Idaho § 42-1426 - Enlargements - Waiver of mandatory permit requirements

§ 42-1426. Enlargements - Waiver of mandatory permit requirements

(1) Legislative findings regarding enlargements:

(a) The legislature finds that several adjudications of water rights were commenced or will be commenced in the state of Idaho subsequent to the mandatory permit system provided in sections 42-201 and 42-229 , Idaho Code. These adjudications include the following, with associated commencement dates:

(i) Snake River basin adjudication, November 19, 1987;

(ii) Coeur d’Alene-Spokane River basin adjudication, November 12, 2008;

(iii) Palouse River basin adjudication, March 1, 2017;

(iv) Clark Fork-Pend Oreille River basin adjudication, June 15, 2021;

(v) Bear River basin adjudication, June 15, 2021; and

(vi) Kootenai River basin adjudication, not yet commenced.

Persons entitled to the use of water or owning any land to which water has been made appurtenant by decree, license or constitutional appropriation have, through water conservation and other means, enlarged the use of said water without increasing the rate of diversion and without complying with the mandatory permit system adopted by the legislature. Enlargements have been done with the knowledge of other water users, and water has been distributed based upon the right as enlarged. Junior water users made appropriations based upon a water system that reflected these enlarged uses. Thus, the legislature further finds and declares that it is in the public interest to waive the mandatory permit requirements for these enlargements in use prior to the commencement of a general adjudication, as long as such enlargements in use did not increase the rate of diversion of the original water right or exceed the rate of diversion for irrigation provided in section 42-202 , Idaho Code, after the enlargement of use, and the enlargement of use did not reduce the quantity of water available to other water rights existing on the date of the enlargement in use.

(b) The legislature further finds that it is in the public interest to waive certain statutory provisions for the appropriation of water that has been diverted and applied to beneficial use to ensure the economic and agricultural base in the state of Idaho as it existed on the date of the commencement of an adjudication and to maintain historic water use patterns existing on that date.

(2) The mandatory permit requirements of sections 42-201 and 42-229 , Idaho Code, are waived, and a new water right may be decreed for the enlarged use of the original water right based upon the diversion and application to beneficial use, with a priority date as of the date of completion of the enlargement of use for any enlargement occurring on or before the commencement date of an adjudication; provided however, that the rate of diversion of the original water right and the separate water right for the enlarged use, combined, shall not exceed the rate of diversion authorized for the original water right; and further provided, that the enlargement in use did not injure water rights existing on the date of the enlargement of use. An enlargement may be decreed if conditions directly related to the injury can be imposed on the original water right and the new water right that mitigate any injury to a water right existing on the date of enactment of this act. If injury to a water right later in time cannot be mitigated, then the new right for the enlarged use shall be advanced to a date one (1) day later than the priority date for the junior water right injured by the enlargement. It is further provided that any such enlargement of use allowed in a general adjudication shall not constitute an abandonment or forfeiture of the original water right to the extent of current use.

(3) The director shall publish a notice of enlargement of water right for all water rights recommended under this section. The notice shall contain a summary of the notice of claim and shall be published in the same manner as notices for applications to appropriate water in section 42-203A , Idaho Code. Any person who has filed an application for a water right prior to the enactment of this act or who has been issued a permit for a water right prior to commencement of an adjudication but who has not filed a claim in an adjudication shall have thirty (30) days from the date of last publication of the notice of enlargement of a water right under this section to file a petition with the department of water resources to assert any claimed injury from the enlargement. No appeal of the determination of the department shall be allowed. If the applicant or permittee is dissatisfied with the determination of the department on any claim of injury, the sole remedy is to intervene in the general adjudication and assert their claim of injury in an objection to the water right.

[42-1426, added 1994, ch. 454, sec. 32, p. 1475; am. 2000, ch. 311, sec. 1, p. 1048; am. 2020, ch. 50, sec. 3, p. 118; am. 2024, ch. 223, sec. 3, p. 791.]