T58CH13
Title 58 > T58CH13
Sections (12)
58-1301
TITLE 58 PUBLIC LANDS CHAPTER 13 NAVIGATIONAL ENCROACHMENTS 58-1301. Encroachment on navigable lakes — Legislative intent. The legislature of the state of Idaho hereby declares that the public health, interest, safety and welfare requires that all encroachments upon, in or above the beds or waters of navigable lakes of the state be regulated in order that the protection of property, navigation, fish and wildlife habitat, aquatic life, recreation, aesthetic beauty and water quality be given due consideration and weighed against the navigational or economic necessity or justification for, or benefit to be derived from the proposed encroachment. No encroachment on, in or above the beds or waters of any navigable lake in the state shall hereafter be made unless approval therefor has been given as provided in this act. History: [(58-1301) I.C., sec. 58-142, as added by 1974, ch. 243, sec. 1, p. 1608; 1990, redesignated, ch. 362, sec. 1, p. 980.]
58-1302
TITLE 58 PUBLIC LANDS CHAPTER 13 NAVIGATIONAL ENCROACHMENTS 58-1302. Encroachment on navigable lakes — Definitions. (a) Navigable lake means any permanent body of relatively still or slack water, including man-made reservoirs, not privately owned and not a mere marsh or stream eddy, and capable of accommodating boats or canoes. This definition does not include man-made reservoirs where the jurisdiction thereof is asserted and exclusively assumed by a federal agency. (b) Beds of navigable lakes means the lands lying under or below the natural or ordinary high water mark of a navigable lake and, for purposes of this act only, the lands lying between the natural or ordinary high water mark and the artificial high water mark, if there be one. (c) Natural or ordinary high water mark means the high water elevation in a lake over a period of years, uninfluenced by man-made dams or works, at which elevation the water impresses a line on the soil by covering it for sufficient periods to deprive the soil of its vegetation and destroy its value for agricultural purposes. (d) Artificial high water mark means the high water elevation above the natural or ordinary high water mark resulting from construction of man-made dams or control works and impressing a new and higher vegetation line. (e) Low water mark means that line or elevation on the bed of the lake marked or located by the average low water elevations over a period of years and marks the point to which the riparian rights of adjoining landowners extend as a matter of right, in aid of their right to use the waters of the lake for purposes of navigation. (f) Riparian or littoral rights means only the rights of owners or lessees of land adjacent to navigable waters of the lake to maintain their adjacency to the lake and to make use of their rights as riparian or littoral owners or lessees in building or using aids to navigation but does not include any right to make any consumptive use of the waters of the lake. (g) Line of navigability means a line located at such distance waterward of the low water mark established by the length of existing legally permitted encroachments, water depths waterward of the low water mark, and by other relevant criteria determined by the board when a line has not already been established for the body of water in question. (h) Encroachments in aid of navigation means and includes docks, piers, floats, pilings, breakwaters, boat ramps, channels or basins, and other such aids to the navigability of the lake, on, in or above the beds or waters of a navigable lake. The term encroachments in aid of navigation may be used interchangeably herein with the term navigational encroachments. (i) Encroachments not in aid of navigation means and includes all other encroachments on, in or above the beds or waters of a navigable lake, including landfills or other structures not constructed primarily for use in aid of the navigability of the lake. The term encroachments not in aid of naviga
58-1303
TITLE 58 PUBLIC LANDS CHAPTER 13 NAVIGATIONAL ENCROACHMENTS 58-1303. Encroachment on navigable lakes — Powers of state land board. The board of land commissioners shall regulate, control and may permit encroachments in aid of navigation or not in aid of navigation on, in or above the beds or waters of navigable lakes as provided herein. History: [(58-1303) 1974, ch. 243, sec. 3, p. 1608; 1990, redesignated, ch. 362, sec. 3, p. 981.]
