-two (72) hours the location, need, and expected duration of the emergency response and shall consult the director of the Idaho department of water resources on maintaining delivery of existing water rights during cleanup or removal operations. (4) For purposes of subsection (3)(b) of this section, no person shall divert water from a canal or other irrigation facility while the water is lawfully diverted, captured, conveyed, used or otherwise physically controlled by the appropriator. (5) If water is to be diverted from a natural watercourse within a water d

42-202

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-202. Application to appropriate water — Contents — Filing fees — Disposition of fees — Record of receipts. (1) For the purpose of regulating the use of the public waters and of establishing by direct means the priority right to such use, any person, association or corporation hereafter intending to acquire the right to the beneficial use of the waters of any natural streams, springs or seepage waters, lakes or ground water, or other public waters in the state of Idaho, shall, before commencing of the construction, enlargement or extension of the ditch, canal, well, or other distributing works, or performing any work in connection with said construction or proposed appropriation or the diversion of any waters into a natural channel, make an application to the department of water resources for a permit to make such appropriation. Provided however, if the use of the diversion works or irrigation system is represented by shares of stock in a corporation or if such works or system is owned or managed by an irrigation district, no such application may be approved by the director of the department of water resources without the consent of such corporation or irrigation district. Such application must set forth: (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. (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 norma

42-202A

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

42-202B

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-202B. Definitions. Whenever used in this title, the term: (1) Consumptive use means that portion of the annual volume of water diverted under a water right that is transpired by growing vegetation, evaporated from soils, converted to nonrecoverable water vapor, incorporated into products, or otherwise does not return to the waters of the state. Consumptive use is not an element of a water right. Consumptive use does not include any water that falls as precipitation directly on the place of use. Precipitation shall not be considered to reduce the consumptive use of a water right. Authorized consumptive use means the maximum consumptive use that may be made of a water right. If the use of a water right is for irrigation, for example, the authorized consumptive use reflects irrigation of the most consumptive vegetation that may be grown at the place of use. Changes in consumptive use do not require a transfer pursuant to section 42-222 , Idaho Code. (2) Digital boundary means the boundary encompassing and defining an area consisting of or incorporating the place of use or permissible place of use for a water right prepared and maintained by the department of water resources using a geographic information system in conformance with the national standard for spatial data accuracy or succeeding standard. (3) Local public interest is defined as the interests that the people in the area directly affected by a proposed water use have in the effects of such use on the public water resource. (4) Municipality means a city incorporated under section 50-102 , Idaho Code, a county, or the state of Idaho acting through a department or institution. (5) Municipal provider means: (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) Municipal purposes refers to water for residential, commercial, industrial, irrigation of parks and open space, and related purposes, excluding use of water from geothermal sources for heating, which a municipal provider is entitled or obligated to supply to all those users within a service area, including those located outside the boundaries of a municipality served by a municipal provider. (7) Planning horizon refers to the length of time that the department determines is reasonable for a municipal provider to hold water rights to meet reaso

42-203A

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-203A. Notice upon receipt of application — Protest — Hearing and findings — Appeals. (1) Upon receipt of an application to appropriate the waters of this state, the department of water resources shall prepare a notice in such form as the department may prescribe, specifying: (a) the number of the application; (b) the date of filing thereof; (c) the name and post-office address of the applicant; (d) the source of the water supply; (e) the amount of water to be appropriated; (f) in general the nature of the proposed use; (g) the approximate location of the point of diversion; and (h) the point of use. The department shall also state in said notice that any protest against the approval of such application, in form prescribed by the department, shall be filed with the department within ten (10) days from the last date of publication of such notice. (2) The director of the department of water resources shall cause the notice to be published in a newspaper printed within the county wherein the point of diversion lies or, in the event no newspaper is printed in said county, then in a newspaper of general circulation therein. When the application proposes a diversion in excess of ten (10) c.f.s. or one thousand (1,000) acre feet, the director shall cause the notice to be published in a newspaper or newspapers sufficient to achieve statewide circulation. Any notice shall be published at least once each week for two (2) successive weeks. (3) The director of the department shall also cause notice of the application to be accessible from the department’s internet homepage beginning on or before the date the application is first published in the newspaper as described in subsection (2) of this section, and ending no sooner than the deadline for protesting the application, consistent with subsection (1) of this section. Notice accessible from the internet homepage may be represented by an abstract, summary, or other such representation that includes all the information required by subsection (1) of this section for notice of an application. The notice published in the newspaper pursuant to subsection (2) of this section shall be the official notice. Errors or omissions in the notices accessible from the internet homepage shall not invalidate the published notice. (4) Any person, firm, association or corporation concerned in any such application may, within the time allowed in the notice of application, file with said director of the department of water resources a written protest, together with the statutory filing fee as provided in section 42-221 , Idaho Code, against the approval of such application, which protest shall state the name and address of protestant and shall be signed by him or by his agent or attorney and shall clearly set forth his objections to the approval of such application. Hearing upon the pro

42-203B

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-203B. Authority to subordinate rights — Nature of subordinated water right and authority to establish a subordination condition — Authority to limit term of permit or license. (1) The legislature finds and declares that it is in the public interest to specifically implement the state’s power to regulate and limit the use of water for power purposes and to define the relationship between the state and the holder of a water right for power purposes to the extent such right exceeds an established minimum flow. The purposes of the trust established by subsections (2) and (3) of this section are to assure an adequate supply of water for all future beneficial uses and to clarify and protect the right of a user of water for power purposes subordinated by a permit issued after July 1, 1985, or by an agreement, to continue using the water pending approval of depletionary future beneficial uses. (2) A water right for power purposes which is defined by agreement with the state as unsubordinated to the extent of a minimum flow established by state action shall remain unsubordinated as defined by the agreement. Any portion of the water rights for power purposes in excess of the level so established shall be held in trust by the state of Idaho, by and through the governor, for the use and benefit of the user of the water for power purposes, and of the people of the state of Idaho; provided, however, that application of the provisions of this section to water rights for hydropower purposes on the Snake river or its tributaries downstream from Milner dam shall not place in trust any water from the Snake river or surface or ground water tributary to the Snake river upstream from Milner dam. For the purposes of the determination and administration of rights to the use of the waters of the Snake river or its tributaries downstream from Milner dam, no portion of the waters of the Snake river or surface or ground water tributary to the Snake river upstream from Milner dam shall be considered. The rights held in trust shall be subject to subordination to and depletion by future upstream beneficial users whose rights are acquired pursuant to state law, including compliance with the requirements of section 42-203C , Idaho Code. (3) Water rights for power purposes not defined by agreement with the state shall not be subject to depletion below any applicable minimum stream flow established by state action. Water rights for power purposes in excess of such minimum stream flow shall be held in trust by the state of Idaho, by and through the governor, for the use and benefit of the users of water for power purposes and of the people of the state of Idaho. The rights held in trust shall be subject to subordination to and depletion by future consumptive upstream beneficial users whose rights are acquired pursuant to state law, exclu

42-203C

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-203C. Hydropower water right — Criteria for reallocation — Weight — Burden of proof. (1) If an applicant intends to appropriate water which is held in trust by the state of Idaho pursuant to subsection (5) of section 42-203B , Idaho Code, the director shall consider, prior to approving the application, the criteria established in section 42-203A , Idaho Code, and whether the proposed use, individually or cumulatively with other existing uses, or uses reasonably likely to exist within twelve (12) months of the proposed use, would significantly reduce the amount of trust water available to the holder of the water right used for power production that is defined by agreement pursuant to subsection (5) of section 42-203B , Idaho Code, and, if so, whether the proposed reduction is in the public interest. (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. History: [42-203C, added 1985, ch. 17, sec. 3, p. 26; am. 1986, ch. 117, sec. 2, p. 311.]

