Idaho Administrative Code
Title IDAPA 37 - Water Resources, Department of
Rule 37.03.08 - WATER APPROPRIATION RULES
Section 37.03.08.040 - PROCESSING APPLICATIONS FOR PERMIT AND REPROCESSING PERMITS
Universal Citation: ID Admin Code 37.03.08.040
Current through August 31, 2023
01. General. (3-18-22)
a. Unprotested applications, whether for
unappropriated water or trust water, will be processed using the following
general steps: (3-18-22)
i. Advertisement and
protest period; (3-18-22)
ii.
Department review of applications and additional information, including
department field review if determined to be necessary by the Director;
(3-18-22)
iii. Fact finding hearing
if determined to be necessary by the Director; (3-18-22)
iv. Director's decision; (3-18-22)
v. Section
42-1701A, Idaho Code, hearing, if
requested; and (3-18-22)
vi.
Director's decision affirmed or modified. (3-18-22)
b. Protested applications, whether for
unappropriated water or trust water, will be processed using the following
general steps: (3-18-22)
i. Advertisement and
protest period; (3-18-22)
ii.
Hearing and/or conference; (3-18-22)
iii. Department review of applications,
hearing record and additional information including department field review if
determined to be necessary by the Director. (3-18-22)
iv. Proposed decision (unless waived by
parties); (3-18-22)
v. Briefing or
oral argument in accordance with the department's adopted Rules of Procedure.
(3-18-22)
vi. Director's decision
accepting or modifying the proposed decision. (3-18-22)
c. The Director's decision rejecting and
denying approval of an application for permit filed for diversion from a source
previously designated as a critical groundwater area or upon which a moratorium
has previously been entered may be issued without advertisement of the
application. (3-18-22)
d. An
applicant may request in writing that commencement of processing of his or her
application be delayed for a period not to exceed one (1) year or that
processing be interrupted for a period not to exceed six (6) months. The
Director at his discretion may approve the request unless he determines that
others will be injured by the delay or that the applicant seeks the delay for
the purpose of speculation, or that the public interest of the people of Idaho
will not be served by the delay. The Director may approve a request for delay
for a shorter period of time or upon conditions, and may renew the approval
upon written request. (3-18-22)
02. Public Notice Requirement. (3-18-22)
a. Applications for permit which
have not been advertised. (3-18-22)
i.
Advertisement of applications for permit proposing a rate of diversion of ten
(10) cfs or less or storage of one thousand (1000) AF or less shall comply with
Section 42-203A, Idaho Code. The first
required advertisement will be published on the first or third Thursday of a
month when published in daily newspapers and on the first or third publishing
day of the month for weekly newspapers. (3-18-22)
ii. Advertisement of applications for permit
in excess of the amounts in Subsection
040.02.a.i. shall comply
with Subsection 040.02.a.i. and shall also
be published in a newspaper or newspapers to achieve statewide circulation.
(3-18-22)
iii. Statewide
circulation with respect to Section
42-203A(2), Idaho
Code, shall be obtained by publication of a legal notice at least once each
week for two (2) successive weeks in a newspaper, as defined in Section
60-106, Idaho Code, of general
circulation in the county in which the point of diversion is located and by
publication of a legal notice at least once each week for two (2) successive
weeks in at least one (1) daily newspaper, as defined in Section
60-107, Idaho Code, published in
each of the department's four (4) administrative regions and determined by the
Director to be of general circulation within the department's region within
which it is published. The administrative regions of the department are
identified on Figure 2 in APPENDIX C (located at the end of this chapter). The
names of newspapers used for statewide publication are available from any
department office. (3-18-22)
b. Applications for permit which have been
advertised. (3-18-22)
i. Notice of
applications for permit for water from the Snake River between Swan Falls Dam
and Milner Dam or surface and groundwater tributaries to that reach of Snake
River which were advertised prior to July 1, 1985 and have been held without
final action by the department due to the Swan Falls controversy shall be
readvertised by the Director in accordance with Subsection
040.02.a. as appropriate to
allow opportunity for protests to be entered with respect to the public
interest criteria of Section
42-203C(2), Idaho
Code. (3-18-22)
ii. Applications
for permit from the Snake River or surface and groundwater sources upstream
from Milner Dam which have been held without action due to the Swan Falls
controversy may be processed without readvertisement. (3-18-22)
iii. The applicant shall pay the
readvertisement fee provided in Section
42-221F, Idaho Code, prior to the
readvertisement. (3-18-22)
iv.