58-1304
TITLE 58 PUBLIC LANDS CHAPTER 13 NAVIGATIONAL ENCROACHMENTS 58-1304. Encroachment on navigable lakes — Rules and regulations. The board may adopt, revise and rescind such rules and regulations and issue such general orders as may be necessary to effectuate the purposes and policy of this chapter within the limitations and standards set forth in this chapter. Rules, regulations and orders adopted or issued pursuant to this section may include, but are not limited to, minimum standards to govern projects or activities for which a permit or permits have been received under this chapter and regulations governing procedures for processing applications and issuing permits under this chapter. Minimum standards shall not be adopted pursuant to this section until after they have been offered for review and comment to other state agencies having an interest in activities regulated under this chapter. Any standards, rules, regulations and general orders adopted or issued pursuant to this section shall be promulgated in accordance with the provisions of chapter 52, title 67 , Idaho Code, to the extent that the provisions of chapter 52, title 67 , Idaho Code, are not inconsistent herewith. History: [(58-1304) I.C., sec. 58-145, as added by 1974, ch. 243, sec. 4, p. 1608; 1990, redesignated, ch. 362, sec. 4, p. 981.]
58-1305
TITLE 58 PUBLIC LANDS CHAPTER 13 NAVIGATIONAL ENCROACHMENTS 58-1305. Noncommercial navigational encroachments — Procedures — Repairs — Forms. (a) Applications for construction or enlargement of navigational encroachments not extending beyond the line of navigability nor intended primarily for commercial or community use shall be processed by the board with a minimum of procedural requirements and shall not be denied nor appearance required except in the most unusual of circumstances or if the proposed encroachment infringes upon or it appears it may infringe upon the riparian or littoral rights of an adjacent property owner. (b) If the plans of the proposed encroachment indicate such infringement will or may occur, the board shall require that the applicant secure the consent of such adjacent owner or that he be given notice of the application by personal service or by certified or registered mail, return receipt requested, directed to him at his usual place of address, which, if not otherwise known, shall be the address shown on the records of the county treasurer or assessor, and such adjacent owner shall have ten (10) days from the date of personal service or receipt of certified or registered mail to file objection with the board. The application itself shall be deemed sufficient notice if the adjacent owner is the state of Idaho. (c) In the event objection to the application is filed by an adjacent owner or if the board deems it advisable because of the existence of unusual circumstances, the board shall fix a time, no later than sixty (60) days from the date of filing application, and a place, for affording the applicant and the adjacent owner filing objection to appear and present evidence in support of or in opposition to the application and within forty-five (45) days thereafter shall render a decision and give notice thereof to the parties concerned who may thereafter resort to appellate procedures prescribed in section 58-1306 , Idaho Code. (d) A permit shall not be required for repair of an existing navigational encroachment. (e) A permit shall not be required for replacement of an existing navigational encroachment if all the following conditions are met: (1) The existing encroachment is covered by a valid permit in good standing. (2) The existing encroachment meets the current requirements for new encroachments. (3) The location and orientation of the replacement do not change from the existing encroachment. (4) The replacement will be the exact same size or smaller and the same shape as the existing encroachment. (5) The replacement will not be located closer to adjacent littoral right lines than the existing encroachment. (f) Applications submitted under this section shall be upon forms to be furnished by the board and shall be accompanied by plans of the proposed navigational encroachment containing information required by section 58-1302 (k), Idaho Code, and such other information as the board may by rule require in conformance
58-1306
TITLE 58 PUBLIC LANDS CHAPTER 13 NAVIGATIONAL ENCROACHMENTS 58-1306. Nonnavigational or commercial navigational encroachments — Community navigational encroachments — Navigational encroachments beyond line of navigability — Application — Procedures — Publication of notice — Hearing — Appeals — Reconsideration — Criteria priority. (a) Applications for construction, enlargement or replacement of a nonnavigational encroachment, a commercial navigational encroachment, a community navigational encroachment, or for a navigational encroachment extending beyond the line of navigability shall be submitted upon forms to be furnished by the board and accompanied by plans of the proposed encroachment containing information required by section 58-1302 (k), Idaho Code, and such other information as the board may by rule require in conformance with the intent and purpose of this chapter. Applications for nonnavigational, community navigational, or commercial navigational encroachments must be submitted or approved by the riparian or littoral owner. (b) Within ten (10) days of receipt of an application submitted under subsection (a) of this section, the board shall cause to be published in a newspaper having general circulation in the county in which the encroachment is proposed, once