42-203D

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-203D. Review of permits — Opportunity for hearing. (1) The director of the department of water resources shall review all permits issued prior to July 1, 1985, which propose to divert water held in trust by the state of Idaho pursuant to subsection (5) of section 42-203B , Idaho Code, except to the extent a permit has been put to beneficial use prior to July 1, 1985, to determine whether they comply with the provisions of section 42-203C , Idaho Code. If the department finds that the proposed use is allowed under section 42-203C , Idaho Code, then the department shall enter an order continuing the permit. If the department finds that the proposed use is not allowed under section 42-203C , Idaho Code, then the department shall either cancel the permit or impose the conditions required to bring the permit into compliance with section 42-203C , Idaho Code. (2) The department shall provide an opportunity for hearing in accordance with section 42-1701A , Idaho Code, and chapter 52, title 67 , Idaho Code, for each holder of a permit that is proposed either to be cancelled or made subject to new conditions. History: [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.]

42-204

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-204. Examination — Permit — Commencement of work — Extensions — Appeal. (1) On receipt of the application, which shall be of a form prescribed by the department of water resources, it shall be the duty of that department to make an endorsement thereon of the date of its receipt and to examine said application and ascertain if it sets forth all the facts necessary to show the location, nature and amount of the proposed use. If upon such examination the application is found defective, it shall be the duty of the department of water resources to return the same for correction or to correspond with the applicant to obtain the needed information or amendments. If the application is returned to the applicant or the department shall request additional information and the applicant fails to return the corrected application or to supply the needed information within thirty (30) days, the department may void the record of said application and notify the applicant of such action. If the corrected application is returned or the information is supplied after thirty (30) days, such corrected application shall be treated in all respects as a new application, and the priority of the right initiated shall be determined by the date of receipt in the office of the department of the corrected application or additional information; provided, that upon request, and good cause appearing therefor, the director of the department of water resources may grant an extension of time within which to return the corrected application or supply needed information. All applications that comply with the provisions of this chapter and with the regulations of the department of water resources shall be numbered in such manner as will aid in their identification, and it shall be the duty of the department to approve all applications made in proper form that contemplate the application of water to a beneficial use: provided, that the department may deny any such application, or may partially approve and grant a permit for a lesser quantity of water than applied for, or may grant a permit upon conditions as provided in this chapter. (2) The department of water resources shall issue a permit for any approved application, make a record of the approval and provide a copy of the permit to the applicant, who shall be authorized, on receipt thereof, to proceed with the construction of the necessary works for the diversion of such water and to take all steps required to apply the water to a beneficial use and perfect the proposed appropriation. (3) The provisions of this subsection shall not apply to permits held by municipal providers for reasonably anticipated future needs. For all other permits, the department shall require that actual construction work and application of the water to full beneficial use shall be complete within a period of five (

42-204A

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-204A. APPROPRIATION OF GROUND WATER FOR SUPPLEMENTAL IRRIGATION USE. (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 sec

42-205

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-205. Issuance of permit — Restrictions — Preference. (1) No permit shall be issued by the department of water resources of the state of Idaho, for the appropriation of water for power purposes, nor shall any such permit be assigned, transferred, mortgaged, sold or conveyed to any person, firm or corporation except in accordance with the provisions of this act. (2) Water cannot be appropriated for hydropower development uses within or using existing man-made irrigation facilities without the permission of the owner thereof. (3) When competing applications for a permit have been filed prior to the effective date of this act for the additional use for hydropower purposes that would utilize facilities that are owned or controlled by the holder of an existing water permit, license, decree, or established constitutional water usage, the director shall give preference to the application of the owner of the existing rights or his agent. History: [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.]

42-206

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-206. Residence a requisite for issuance. No permit to appropriate water for power purposes in the state of Idaho shall hereafter be granted to any person or association of persons not an actual bona fide resident or residents of the state of Idaho, nor to any corporation or partnership unless organized or qualified to do business in and under the laws of the state of Idaho. History: [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.]

42-207

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-207. Sale, transfer, assignment or mortgage of permit. Whenever the holder of a permit to appropriate water for power purposes within the state of Idaho, desires to sell, assign, transfer or mortgage such permit so held by him, he shall file with the director of the department of water resources a copy of the deed, bill of sale, assignment, mortgage or other document of transfer, together with such proof as the director of the department of water resources may require that the new owner, holder or assignee of such permit, or the mortgagee, or one or more of the trustees under any mortgage trust indenture, possesses the qualifications set forth in section 42-206 , and that such transfer is made in good faith, and not for purposes of speculation or delay; and the sale, transfer, assignment or mortgaging of any such permit except as herein provided shall be void, it being the express intention of the legislature to prohibit the transfer of permits to appropriate water for power purposes by mortgaging the same or otherwise, except in accordance with the provisions of this act. History: [42-207, added 1937, ch. 142, sec. 3, p. 233; am. 1947, ch. 66, sec. 3, p. 106.]

42-208

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-208. Cancellation or revocation for noncompliance. Every permit to appropriate water for power purposes hereafter issued by the director of the department of water resources shall have plainly printed thereon, that the same is issued subject to the provisions of this act and in the event of its sale, transfer, assignment or of its being mortgaged without a compliance with the provisions of this act, such permit shall be immediately canceled and revoked by the director of the department of water resources. History: [42-208, added 1937, ch. 142, sec. 4, p. 233; am. 1947, ch. 66, sec. 4, p. 106.]

42-209

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-209. Effect of illegal transfer. Every permit to appropriate water for power purposes that shall be sold, transferred, assigned or mortgaged in violation of the provisions of this act shall be immediately canceled, and the transfer thereof shall not be binding on the state of Idaho. History: [42-209, added 1937, ch. 142, sec. 5, p. 233; am. 1947, ch. 66, sec. 5, p. 106.]

42-210

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-210. Application of act. The provisions of this act shall not apply to any municipal corporations within the state. History: [42-210, added 1937, ch. 142, sec. 6, p. 233.]

