RAPID/Roadmap/19-ID-a

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RAPID

Regulatory and Permitting Information Desktop Toolkit

Idaho Water Access and Water Rights (19-ID-a)

The Idaho Department of Water Resources (IDWR) has the exclusive authority for regulation of appropriation of the public surface and ground waters of the state. IDWR uses a permit/license system for public access to un-appropriated waters and requires that the exchange of water rights also be reviewed and approved by the agency to ensure no injury to other water users. The use of geothermal resources does not require a permit to appropriate water in Idaho unless it will decrease groundwater in any aquifer or other groundwater source or measurably decrease groundwater available from prior water rights. However, the use of low temperature geothermal resources does require a permit to appropriate water. Idaho classifies a "geothermal resource" as groundwater having a temperature greater than 212 degrees Fahrenheit at the well bottom (I.C. 42-4002(c)). Water between 85 degrees Fahrenheit and 212 degrees Fahrenheit at the well bottom is classified as a "low temperature geothermal resource." The State of Idaho claims ownership of all geothermal resources underlying state and school trust lands. Idaho also claims the right to regulate development and use of all of the state's geothermal resources.


Water Access and Water Rights Process

19-ID-a.1 to 19-ID-a.2 - Will the Project Use Geothermal Resources

If the project will use geothermal resources, which Idaho defines under Idaho Code 42-4002(c), as groundwater having a temperature greater than 212 degrees Fahrenheit at the bottom of the well, the developer will not need to obtain a water right permit/license and should proceed to the regulations governing drilling in 5-ID-a.

Drilling and Well Development:
5-ID-a

19-ID-a.3 – Do You Have, or Will You Purchase an Existing Water Right

IDWR manages water in the State of Idaho via water allocation and distribution processes. If you do not have a water right, you must apply to IDWR for a permit to appropriate waters for beneficial use. If you already own a water right or plan on purchasing water rights from another user, IDWR requires that you file a change application to ensure that the change in use will not affect other water users in the state.

One thing to consider when planning water access for your geothermal project is the current moratoriums on water permits in Idaho. Currently, there are special moratoriums covering many areas in Idaho. There are also areas which have been designated as critical ground water areas or ground water management areas in which any new ground water development is strictly controlled. The developer should contact IDWR water right agents to determine if their application may be affected by one of these designated areas.

19-ID-a.4 to 19-ID-a.5 – Is a Change in Point of Diversion, Place of Use, Period of Use, or Nature of Use Needed for an Existing Water Right

If the proposed activity will require a change in the point of diversion, place or use, period of use, or nature of use of the water right, the developer will need to follow the change application process. A link to the appropriate flowchart can be followed below:

Change Application Process:
19-ID-b

19-ID-a.6 – Application for Permit to Appropriate (Form 202 03/10)

Before commencing construction, enlargement or extension of a ditch, canal, well, or other water distribution works the developer must apply to IDWR for a permit to appropriate such waters. The application must include:

  • The name and post office address of the applicant;
  • The source of the water supply;
  • The nature of the proposed use or uses and the period of the year during which the use will occur;
  • The location of the point of diversion and a description of the proposed ditch, channel, well or other work and the amount of water that the developer will divert and use;
  • The time required for the completion of the construction of the work and application of the water to the proposed use; and
  • A map of the proposed works for the diversion and application of the water to a beneficial use, showing the character, location and dimensions of the proposed reservoirs, dams, canals, ditches, pipelines, wells and all other works the developer proposes to use in the diversion of the water and the location of the lands the developer seeks to irrigate or location of place of other use.

If the appropriation involves more than 25 cubic feet per second of water or the development of more than 500 theoretical horsepower, or the impoundment of water in a reservoir with a storage capacity of more than 10,000 acre feet, IDWR may require the applicant to furnish a statement of the financial resources of the corporation, association, firm, or person making the application.

Both the Application for Permit to Appropriate and Instructions for Application for Permit to Appropriate are available on the IDWR webpage.

19-ID-a.7 to 19-ID-a.8 – Review Application Materials for Completeness

IDWR water agents will review the application or claim to make sure it contains all the necessary information before proceeding with the application procedures. In addition, IDWR will not process any applications that are not accompanied by the appropriate fee required by Idaho Code 42-221.

19-ID-a.9 to 19-ID-a.10 – Prepare and Post Public Notice

IDWR will prepare a legal notice about the application and certain claims to be published once a week for two consecutive weeks. The legal notices are published so that other water users have an opportunity to become aware of and protest or disagree with what is being requested in the application or claim. These legal notices appear in a newspaper printed in the county in which the point of diversion is located. The notices detail the important elements of the application or claim including priority date, water source, nature of water use, point of diversion, amount of water, period of use, etc.