a week for two (2) consecutive weeks, a notice advising of the application and describing the proposed encroachment and general location thereof. Applications for installation of buried or submerged water intake lines and utility lines shall be exempt from the newspaper publication process. The board may also furnish copies of the application and accompanying plans to other state agencies having an interest in the lake to determine the opinion of such state agencies as to the likely effect of the proposed encroachment upon adjacent property and lake value factors of navigation, fish and wildlife habitat, aquatic life, recreation, aesthetic beauty or water quality. Within thirty (30) days following receipt of such copy of the application and plans from the board, such other state agency shall notify the board of its opinion and recommendations, if any, for alternate plans determined by such agency to be economically feasible to accomplish the purpose of the proposed encroachment without adversely affecting unreasonably adjacent property or other lake value factors. (c) Any resident of the state of Idaho, or a nonresident owner or lessee of real property adjacent to the lake, or any state or federal agency may, within thirty (30) days of the first date of publication, file with the board an objection to the proposed encroachment and a request for a hearing on the application. If a hearing is requested, the same shall be held no later than ninety (90) days from the date of filing the application and notice of such hearing shall be given in the manner prescribed for publishing notice of application. The board may, in its discretion, within ten (10) days of filing the application, order
58-1307
TITLE 58 PUBLIC LANDS CHAPTER 13 NAVIGATIONAL ENCROACHMENTS 58-1307. Fees for specified permits — Costs of publication. Application for a permit for any noncommercial navigational encroachment shall be accompanied by a nonrefundable fee of up to five hundred dollars (1,000). Application for a permit for any other nonnavigational or commercial navigational encroachment or navigational encroachment which extends beyond the line of navigability shall be accompanied by a nonrefundable base fee, not to exceed three thousand five hundred dollars (3,500). In addition, the board shall charge the applicant with costs of publishing notice of the application which shall be refunded if such notice is not published. Any person or agency requesting a hearing upon the application shall deposit and pay to the board an amount sufficient to cover the cost of publishing notice of hearing. History: [(58-1307) 58-148, added 1974, ch. 243, sec. 7, p. 1608; 1990, am. and redesig., ch. 362, sec. 7, p. 985; am. 1992, ch. 225, sec. 1, p. 675; am. 2006, ch. 133, sec. 1, p. 388; am. 2010, ch. 155, sec. 1, p. 330.]
58-1308
TITLE 58 PUBLIC LANDS CHAPTER 13 NAVIGATIONAL ENCROACHMENTS 58-1308. Penalty for violation — Injunctive relief. (1) Any person who violates any of the provisions of this chapter or any valid and authorized regulation, rule, permit or order of the board, or, where notified by personal service or certified mail of such violation and thereafter fails to cease and desist therein or obey an order of the board within the time provided in such notification or within thirty (30) days of service of such notice if not otherwise provided, shall be subject to a civil penalty of not less than one hundred fifty dollars (2,500). Such civil penalty may be assessed by the board in conjunction with any other administrative action; provided, that no civil penalty shall be assessed unless the person was given notice and opportunity for a hearing pursuant to the administrative procedure act as set forth in chapter 52, title 67 , Idaho Code. The board shall have authority and it shall be its duty to seek injunctive relief from the appropriate district court to restrain any person from encroaching on, in or above the beds or waters of a navigable lake until approval therefor has been obtained as provided in this chapter. (2) In addition to the civil penalty set forth in subsection (1) of this section, any person who violates any of the provisions of this chapter or any valid and authorized regulation, rule, permit or order of the board, and the violation causes harm to water quality, fisheries, or other public trust values, shall be liable for a civil penalty not to exceed ten thousand dollars (1,000) for each day of a continuing violation, whichever is greater. The method of recovery of said penalty shall be by a civil enforcement action in the district court in and for the county where the violation occurred. Parties to an administrative enforcement action may agree to a civil penalty as provided in this subsection. (3) In addition to such civil penalties, any person who has been determined to have violated the provisions of this chapter or any valid and authorized regulation, rule, permit or order of the board, shall be liable for any expense incurred by the state in enforcing the chapter, or in enforcing or terminating any nuisance, source of environmental degradation, cause of sickness or health hazard. (4) No action taken pursuant to the provisions of this chapter or of any other environmental protection law shall relieve any person from any civil action and damages that may exist for injury or damage resulting from any violation of this chapter or any valid and authorized regulation, rule, permit or order of the board. History: [(58-1308) 58-149, as added by 1974, ch. 243, sec. 8, p. 1608; am. and redesig. 1990, ch. 362, sec. 8, p. 985; am. 2008, ch. 334, sec. 1, p. 919.]