42-211

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-211. Amended application or permit — Appeals. Whenever a permit has been issued pursuant to the provisions of this act, and the permit holder desires to change the place, period, or nature of the intended use, or make other substantial changes in the method of diversion or proposed use or uses of the water, he shall file an application for amendment upon forms to be furnished by the department of water resources together with the statutory fee for filing and recording same, and upon receipt thereof it shall be the duty of the department of water resources to examine same and if approval thereof would not result in the diversion and use of more water than originally permitted and if the rights of others will not be adversely affected thereby, the director of the department of water resources shall approve said application and return an approved copy to the permit holder. The director of the department of water resources shall give such notice to other affected water users as he deems appropriate and may grant the amendment, in whole or in part or upon conditions, or may deny same. Notice of partial approval or conditions or denial of an amendment shall be forwarded to the applicant by certified mail and shall be subject to judicial review as hereafter provided. The priority of the right established pursuant to a permit which has been amended under these provisions shall date from the date of the original application for permit, provided the permit holder has complied with other provisions of this act. In connection with any application on which permit has not been issued, amendments may be made by indorsement by the applicant or his agent on the original application, which indorsement shall be initialed and dated. If the amendment will result in the use of more water than originally asked, the priority of the right shall be changed to the date of said amendment. The applicant shall also be required to pay any additional filing fee as a result of an amendment of the rate of diversion or volume of storage requested in such amended application. If amendment is made after publication of notice of the original application, said notice shall be republished following amendment, upon payment by the applicant of the statutory fee for republication as in this act provided. The notice shall be published in the same manner as provided by section 42-203 , 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), Id

42-212

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-212. Diversion of private waters. The department of water resources is hereby prohibited from issuing or granting permits to divert or appropriate the waters of any lake not exceeding five (5) acres in surface area at highwater mark, pond, pool or spring in this state, which is located or situated wholly or entirely upon the lands of a person or corporation, except to the person or corporation owning said land, or with his or its written permission, executed and acknowledged as required for the conveyance of real estate. History: [(42-212) 1911, ch. 230, sec. 1, p. 782; reen. C.L., sec. 3255a; C.S., sec. 5572; I.C.A., sec. 41-206.]

42-213

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-213. Diversion of private waters — Applicants must show right of way. All applications to the department of water resources for permits to divert or appropriate the waters of any lake, pond, pool or spring shall state whether such lake, pond, pool or spring is wholly or entirely upon the land of any person or corporation other than the applicant, and, in the event that it is, such application shall state that the applicant has the written permission from such owner, executed and acknowledged as required by the provisions of the preceding section to divert or appropriate such water. History: [(42-213) 1911, ch. 230, sec. 2, p. 783; reen. C.L., sec. 3255b; C.S., sec. 5573; I.C.A., sec. 41-207.]

42-217

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-217. Proof of application to beneficial use. (1) On or before the date set for the beneficial use of waters appropriated under the provisions of this chapter, or the date set for submission of an incremental statement of completion showing proof of beneficial use, the permit holder shall submit a statement on a form furnished by the department of water resources that the permit holder has used such water for the beneficial purpose allowed by the permit. The statement shall include: (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. History: [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. 20

42-217a

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-217a. Certified water right examiner. The director shall adopt all necessary rules and regulations setting forth the procedures and requirements for qualification of licensed professional engineers or geologists to become certified water right examiners. An initial application fee of two hundred dollars ($200)shallbepaidbythoseapplyingforcertificationwithanannualrenewalfeeoffiftydollars($50.00). All certificates of appointment shall expire on March 31 of each year and thereafter are void unless renewed. The fees collected shall be transmitted to the state treasurer for deposit in the water administration account. Employees of the department shall be exempt from the requirements of this section. History: [42-217a, added 1987, ch. 97, sec. 1, p. 192.]

42-218

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-218. Proof of application to beneficial use — Extension of time. Whenever a less period of time than the maximum prescribed in section 42-204 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. History: [(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.]

42-218a

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-218a. Lapse of application for failure to request extension or submit proof of application to beneficial use — Notice of lapsing. (1) A permit upon which the proof of beneficial use, or an incremental statement of completion showing proof of beneficial use, has not been submitted, or a request for extension of time has not been received on or before the date set for such proof or incremental statement, shall lapse and be of no further force nor effect. For a permit held by a municipal provider for reasonably anticipated future needs, such lapse shall not apply to any portion of the permit that has been previously licensed or for which an incremental statement of completion showing proof of beneficial use has been submitted. Notice of said lapsing shall be sent by the department to the permit holder at the address of record by regular mail. (2) Within sixty (60) days after such notice of lapsing, the department may, upon a showing of reasonable cause, reinstate the permit with the priority date advanced a time equal to the number of days that said showing is subsequent to the date set for proof. (3) In connection with a proof of beneficial use statement submitted more than sixty (60) days after such notice of lapsing, the director shall require all of the following items to be submitted to the department: (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. History: [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.]

42-219

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-219. Issuance of license — Priority. (1) Upon receipt by the department of water resources of all the evidence in relation to such final proof, it shall be the duty of the department to carefully examine the same, and if the department is satisfied that the law has been fully complied with and that the water is being used at the place claimed and for the purpose for which it was originally intended, the department shall issue to such user or users a license corresponding to the beneficial use. Such license shall state the name and post office address of such user, the purpose for which such water is used and the quantity of water that may be used, which in no case shall be an amount in excess of the amount that has been beneficially applied. For permits held by a municipal provider for reasonably anticipated future needs, a license may be issued incrementally for an amount corresponding to the beneficial use demonstrated to the satisfaction of the department in each incremental statement of completion showing proof of beneficial use submitted pursuant to section 42-204 (4), Idaho Code, which amount, together with any previously licensed portion of said permit, shall not exceed the initial quantity authorized under the permit. The final incremental license at the end of the planning horizon shall be issued for an amount corresponding to the beneficial use. The director shall condition the license to prohibit any transfer of the place of use outside the service area, as defined in section 42-202B , Idaho Code, or to a new nature of use of amounts held for reasonably anticipated future needs together with such other conditions as the director may deem appropriate. (2) If such use is for irrigation, such license shall give a description, by legal subdivisions, of the land irrigated by such water, except that the general description of a place of use described in accordance with subsection (5) or (6) of this section may be described using a digital boundary, as defined in section 42-202B , Idaho Code. If the use is for municipal purposes, the license shall describe the service area as provided in section 42-202B (9), Idaho Code. (3) Such license shall bear the date of the application for, and the number of, the permit under which the works from which such water is taken were constructed, the date when proof of beneficial use of such water was made, and also the date of the priority of the right confirmed by such license. (4) The date of priority confirmed by the license shall be the date of the application for the permit for the construction of the works from which the water is taken, and to which the right relates, provided there has been no loss of priority under the provisions of this chapter. Whenever proof of the beneficial application of water shall be offered subsequent to the date stated in the perm

42-220

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-220. Effect of license. Water right licenses shall be binding upon the state as to the right of such licensee to use the amount of water mentioned therein and shall be prima facie evidence as to such right; and all rights to water confirmed under the provisions of this chapter, or by any decree of court, shall become appurtenant to, and shall pass with a conveyance of, the land for which the right of use is granted. The right to continue the beneficial use of such waters shall never be denied nor prevented for any cause other than the failure, on the part of the user or holder of such right, to pay the ordinary charges or assessments which may be made or levied to cover the expenses for the delivery or distribution of such water, or for other reasons set forth in this title: provided, that when water is used for irrigation, no such license or decree of the court allotting such water shall be issued confirming the right to the use of more than one (1) second foot of water for each fifty (50) acres of land so irrigated, unless it can be shown to the satisfaction of the department of water resources in granting such license, and to the court in making such decree, that a greater amount is necessary, and neither such licensee nor anyone claiming a right under such decree, shall at any time be entitled to the use of more water than can be beneficially applied on the lands for the benefit of which such right may have been confirmed, and the right to the use of such water confirmed by such license shall always be held subject to the local or community customs, rules and regulations which may be adopted from time to time by a majority of the users from a common source of supply, canal or lateral from which such water may be taken, when such rules or regulations have for their object the economical use of such water. History: [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.]

