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 outside of the watershed or local area where the source of water originates. Unless otherwise provided in a written agreement between the applicant and other right holders, the director shall condition approval of an exchange so that the exchange will not be operative during times when water is not available to satisfy the exchange, and that during these times the right to use water automatically reverts to the place of use authorized under the water rights. A copy of the approved application for exchange shall be provided to the applicant and the watermaster, and the applicant shall be authorized upon receipt thereof to make the exchange in accordance with the conditions set forth by the director. Should an approved exchange thereafter be discontinued, the applicant or the applicant’s successor in interest must so notify the director and the district watermaster.
(6) In the absence of a contrary agreement by the parties to an exchange, when the director has approved a right to exchange storage water for the natural flow of a stream or other water supply, the storage water shall be delivered in preference to any exchange rights subsequently approved using the same storage water right.
(7) Any person or persons feeling themselves aggrieved by a final order or final action of the director under this section may, if a protest was filed and hearing held thereon, seek judicial review pursuant to section 42-1701A(4), Idaho Code. If no protest was filed and no hearing held, the applicant may request a hearing pursuant to section 42-1701A(3), Idaho Code, for the purpose of contesting the action of the director and may seek judicial review of the final order of the director following the hearing pursuant to section 42-1701A(4), Idaho Code.
History:
[42-240, added 1998, ch. 424, sec. 2, p. 1340; am. 2003, ch. 298, sec. 4, p. 812.]
Structure Idaho Code
Title 42 - IRRIGATION AND DRAINAGE -- WATER RIGHTS AND RECLAMATION
Chapter 2 - APPROPRIATION OF WATER — PERMITS, CERTIFICATES, AND LICENSES — SURVEY
Section 42-202A - TEMPORARY APPROVAL — APPLICATION — CRITERIA — EXCEPTIONS.
Section 42-202B - DEFINITIONS.
Section 42-203A - NOTICE UPON RECEIPT OF APPLICATION — PROTEST — HEARING AND FINDINGS — APPEALS.
Section 42-203C - HYDROPOWER WATER RIGHT — CRITERIA FOR REALLOCATION — WEIGHT — BURDEN OF PROOF.
Section 42-203D - REVIEW OF PERMITS — OPPORTUNITY FOR HEARING.
Section 42-204 - EXAMINATION — PERMIT — COMMENCEMENT OF WORK — EXTENSIONS — APPEAL.
Section 42-205 - ISSUANCE OF PERMIT — RESTRICTIONS — PREFERENCE.
Section 42-206 - RESIDENCE A REQUISITE FOR ISSUANCE.
Section 42-207 - SALE, TRANSFER, ASSIGNMENT OR MORTGAGE OF PERMIT.
Section 42-208 - CANCELLATION OR REVOCATION FOR NONCOMPLIANCE.
Section 42-209 - EFFECT OF ILLEGAL TRANSFER.
Section 42-210 - APPLICATION OF ACT.
Section 42-211 - AMENDED APPLICATION OR PERMIT — APPEALS.
Section 42-212 - DIVERSION OF PRIVATE WATERS.
Section 42-213 - DIVERSION OF PRIVATE WATERS — APPLICANTS MUST SHOW RIGHT OF WAY.
Section 42-217 - PROOF OF APPLICATION TO BENEFICIAL USE.
Section 42-217a - CERTIFIED WATER RIGHT EXAMINER.
Section 42-218 - PROOF OF APPLICATION TO BENEFICIAL USE — EXTENSION OF TIME.
Section 42-219 - ISSUANCE OF LICENSE — PRIORITY.
Section 42-220 - EFFECT OF LICENSE.
Section 42-221 - FEES OF DEPARTMENT.
Section 42-222A - TEMPORARY CHANGES DURING DROUGHT CONDITIONS.
Section 42-222B - IRRIGATION CORPORATION BOUNDARY ADJUSTMENTS.
Section 42-223 - EXCEPTIONS OR DEFENSES TO FORFEITURE.
Section 42-224 - FORFEITURE OF STOCKWATER RIGHTS.
Section 42-226 - GROUND WATERS ARE PUBLIC WATERS.
Section 42-227 - DRILLING AND USE OF WELLS FOR DOMESTIC PURPOSES EXCEPTED.
Section 42-228 - DRILLING AND USE OF WELLS FOR DRAINAGE OR RECOVERY PURPOSES EXCEPTED.
Section 42-229 - METHODS OF APPROPRIATION.
Section 42-231 - DUTIES OF THE DIRECTOR OF THE DEPARTMENT OF WATER RESOURCES.
Section 42-232 - GROUND WATER RECHARGE PROGRAM — NEGOTIATIONS WITH BUREAU OF RECLAMATION.
Section 42-233 - LOW TEMPERATURE GEOTHERMAL RESOURCE.
Section 42-233b - GROUND WATER MANAGEMENT AREA.
Section 42-234 - GROUND WATER RECHARGE — AUTHORITY OF DEPARTMENT TO GRANT PERMITS AND LICENSES.
Section 42-235 - DRILLING PERMITS.
Section 42-237 - ABANDONMENT OF WATER RIGHT — CHANGE OF POINT OF DIVERSION AND PLACE OF USE.
Section 42-237a - POWERS OF THE DIRECTOR OF THE DEPARTMENT OF WATER RESOURCES.
Section 42-237e - APPEALS FROM ACTIONS OF THE DIRECTOR OF THE DEPARTMENT OF WATER RESOURCES.
Section 42-237f - ADJUDICATION OF WATER RIGHT.
Section 42-237h - DUTIES OF THE ATTORNEY GENERAL.
Section 42-238 - WELL DRILLERS’ LICENSES AND OPERATOR PERMITS.
Section 42-238a - WATER ADMINISTRATION ACCOUNT.
Section 42-239 - INTERPRETATION.
Section 42-244 - RECORDING OF CLAIMS BY DEPARTMENT — CORRECTIONS.
Section 42-245 - FAILURE TO FILE CLAIM WAIVES AND RELINQUISHES RIGHT.
Section 42-246 - FILING OF CLAIM NOT DEEMED ADJUDICATION OF RIGHT — EVIDENCE.