58-1309
TITLE 58 PUBLIC LANDS CHAPTER 13 NAVIGATIONAL ENCROACHMENTS 58-1309. Restoration — Mitigation of damages. Any person legally found to be wrongfully encroaching on, in or above the beds or waters of a navigable lake shall, in lieu of or in addition to penalties provided herein, be directed by the court to restore the lake to as near its condition immediately prior to the unauthorized encroachment as possible or to effect such other measures as recommended by the board and ordered by the court toward mitigation of any damage caused by or resulting from such unlawful encroachment. History: [(58-1309) I.C., sec. 58-150, as added by 1974, ch. 243, sec. 9, p. 1608; 1990, redesignated, ch. 362, sec. 9, p. 985.]
58-1310
TITLE 58 PUBLIC LANDS CHAPTER 13 NAVIGATIONAL ENCROACHMENTS 58-1310. Existing rights unaffected. This act shall not operate or be so construed as to impair, diminish, control or divest any existing or vested water rights acquired under the laws of the state of Idaho or the United States, nor to interfere with the diversion of water from lakes under existing or vested water rights or water right permits for irrigation, domestic, commercial or other uses as recognized and provided for by Idaho water laws nor shall permit be required from a water user or his agent to clean, maintain or repair any existing diversion structure or works provided the board is notified of the work proposed to be done and the work is done as nearly as possible in a manner conforming to rules and regulations of the board for work done under permit nor shall this act be construed to impair existing encroachments in aid of navigation or any right heretofore granted an applicant by the director of the Idaho department of water resources or the director of the department of lands, nor shall this act be construed to impair existing nonnavigational encroachments not extending beyond the natural or ordinary high water mark if they have been in existence at least five (5) years prior to the effective date of this act nor any other existing nonnavigational encroachment unless action to abate the same by legal proceedings be instituted by the board within three (3) years of the effective date of this act. If abatement proceedings be instituted by the board, the court shall hear such evidence as would be pertinent upon an original application and shall consider also the length of time the encroachment has existed and its general acceptance. History: [(58-1310) I.C., sec. 58-151, as added by 1974, ch. 243, sec. 10, p. 1608; 1990, redesignated, ch. 362, sec. 10, p. 986.]
58-1311
TITLE 58 PUBLIC LANDS CHAPTER 13 NAVIGATIONAL ENCROACHMENTS 58-1311. Disclaimer of state property rights in private lands. While the state asserts the right to regulate and control all encroachments, navigational or nonnavigational, upon, in or above the beds or waters of navigable lakes as provided for in this act, nothing contained in this act shall be construed to vest in the state of Idaho any property right or claim of such right to any private lands lying above the natural or ordinary high water mark of any navigable lake. History: [(58-1311) I.C., sec. 58-152, as added by 1974, ch. 243, sec. 11, p. 1608; 1990, redesignated, ch. 362, sec. 11, p. 986.]
58-1312
TITLE 58 PUBLIC LANDS CHAPTER 13 NAVIGATIONAL ENCROACHMENTS 58-1312. Permitting of existing encroachments. (1) Unless otherwise prohibited, every person seeking a permit for a navigational or nonnavigational encroachment constructed prior to January 1, 1975, shall provide the board with substantive documentation of the age of the encroachment and documentation that the encroachment has not been modified since 1974. For purposes of this section, the phrase has not been modified means that the overall footprint of the encroachment on the lake bed has not been expanded in dimension or height or changed in orientation or location. Persons providing such documentation shall receive an encroachment permit and shall not be required to pay the application and publication fees established in this chapter. Such substantive documentation shall include but not be limited to dated aerial photographs, tax records, or other historical information deemed reliable by the board. (2) Every person seeking a permit for a navigational or nonnavigational encroachment constructed, replaced or modified on or after January 1, 1975, shall submit a permit application and enter the same permitting process as required for new encroachments. History: [(58-1312) 58-153, added 1974, ch. 243, sec. 12, p. 1608; 1990, am. & redesig., ch. 362, sec. 12, p. 986; am. 2006, ch. 135, sec. 1, p. 390; am. 2024, ch. 121, sec. 1, p. 507.]