42-221

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-221. Fees of department. The department of water resources shall collect the following fees, which shall constitute a fund to pay for legal advertising, the publication of public notices and for investigations, research, and providing public data as required of the department in the performance of its statutory duties: A. For filing an application for a permit to appropriate the public waters of this state: 1. For a quantity of 0.2 c.f.s. or less or for a storage volume of 20 acre feet or less 2. For a quantity greater than 0.2 c.f.s. but not exceeding 1.0 c.f.s. or for a storage volume greater than 20 acre feet but not exceeding 100 acre feet 3. For a quantity greater than 1.0 c.f.s. but not exceeding 20 c.f.s., or for a storage volume greater than 100 acre feet but not exceeding 2,000 acre feet plus $40.00foreachadditionalc.f.s.orpartthereofor100acrefeetorpartthereofoverthefirst1.0c.f.s.or100acrefeet.4.Foraquantitygreaterthan20.0c.f.s.butnotexceeding100c.f.s.orforastoragevolumegreaterthan2,000acrefeetbutnotexceeding10,000acrefeetplus$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. 5. For a quantity greater than 100.0 c.f.s. but not exceeding 500.0 c.f.s., or for a storage volume greater than 10,000 acre feet but not exceeding 50,000 acre feet plus $10.00foreachadditionalc.f.s.orpartthereofor100acrefeetorpartthereofoverthefirst100c.f.s.or10,000acrefeet.6.Foraquantitygreaterthan500c.f.s.,orforastoragevolumegreaterthan50,000acrefeetplus$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 2. For filing a late claim to use a water right under section 42-243 , Idaho Code, where the date filed with the department of water resources or, the postmark if mailed to the department of water resources, is: i. After June 30, 1998 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 an

42-222

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-222. Change in point of diversion, place of use, period of use, or nature of use of water under established rights — Forfeiture and extension — Appeals. (1) Any person, entitled to the use of water whether represented by license issued by the department of water resources, by claims to water rights by reason of diversion and application to a beneficial use as filed under the provisions of this chapter, or by decree of the court, who shall desire to change the point of diversion, place of use, period of use or nature of use of all or part of the water, under the right shall first make application to the department of water resources for approval of such change. Such application shall be upon forms furnished by the department and shall describe the right licensed, claimed or decreed which is to be changed and the changes which are proposed, and shall be accompanied by the statutory filing fee as in this chapter provided. Upon receipt of such application it shall be the duty of the director of the department of water resources to examine same, obtain any consent required in section 42-108 , Idaho Code, and if otherwise proper to provide notice of the proposed change in a similar manner as applications under section 42-203A , Idaho Code. Such notice shall advise that anyone who desires to protest the proposed change shall file notice of protests with the department within ten (10) days of the last date of publication. Upon the receipt of any protest, accompanied by the statutory filing fee as provided in section 42-221 , Idaho Code, it shall be the duty of the director of the department of water resources to investigate the same and to conduct a hearing thereon. He shall also advise the watermaster of the district in which such water is used of the proposed change and the watermaster shall notify the director of the department of water resources of his recommendation on the application, and the director of the department of water resources shall not finally determine the action on the application for change until he has received from such watermaster his recommendation thereof, which action of the watermaster shall be received and considered as other evidence. For applications proposing to change only the point of diversion or place of use of a water right in a manner that will not change the effect on the source for the right and any other hydraulically-connected sources from the effect resulting under the right as previously approved, and that will not affect the rights of other water users, the director of the department of water resources shall give only such notice to other users as he deems appropriate. 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 mun

42-222A

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-222A. Temporary changes during drought conditions. (1) Upon declaration of a drought emergency for an area designated by the director of the department of water resources and approved by the governor of the state of Idaho, the director of the department of water resources is authorized to allow temporary changes to the use of water rights consisting of temporary transfers to change point of diversion, place and purpose of use of valid existing water rights or temporary exchanges of water authorized to be diverted under water rights, as provided in section 42-240 , Idaho Code, when the director of the department of water resources determines that such change(s) can be accomplished in accordance with the provisions of this section. (2) Application for a temporary change shall be made upon forms provided by the department of water resources and shall be accompanied by an application fee of fifty dollars ($50.00) per application. (3) The director of the department of water resources is not required to publish notice of the proposed change pursuant to the provisions of section 42-211 , 42-222 (1) or 42-240 , Idaho Code, and is not required to make findings as provided in said sections. A temporary change may be approved upon completion of the application form, payment of the filing fee and a determination by the director of the department of water resources that the proposed change can be properly administered and there is no information that the change will injure any other water right. If the water right to be changed is administered by a watermaster within a water district, the director of the department of water resources shall obtain and consider the recommendations of the watermaster before approving the temporary change application. (4) All temporary changes approved pursuant to the provisions of this section shall expire on the date shown in the approval which shall not be later than December 31 of the year in which the emergency transfer approval is made and thereafter the water right shall revert to the point of diversion and place of use existing prior to the temporary change. Nothing herein shall be construed as approval to authorize the construction of a new well as a new point of diversion. (5) The recipient of an approved temporary change issued pursuant to this section shall assume all risk that the diversion and use of the water may cause injury to other water rights, that the change constitutes an enlargement in use of the original right, that the use is not consistent with the conservation of water resources within the state of Idaho and that such use is not in the local public interest. Any applicant for a temporary change who is aggrieved by a denial by the director of the department of water resources of a temporary change pursuant to this section may request a hearing pursuant to the

42-222B

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-222B. Irrigation Corporation Boundary Adjustments. (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. History: [42-222B, added 2021, ch. 156, sec. 1, p. 432.]