Failure to pay the readvertising fee within thirty (30) days after the
applicant is notified to do so is cause for the Director to void the
application. (3-18-22)
c.
Notice of existing permits. (3-18-22)
i.
Existing permits appropriating water held in trust by the state of Idaho issued
prior to July 1, 1985, unless exempted by Subsection
040.02.c.ii. shall be
subject to the review requirements of Section
42-203D, Idaho Code, and shall be
readvertised in accordance with Subsection
040.02.a. as appropriate. The
review is limited to the criteria described in Section
42-203C(2), Idaho
Code. (3-18-22)
ii. Permits exempt
from the provisions of Section
42-203D, Idaho Code, include:
(3-18-22)
(1) Permits appropriating water not
held in trust by the state of Idaho; (3-18-22)
(2) Permits for DCMI uses, stockwater uses
and other essentially non-consumptive uses as determined by the Director; and
(3-18-22)
(3) Permits for which an
acceptable proof of beneficial use submittal was received by the department
prior to July 1, 1985, or permits for which an acceptable proof of beneficial
use was submitted after July 1, 1985, if evidence satisfactory to the Director
has been received to show that the permit was fully developed prior to July 1,
1985 to the extent claimed on the proof of beneficial use.
(3-18-22)
iii. Holders of
permits subject to the review requirement of Section
42-203D, Idaho Code, shall pay in
advance, upon the request of the Director, the readvertising fee required by
Section 42-221F, Idaho Code.
(3-18-22)
iv. Failure to pay the
readvertising fee within thirty (30) days after the applicant is notified to do
so is cause for the Director to cancel the permit.
(3-18-22)
03. Protests, Intervention, Hearings, and Appeals. (3-18-22)
a. Protests. (3-18-22)
i. Protests against the approval of an
application for permit or against a permit being reprocessed shall comply with
the requirements for pleadings as described in the department's adopted Rules
of Procedure. (3-18-22)
ii.
Protests against the approval of an application for permit or against a permit
being reprocessed will only be considered if received by the department after
receipt of the application by the department and prior to the expiration of the
protest period announced in the advertisement unless the protestant
successfully intervenes in the proceeding. (3-18-22)
iii. General statements of protest (blanket
protests) against appropriations for a particular class of use or from a
particular source of water will not be considered as valid protests by the
Director. (3-18-22)
b.
Intervention. Requests to intervene in a proceeding pending before the
department shall comply with the Department's adopted Rules of Procedure.
(3-18-22)
c. Hearings. Hearings
will be scheduled and held in accordance with the department's adopted Rules of
Procedure. (3-18-22)
d. Appeals.
Any final decision of the Director may be appealed in accordance with Section
42-1701A, Idaho Code.
(3-18-22)
04. Burden of Proof. (3-18-22)
a.
Burden of proof is divided into two (2) parts: first, the burden of coming
forward with evidence to present a prima facie case, and second, the ultimate
burden of persuasion. (3-18-22)
b.
The burden of coming forward with evidence is divided between the applicant and
the protestant as follows: (3-18-22)
i. The
applicant shall bear the initial burden of coming forward with evidence for the
evaluation of criteria (a) through (d) of Section
42-203A(5), Idaho
Code; (3-18-22)
ii. The applicant
shall bear the initial burden of coming forward with evidence for the
evaluation of criterion (e) of Section
42-203A(5), Idaho
Code, as to any factor affecting local public interest of which he is
knowledgeable or reasonably can be expected to be knowledgeable. The protestant
shall bear the initial burden of coming forward with evidence for those factors
relevant to criterion (e) of Section
42-203A(5), Idaho
Code, of which the protestant can reasonably be expected to be more cognizant
than the applicant. (3-18-22)
iii.
The protestant shall bear the initial burden of coming forward with evidence
for the evaluation of the public interest criteria of Section
42-203C(2), Idaho
Code, and of demonstrating a significant reduction, except that the applicant
shall provide details of the proposed design, construction, and operation of
the project and directly associated operations to allow the impact of the
project to be evaluated. (3-18-22)
c. The applicant has the ultimate burden of
persuasion for the criteria of Section
42-203A, Idaho Code, and the
protestant has the ultimate burden of persuasion for the criteria of Section
42-203C, Idaho Code.