19-ID-a.11 to 19-ID-a.12 – Were Any Protests Filed

If a protest is filed, IDWR will first give the protester and the applicant a chance to work out the problem. If the issue cannot be resolved, then either party can request that IDWR schedule a formal hearing. The hearing is a legal process where evidence can be presented and testimony taken by a hearing officer.

The following actions must be completed by a protester to any application for a permit to appropriate:

  • The protest must be RECEIVED by the Department no later than 10 days after publication of the second and last legal notice. The last date for protest is included in the legal notice.
  • The protest must include the name and address of the person making the protest and must be signed by the protestant, or the protestant's agent or attorney. The protest must be accompanied by a non-refundable $25 protest fee per application, required under state law.
  • The person protesting the application, called the protestant, needs to clearly describe why they object to the approval of the application. It is important that the objections be stated in clear, concise terms that accurately and clearly describe the nature of the objection and how the protestant will be injured if the application is approved.
  • The protestant is required to send a copy of the protest to the applicant.

After the hearing, the IDWR hearing officer will review all the evidence and testimony and will issue a recommended order, a document that details his recommended decision in the case. The record eventually will be reviewed by the IDWR director who will issue a final order, which sets out the formal IDWR decision. Depending on the specific application, the technical complexities involved, the number of protests, administrative appeals, court challenges, etc., it can take months, sometimes even years, to complete the process.

Applications against which protests have not been filed will be reviewed and analyzed by IDWR water rights managers who will make the decision. Provided there are no problems encountered with the application, this process typically takes 2-3 months from the time the application is filed.

19-ID-a.13 – Is the Proposed Appropriation for Some Useful or Beneficial Purpose

In accordance with Idaho Code 42-104, “the appropriation must be for some useful or beneficial purpose, and when the appropriator…ceases to use it for such purposes, the right ceases.” IDWR will not issue a permit to appropriate for a proposed use that is not a beneficial use of water.

19-ID-a.14 to 19-ID-a.15 – Permit to Appropriate

The developer should construct any fixtures necessary to apply the permitted amount of water to beneficial use under the conditions of the permit issued by IDWR. The permit will include a timetable for the completion of construction and application to beneficial use. This time may not exceed 5-years from the date of the approval.

19-ID-a.16 – Notify Developer 60 Days Before Date Set for Completion

IDWR will notify the developer 60-days prior to the date set for completion in the permit to appropriate of the impending deadline. The developer at this point may either file a request for an extension of time for completion or complete the required statement of completion to perfect the water right and receive a license to appropriate.

19-ID-a.17 to 19-ID-a.18 – Does Developer Need Additional Time for Completion

If the developer chooses to request an extension, they should file a Request for Extension of Time for Proof of Beneficial Use with the IDWR before the completion date in the initial permit. IDWR provides Instructions for Filling a Request for Extension of Time to Submit Proof of Beneficial Use on their webpage.

19-ID-a.19 to 19-ID-a.20 – Is there Good Cause for an Extension

The director of IDWR may extend the time for completion, for good cause, for periods of time as necessary for the specific project upon an application setting forth and supporting a showing that additional time is necessary due to the status of plans, authorization, construction fund appropriations, construction, or any arrangements which may require extension of the time period for completion.

19-ID-a.21 – Statement of Completion

Before the date set for completion of beneficial use under a permit to appropriate, the developer must submit a statement that he has used water under the applicable permit conditions and for beneficial use purposes. This Statement of Completion for Submitting Proof of Beneficial Use is required for all permit holders in accordance with Idaho Code 42-217. IDWR also provides Instructions for Filling Proof of Beneficial Use and Fee Schedule on their webpage.

The statement must include:

  • The name and post-office address of the permit holder;
  • The permit number;
  • A description of the extent of the use;
  • The source of the water used; and
  • Any other information required by the blank form furnished by the IDWR.

19-ID-a.22 to 19-ID-a.24 – Examine the Project for Beneficial Use

Upon receiving a statement of completion and the required filing fees, IDWR will examine the statement and the physical structures and beneficial use achieved by the permit holder. Examinations must be made by a certified water rights examiner in the State of Idaho. Permit holders who have submitted a statement of completion but have not had their project examined due to not paying the fee required for a Certified Water Rights Examiner will cause the director of IDWR to advance the date of priority of the appropriation 1-day for every day the fee is late, up to 1-year. After a year, the proof of beneficial use will be determined incomplete and the developer will lose their right to appropriate that water.

19-ID-a.25 – License to Appropriate

When IDWR is satisfied that the law has been fully complied with and that water is being used at the place claimed in the permit and for the purposes for which it was originally intended, it will issue a license confirming the use. The license can continue indefinitely, so long as the appropriator continues to apply the water to beneficial use.




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Water Access and Water Rights Issues Contact
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