42-223

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-223. Exceptions or defenses to forfeiture. A right to the use of water shall not be lost by forfeiture pursuant to the provisions of section 42-222 , Idaho Code, for a failure to apply the water to beneficial use under the conditions specified in any subsection of this section. The legislature does not intend through enactment of this section to diminish or impair any statutory or common law exception or defense to forfeiture existing on the date of enactment or amendment of this section, or to preclude judicial or administrative recognition of other exceptions or defenses to forfeiture recognized in Idaho case law or other provisions of the Idaho Code. No provision of this section shall be construed to imply that the legislature does not recognize the existence or validity of any common law exception or defense to forfeiture existing on the date of enactment or amendment of this section. (1) A water right appurtenant to land contracted in a federal cropland set-aside program shall not be lost or forfeited for nonuse during the contracted period. The running of any five (5) year period of nonuse for forfeiture of a water right shall be tolled during the time that the land remains in the cropland set-aside program. (2) A water right held by a municipal provider to meet reasonably anticipated future needs shall be deemed to constitute beneficial use, and such rights shall not be lost or forfeited for nonuse unless the planning horizon specified in the license has expired and the quantity of water authorized for use under the license is no longer needed to meet reasonably anticipated future needs. (3) A water right shall not be lost or forfeited by a failure to divert and apply the water to beneficial use if the water is not needed to maintain full beneficial use under the right because of land application of waste for disposal purposes including, but not limited to, discharge from dairy lagoons used in combination with or substituted for water diverted under the water right. (4) A water right shall not be lost or forfeited by a failure to divert and apply the water to beneficial use if the reason for the nonuse of the water is to comply with the provisions of a ground water management plan approved by the director of the department of water resources pursuant to section 42-233a or 42-233b , Idaho Code. (5) A water right shall not be lost or forfeited by a failure of the owner of the right to divert and apply the water to beneficial use while the water right is placed in the water supply bank or is retained in or rented from the water supply bank pursuant to sections 42-1761 through 42-1765A , Idaho Code, or while the water right is leased pursuant to sections 43-335 through 43-342 , Idaho Code, or sections 42-2501 through 42-2509 , Idaho Code, or while use of the water is made under any other provision o

42-224

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-224. forfeiture of stockwater rights. (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 mult

42-226

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-226. Ground waters are public waters. The traditional policy of the state of Idaho, requiring the water resources of this state to be devoted to beneficial use in reasonable amounts through appropriation, is affirmed with respect to the ground water resources of this state as said term is hereinafter defined and, while the doctrine of first in time is first in right is recognized, a reasonable exercise of this right shall not block full economic development of underground water resources. Prior appropriators of underground water shall be protected in the maintenance of reasonable ground water pumping levels as may be established by the director of the department of water resources as herein provided. In determining a reasonable ground water pumping level or levels, the director of the department of water resources shall consider and protect the thermal and/or artesian pressure values for low temperature geothermal resources and for geothermal resources to the extent that he determines such protection is in the public interest. All ground waters in this state are declared to be the property of the state, whose duty it shall be to supervise their appropriation and allotment to those diverting the same for beneficial use. This act shall not affect the rights to the use of ground water in this state acquired before its enactment. Any application for a water permit that seeks to transfer ground water outside the immediate ground water basin as defined by the director of the department of water resources for the purpose of irrigating five thousand (5,000) or more acres on a continuing basis or for a total volume in excess of ten thousand (10,000) acre feet per year, the application must first be approved by the director of the department of water resources and then by the Idaho legislature. Each shall give due consideration to the local economic and ecological impact of the project or development so proposed. History: [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.]

42-227

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-227. Drilling and use of wells for domestic purposes excepted. (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 within subdivisions, as defined in chapter 13, title 50 , Idaho Code, 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, an application for 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. History: [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.]

42-228

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-228. Drilling and use of wells for drainage or recovery purposes excepted. The excavation and opening of wells and the withdrawal of water therefrom for the sole purpose of improving or preserving the utility of land by draining them shall not be forbidden or governed by this act, and, likewise, there shall be excepted from the provisions of this act the excavation and opening of wells and withdrawal of water therefrom by canal companies, irrigation districts, and other owners of irrigation works for the sole purpose of recovering ground water resulting from irrigation under such irrigation works for further use on or drainage of lands to which the established water rights of the parties constructing the wells are appurtenant; providing that the drilling of such wells shall be subject to the licensing provisions of section 42-238 , Idaho Code. History: [42-228, added 1951, ch. 200, sec. 3, p. 423; am. 1970, ch. 187, sec. 2, p. 541.]

42-229

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-229. Methods of appropriation. The right to the use of ground water of this state may be acquired only by appropriation. Such appropriation may be perfected by means of the application permit and license procedure as provided in this act; provided, however, that in the event an appropriation has been commenced by diversion and application to beneficial use prior to the effective date of this act it may be perfected under such method of appropriation. All proceedings commenced prior to the effective date of this act for the acquisition of rights to the use of ground water under the provisions of sections 42-201 — 42-225 , Idaho Code, may be completed under the provisions of said sections and rights to the use of ground water may be thereby acquired. But the administration of all rights to the use of ground water, whenever or however acquired or to be acquired, shall, unless specifically excepted herefrom, be governed by the provisions of this act. History: [42-229, added 1951, ch. 200, sec. 4, p. 423; am. 1963, ch. 216, sec. 1, p. 623.]

42-230

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-230. Definitions. (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. History: [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.]

42-231

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-231. Duties of the director of the department of water resources. In addition to other duties prescribed by law, it shall be the duty of the director of the department of water resources to conduct investigations, surveys and studies relative to the extent, nature and location of the ground water resources of this state; and to this end, the director of the department of water resources may, on behalf of the state of Idaho enter into cooperative investigations, researches, and studies with any agency or department of the government of the United States, or any other state or public authority of this state, or private agencies or individuals. It shall likewise be the duty of the director of the department of water resources to control the appropriation and use of the ground water of this state as in this act provided and to do all things reasonably necessary or appropriate to protect the people of the state from depletion of ground water resources contrary to the public policy expressed in this act. History: [42-231, added 1951, ch. 200, sec. 6, p. 423; am. 1953, ch. 182, sec. 2, p. 277.]

42-232

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-232. Ground water recharge program — Negotiations with bureau of reclamation. The director of the department of water resources is hereby authorized and directed to institute negotiations with the United States bureau of reclamation and the senators and representatives representing the state of Idaho in the congress of the United States for purposes of examining the possibility of incorporating an artificial ground water recharge program or project into those water projects for withdrawal of waters from ground water basins in the Coltman area of Bonneville County, the Menan Buttes area in Madison county, or any other area contemplated by the bureau of reclamation, which have been authorized by congress as a part of the Salmon Falls Creek irrigation project located in Twin Falls county. History: [42-232, added 1978, ch. 366, sec. 3, p. 957.]

42-233

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-233. Low temperature geothermal resource. (1) The right to the use of low temperature geothermal resources of this state shall be acquired by appropriation, except as provided in subsection (2) of this section. The appropriation may be perfected by means of the application, permit and license procedure as provided in this chapter for ground water, provided that low temperature geothermal resources shall be utilized primarily for heat value and secondarily for the value as water. Usage of a low temperature geothermal resource primarily for reasons other than heat value is not a beneficial use of the resource, unless the director of the department of water resources exempts the proposed use. The director may exempt a proposed use if the director concludes: (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

42-233a

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-233a. Critical ground water area defined — Public hearings — Publication of notice — Granting or denial of application — Appeal. Critical ground water area is defined as any ground water basin, or designated part thereof, not having sufficient ground water to provide a reasonably safe supply for irrigation of cultivated lands, or other uses in the basin at the then-current rates of withdrawal, or rates of withdrawal projected by consideration of valid and outstanding applications and permits, as may be determined and designated, from time to time, by the director of the department of water resources. Upon the designation of a critical ground water area, it shall be the duty of the director of the department of water resources to conduct a public hearing in the area concerned to apprise the public of such designation and the reasons therefor. Notice of the hearing shall be published in two (2) consecutive weekly issues of a newspaper of general circulation in the area immediately prior to the date set for hearing. In the event an area has been designated as a critical ground water area and the director of the department of water resources desires to remove such designation or modify the boundaries thereof, he shall likewise conduct a public hearing following similar publication of notice prior to taking such action. When a critical ground water area is designated by the director of the department of water resources, or at any time thereafter during the existence of the designation, the director may approve a ground water management plan for the area. The ground water management plan shall provide for managing the effects of ground water withdrawals on the aquifer from which withdrawals are made and on any other hydraulically connected sources of water. In the event an application for permit is made with respect to an area that has not been designated as a critical ground water area, the director of the department of water resources shall forthwith issue a permit in accordance with the provisions of section 42-203A and section 42-204 , Idaho Code, provided said application otherwise meets the requirements of such sections; and further provided that if the applicant proposes to appropriate water from a ground water basin or basins in an amount which exceeds ten thousand (10,000) acre-feet per year either from a single or a combination of diversion points, and the director determines that the withdrawal of such amount will substantially and adversely affect existing pumping levels of appropriators pumping from such basin or basins, or will substantially and adversely affect the amount of water available for withdrawal from such basin or basins under existing water rights, the director may require that the applicant undertake such recharge of the ground water basin or basins as will offset that withdrawal a

42-233b

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-233b. Ground water management area. Ground water management area is defined as any ground water basin or designated part thereof which the director of the department of water resources has determined may be approaching the conditions of a critical ground water area. Upon designation of a ground water management area the director shall publish notice in two (2) consecutive weekly issues of a newspaper of general circulation in the area. When a ground water management area is designated by the director of the department of water resources, or at any time thereafter during the existence of the designation, the director may approve a ground water management plan for the area. The ground water management plan shall provide for managing the effects of ground water withdrawals on the aquifer from which withdrawals are made and on any other hydraulically connected sources of water. Applications for permits made within a ground water management area shall be approved by the director only after he has determined on an individual basis that sufficient water is available and that other prior water rights will not be injured. The director may require all water right holders within a designated water management area to report withdrawals of ground water and other necessary information for the purpose of assisting him in determining available ground water supplies and their usage. The director, upon determination that the ground water supply is insufficient to meet the demands of water rights within all or portions of a water management area, shall order those water right holders on a time priority basis, within the area determined by the director, to cease or reduce withdrawal of water until such time as the director determines there is sufficient ground water. Water right holders participating in an approved ground water management plan shall not be subject to administration on a time priority basis so long as they are in compliance with the ground water management plan. History: [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.]

42-233c

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-233c. Eastern snake plain aquifer AREA HAVING COMMON GROUND WATER SUPPLY. (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

42-234

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-234. Ground water recharge — Authority of department to grant permitS AND LICENSES. (1) It is the policy of the state of Idaho to promote and encourage the optimum development and augmentation of the water resources of this state. The legislature deems it essential, therefore, that water projects designed to advance this policy be given maximum support. The legislature finds that the use of water to recharge ground water basins in accordance with Idaho law and the state water plan may enhance the full realization of our water resource potential by furthering water conservation and increasing the water available for beneficial use. (2) The legislature hereby declares that the appropriation of water for purposes of ground water recharge shall constitute a beneficial use of water. The director of the department of water resources is authorized to issue permits and licenses for the purpose of ground water recharge, pursuant to the provisions of this chapter and in compliance with other applicable Idaho law and the state water plan. (3) The director of the department of water resources may regulate the amount of water which may be diverted for recharge purposes and may reduce such amount, even though there is sufficient water to supply the entire amount originally authorized by permit or license. To facilitate necessary financing of an aquifer recharge project, the director may fix a term of years in the permit or license during which the amount of water authorized to be diverted shall not be reduced by the director under the provisions of this subsection. (4) To ensure that other water rights are not injured by the operations of an aquifer recharge project, the director of the department of water resources shall have the authority to approve, disapprove or require alterations in the methods employed to achieve ground water recharge. In the event that the director determines that the methods of operation are adversely affecting existing water rights or are creating conditions adverse to the beneficial use of water under existing water rights, the director shall order the cessation of operations until such alterations as may be ordered by the director have been accomplished or such adverse effects otherwise have been corrected. (5) The legislature further recognizes that incidental ground water recharge benefits are often obtained from the diversion and use of water for various beneficial purposes. However, such incidental recharge may not be used as the basis for claim of a separate or expanded water right. Incidental recharge of aquifers which occurs as a result of water diversion and use that does not exceed the vested water right of water right holders is in the public interest. The values of such incidental recharge shall be considered in the management of the state’s water resources. History: [42-234,

42-235

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-235. Drilling permits. Prior to beginning construction of any well, or changing the construction of any well, the driller or well owner shall obtain a permit from the director of the department of water resources to protect the public health, safety and welfare and the environment, and to prevent the waste of water or mixture of water from different aquifers. There shall be a seventy-five dollar ($75.00)chargeforthepermitifthewellistobeusedfordomesticormonitoringpurposes.Ifthewellistobeusedforotherthandomesticormonitoringpurposes,thechargeforthepermitshallbetwohundreddollars($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)plusanadditionalfiftydollars($50.00) per well. A driller or well owner violating any provision of this section shall be guilty of a misdemeanor and shall also be subject to the enforcement procedures of section 42-1701B , Idaho Code. History: [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.]

42-237

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-237. Abandonment of water right — Change of point of diversion and place of use. The provisions relating to loss of water rights by nonuse and abandonment, as set forth in section 42-222 , 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. History: [42-237, added 1951, ch. 200, sec. 12(14), p. 423; am. 1953, ch. 182, sec. 7, p. 277.]

42-237a

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-237a. Powers of the director of the department of water resources. In the administration and enforcement of this act and in the effectuation of the policy of this state to conserve its ground water resources, the director of the department of water resources in his sole discretion, is empowered: a. To require all flowing wells to be so capped or equipped with valves that the flow of water can be completely stopped when the wells are not in use. b. To require both flowing and nonflowing wells to be so constructed and maintained as to prevent the waste of ground waters through leaky wells, casings, pipes, fittings, valves or pumps either above or below the land surface. c. To prescribe uniform scientific methods to determine water levels in and calculate waters withdrawn from wells. d. To go upon all lands, both public and private, for the purpose of inspecting wells, pumps, casings, pipes, and fittings, including wells used or claimed to be used for domestic purposes. e. To order the cessation of use of a well pending the correction of any defect that the director of the department of water resources has ordered corrected. f. To commence actions to enjoin the illegal opening or excavation of wells or withdrawal or use of water therefrom and to appear and become a party to any action or proceeding pending in any court or administrative agency when it appears to the director of the department of water resources that the determination of such action or proceeding might result in depletion of the ground water resources of the state contrary to the public policy expressed in this act. g. To supervise and control the exercise and administration of all rights to the use of ground waters and in the exercise of this discretionary power he may initiate administrative proceedings to prohibit or limit the withdrawal of water from any well during any period that he determines that water to fill any water right in said well is not there available. To assist the director of the department of water resources in the administration and enforcement of this act, and in making determinations upon which said orders shall be based, he may establish a ground water pumping level or levels in an area or areas having a common ground water supply as determined by him as hereinafter provided. Water in a well shall not be deemed available to fill a water right therein if withdrawal therefrom of the amount called for by such right would affect, contrary to the declared policy of this act, the present or future use of any prior surface or ground water right or result in the withdrawing of the ground water supply at a rate beyond the reasonably anticipated average rate of future natural recharge. However, the director may allow withdrawal at a rate exceeding the reasonably anticipated rate of future natural recharge if the director fin

42-237e

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-237e. Appeals from actions of the director of the department of water resources. Any person dissatisfied with any decision, determination, order or action of the director of the department of water resources made pursuant to this act may, if a hearing on the matter already has been held, seek judicial review pursuant to section 42-1701A (4), Idaho Code. If a hearing has not been held, any person aggrieved by the action of the director or watermaster may contest such action pursuant to section 42-1701A (3), Idaho Code. History: [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.]

42-237f

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-237f. Adjudication of water right. The provisions of sections 42-1401 — 42-1405 , Idaho Code, relative to adjudication of water rights shall be applicable to all water rights acquired under this act. History: [42-237f, 1951, ch. 200, sec. 20, as added by 1953, ch. 182, sec. 8, p. 277.]

42-237h

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-237h. Duties of the attorney general. It shall be the duty of the attorney general to institute and prosecute civil enforcement actions or injunctive actions as provided in this chapter and to prosecute actions or proceedings for the enforcement of any criminal provisions of this chapter. The attorney general may delegate the authority and duty under this section to prosecute criminal actions to the prosecuting attorney of the county in which such a criminal action may arise. History: [42-237h, added 1987, ch. 347, sec. 7, p. 747.]

42-238

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-238. Well drillers’ licenses and operator permits. (1) The director of the department of water resources is hereby vested with the duties relating to the licensing of well drillers and operators of well-drilling equipment as provided for in this act so as to protect the ground water resources against waste and contamination. Qualifications for well drillers and operators of well-drilling equipment shall be adopted by rule of the water resource board. (2) It shall be unlawful for any person to drill a well in Idaho, including wells excepted under sections 42-227 and 42-228 , Idaho Code, without first complying with the provisions of this chapter. It shall be unlawful for any person to abandon a well in Idaho without first obtaining a driller’s license or receiving a waiver of the license requirement from the director of the department of water resources. Authorization is required from the director prior to the abandonment and the person abandoning the well shall submit to the director a report describing the abandonment. (3) For the purpose of this act, a person shall be defined as any individual who drills or abandons any well for himself or another in this state; it shall also be defined as any firm, copartnership, corporation or association 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

42-238a

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-238a. Water administration account. There is hereby created in the state treasury a special account known as the water administration account. All fees and other moneys collected by the director of the department of water resources pursuant to sections 42-221 , 42-238 , 42-1713 , 42-3905 , 42-4003 , and 42-4011 , Idaho Code, shall be deposited in the water administration account. All moneys deposited in the water administration account are hereby appropriated to the director for the purpose of the administration of the provisions of title 42 , Idaho Code, and no moneys received in the account shall be disbursed by the state treasurer unless the voucher for such disbursement contains the certificate of the director that such voucher is for an expense incurred in the administration of the provisions of title 42 , Idaho Code. History: [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.]

42-239

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-239. Interpretation. The executive and judicial departments of the state shall construe the provisions of this act, wherever possible in harmony with the provisions of title 42 , Idaho Code, as amended; and nothing herein shall be construed contrary to or in conflict with the provisions of article 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. History: [42-239, added 1951, ch. 200, sec. 15(25), p. 423; am. 1953, ch. 182, sec. 11, p. 277.]

42-240

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-240. Application for right to exchange water — Filing fee — Notice — Protest — Hearing — Approval or denial — Appeal. (1) Any person holding a right for the use of surface water may make application to the director of the department of water resources to exchange water authorized to be diverted under the right with the same or a different source, or with water authorized to be diverted under one (1) or more other rights from the same source or another surface water source. If the application proposes an exchange with water under another water right, the application shall be accompanied by an agreement in writing subscribed by the person proposing the exchange and each person or organization owning rights to water with whom the exchange is proposed to be made. (2) The application shall be upon forms furnished by the department and shall contain such information as shall enable the director to determine the nature of the proposed exchange, and shall be accompanied by the statutory filing fee provided under section 42-221 , Idaho Code, for an application to change a vested water right. (3) Upon receipt of the application, it shall be the duty of the director to examine the same and, if otherwise proper, to cause notice of the proposed exchange to be published in the same manner as applications under section 42-203A , Idaho Code. The notice shall fully describe the nature of the proposed exchange of water and shall advise that anyone who wishes to protest shall file notice of protest in accordance with the provisions of section 42-203A , Idaho Code. (4) Upon the receipt of any protest it shall be the duty of the director to investigate the same and to conduct a hearing thereon. The director shall also advise the watermaster of the district in which the exchange is proposed, if a district exists, and the watermaster shall notify the director of the watermaster’s recommendations on the application. The director shall not take final action on the application or exchange until the director has received the recommendations of the watermaster, including recommended conditions necessary for the exchange of water to be properly administered and regulated. (5) The director shall examine all the evidence and available information and shall approve the exchange in whole, or in part, or upon conditions, provided no other water rights are injured thereby, the exchange does not constitute an enlargement in use of the original right or rights, the exchange is consistent with the conservation of water resources within the state of Idaho, the exchange is in the local public interest as defined in section 42-202B , Idaho Code, and the exchange will not adversely affect the local economy of the watershed or local area within which the source of water for the proposed use originates, in the case where the place of use is outs

42-241

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-241. Purpose. The future growth and development of the state is dependent upon effective management and efficient use of the state’s water resources. The purpose of this act is to provide adequate records of water right claims for efficient administration and to aid in the proper planning for the future use of the state’s water resources. History: [42-241, added 1978, ch. 345, sec. 4, p. 887.]

42-242

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-242. Definitions. Whenever used in this act, the terms: (1) Person shall mean an individual, partnership, association, public or private corporation, city or other municipality, county, state agency, or the state of Idaho, and the United States of America when claiming water rights established under the laws of the state of Idaho. (2) Notice in writing means a notice substantially in the following form: WATER RIGHTS NOTICE Every person, including but not limited to an individual, partnership, association, public or private corporation, city or other municipality, county, state agency or the state of Idaho, and the United States of America, when claiming water rights established under the laws of the state of Idaho, is hereby notified that all water rights or claimed water rights relating to the withdrawal or diversion of public surface or ground waters of the state for uses other than domestic purposes, except those water rights based upon authority of permit or license issued by the department of water resources or one of its predecessors or water rights which have previously been adjudicated by a court having jurisdiction of such matters, must be registered with the department of water resources, Boise, Idaho, not later than June 30, 1983. FAILURE TO REGISTER AS REQUIRED BY LAW WILL BE GROUNDS FOR INSTITUTING AN ACTION FOR FORFEITURE OF THE CLAIMED WATER RIGHT. For further information contact the Department of Water Resources, Boise, Idaho, for a copy of the act and an explanation thereof. History: [42-242, added 1978, ch. 345, sec. 5, p. 887; am. 1990, ch. 319, sec. 4, p. 873.]

42-243

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-243. Filing of claims of rights established by diversion and use — Form and content of claim. In order to allow for the recording of historic uses of the waters of this state, any person using or claiming rights to the use of water for uses other than domestic purposes, which have heretofore been established by diversion and application to a beneficial use shall file a claim of such right with the department of water resources not later than June 30, 1983, or if mailed, shall be postmarked not later than June 30, 1983. Such claim shall be in affidavit form on forms furnished by the department of water resources and shall set forth: a. The name and post-office address of the claimant. b. The quantity of water claimed to have been used. c. The source of the water supply. d. The location of the point or points of diversion. e. The nature of the use and the period during each year when the water is used for such purposes. f. The priority of the right claimed which shall be determined by the date when the water was first applied to a beneficial use provided there has been no period of abandonment or nonuse or forfeiture of the water right since that date. g. If water is claimed for irrigation, the legal description of the lands irrigated. h. Such other information as shall be required by the blank form furnished by the department. Such claim may be accompanied by maps showing the place of use, affidavits of witnesses familiar with the uses claimed, measurements of the water diverted and used, and such other information as the claimant may wish to submit. If the claim is filed with the department of water resources later than June 30, 1983, or if it is mailed to the department of water resources and the postmark is later than June 30, 1983, the claim shall be classified as follows: a. If the only use identified on the claim is domestic purposes, then the claim will be considered to be filed in a timely manner. b. If the use(s) identified on the claim includes other than domestic purposes, then the claim shall be considered to be a late claim, with a unique filing fee as set forth in section 42-221 , Idaho Code. This section shall not apply to any water rights which are based on the authority of a permit or license issued by the department of water resources or one of its predecessors or water rights which have previously been adjudicated by a court having jurisdiction of such matters. History: [(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.]

42-244

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-244. Recording of claims by department — Corrections. Upon receipt of any claim submitted under this chapter, together with the statutory filing fee as set forth in section 42-221 , Idaho Code, it shall be the duty of the department of water resources to file and to maintain a record of such claim, which shall be available for public inspection during all normal office hours. The department shall also cause a notice to be published once a week for two (2) consecutive weeks in a newspaper published and of general circulation in the county where the water is claimed to be diverted, if there is such a newspaper, otherwise in a newspaper of general circulation in the county, which said notice shall set forth such information as shall apprise the public of the nature of the claim which has been filed. At any time after the filing of a claim under the previous section, any person who disagrees that a right has been established as set forth in said claim may file an exception thereto in duplicate, in affidavit form, accompanied by such proof as said person deems appropriate. An exception filed shall be made a part of the file of the claim in the department of water resources and shall be considered the same as other evidence in said file. A copy of an exception filed shall be forwarded to the claimant by the department of water resources. Such claims may be corrected by the claimant only by filing of an amended claim in the same form as the original, which shall be recorded and numbered by the department the same as the original, and for which no additional filing fees shall be required. History: [(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.]

42-245

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-245. Failure to file claim waives and relinquishes right. Any person claiming the right to divert or withdraw and use waters of the state who fails to file a claim as provided in section 42-243 , Idaho Code, shall be conclusively deemed to have waived and relinquished any right, title or interest in said right. The provisions of this section shall not apply if a claim to the right is filed in a general water rights adjudication proceeding commenced under the provisions of chapter 14, title 42 , Idaho Code. History: [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.]

42-246

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-246. Filing of claim not deemed adjudication of right — Evidence. The filing of a claim does not constitute an adjudication of any claim to the right to use of waters as between the water use claimant and the state, or as between one (1) or more water use claimants and another or others. A statement of claim filed pursuant to section 42-243 , Idaho Code, shall be admissible in a general adjudication of water rights as evidence of the times of use and the quantity of water the claimant was withdrawing or diverting as of the year of the filing, if, but only if, the quantities of water in use and the time of use when a controversy is mooted are substantially in accord with the times of use and quantity of water claimed in the claim. A claim shall not otherwise be evidence of the priority of the claimed water right. History: [42-246, added 1978, ch. 345, sec. 9, p. 890.]

42-248

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-248. Notification of change in ownership of a water right or change of address of a water right owner — Notice of action affecting a water right. (1) All persons owning or claiming ownership of a right to use the water of this state, whether the right is represented by decree of the court, by claim to a water right filed with the department of water resources or by permit or license issued by the director of the department, 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)perrightshallaccompanyanoticeofchangeofwaterrightownership,providedthatthefeeshallbeonehundreddollars($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 t

42-250

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-250. Water conservation. (1) The legislature finds that voluntary water conservation practices and projects can advance the policy of the state of Idaho to promote and encourage the conservation, development, augmentation and utilization of the water resources of this state. The legislature deems it appropriate, therefore, to encourage and support voluntary water conservation practices and projects. (2) For purposes of this section, water conservation practice means any practice, improvement, project or management program, that results in the diversion of less than the authorized quantity of water while maintaining the full beneficial use(s) authorized by the water right. Water conservation practices include, but are not limited to, practices that result in reductions in consumptive use as defined in section 42-202B , Idaho Code, reductions in conveyance losses, and reductions in surface and seepage losses occurring at the place of use. (3) For the purposes of this section, conserved water means the quantity of water that is no longer diverted as a result of a water conservation practice. Conserved water shall not include quantities of water not diverted due to decreases in beneficial use. History: [42-250, added 2003, ch. 166, sec. 2, p. 471.]

42-251

TITLE 42 IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION CHAPTER 2 APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY 42-251. APPROPRIATION OF UNAPPROPRIATED FLOWS FOR LEMHI BASIN STREAM FLOW MAINTENANCE — LEGISLATIVE FINDINGS OF FACT CONCERNING HISTORIC USE OF HIGH FLOWS IN THE LEMHI RIVER BASIN AND NEED FOR PROTECTION AND EFFECTIVE MANAGEMENT OF SUCH USE. (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 St