(3-18-22)
d. For unprotested
applications or permits to be reprocessed, the Director will evaluate the
application, information submitted pursuant to Subsection
040.05.c. and information in
the files and records of the department, and the results of any studies the
department may conduct to determine compliance with the appropriate criteria.
(3-18-22)
e. In protested matters
the Director will take official notice of information as described in the
department's adopted Rules of Procedure, and will, prior to considering,
circulate to the parties information from department studies and field
examinations concerning the protested application or permit being reprocessed,
if such information has not otherwise been made a part of the hearing record.
(3-18-22)
05. Additional Information Requirements. (3-18-22)
a. For unprotested applications and permits
being reprocessed, the additional information required by Subsection
040.05.c. shall be submitted
within thirty (30) days after the Director notifies the applicant that the
application or permit is being reviewed for decision. The Director may extend
the time within which to submit the information upon request by the applicant
and upon a showing of good cause. Failure to submit the required information
within the time period allowed will be cause for the Director to void an
application or to advance the priority of a permit being reprocessed by the
number of days that the information submittal is late. The Director will
provide opportunity for hearing as provided in Section
42-1701A, Idaho Code.
(3-18-22)
b. For protested
applications or protested permits being reprocessed, the information required
by Subsection 040.05.c. may be requested by
the Director to be submitted within thirty (30) days after notification by the
Director, may be made a part of the record of the hearing held to consider the
protest, or may be made available in accordance with any pre-hearing discovery
procedures. Failure to submit the required information within the time period
allowed will be cause for the Director to void an application or to advance the
priority of a permit being reprocessed by the number of days that the
information submittal is late. (3-18-22)
c. The following information shall be
submitted for applications to appropriate unappropriated water or trust water
and for permits being reprocessed for trust water. The additional information
submittal requirements of this rule are waived for filings which seek to
appropriate five (5) cfs or less or storage of five hundred acre-feet (500 AF)
or less and for filings seeking reallocation of trust water which the Director
determines will reduce the flow of the Snake River measured at Murphy Gauge by
not more than two (2) acre-feet per day. For filings proposing irrigation as a
purpose of use, the additional information is required if more than two hundred
(200) acres will be irrigated. However, the Director may specifically request
submittal of any of the following information for any filing, as he determines
necessary. Information relative to the effect on existing water rights, Section
42-203A(5)(a),
Idaho Code, shall be submitted as follows: (3-18-22)
i. For applications appropriating springs or
surface streams with five (5) or fewer existing users, either the
identification number, or the name and address of the user, and the location of
the point of diversion and nature of use for each existing water right shall be
submitted. (3-18-22)
ii. For
applications appropriating groundwater, a plat shall be submitted locating the
proposed well relative to all existing wells and springs and permitted wells
within a one-half mile radius of the proposed well. (3-18-22)
iii. Information shall be submitted
concerning any design, construction, or operation techniques which will be
employed to eliminate or reduce the impact on other water rights.
(3-18-22)
d. Information
relative to sufficiency of water supply, Section
42-203A(5)(b),
Idaho Code, shall be submitted as follows: (3-18-22)
i. Information shall be submitted on the
water requirements of the proposed project, including, but not limited to, the
required diversion rate during the peak use period and the average use period,
the volume to be diverted per year, the period of year that water is required,
and the volume of water that will be consumptively used per year.
(3-18-22)
ii. Information shall be
submitted on the quantity of water available from the source applied for,
including, but not limited to, information concerning flow rates for surface
water sources available during periods of peak and average project water
demand, information concerning the properties of the aquifers that water is to
be taken from for groundwater sources, and information on other sources of
supply that may be used to supplement the applied for water source.
(3-18-22)
e. Information
relative to good faith, delay, or speculative purposes of the applicant,
Section 42-203A(5)(c),
Idaho Code, shall be submitted as follows: (3-18-22)
i. The applicant shall submit copies of
deeds, leases, easements or applications for rights-of-way from federal or
state agencies documenting a possessory interest in the lands necessary for all
project facilities and the place of use or if such interest can be obtained by
eminent domain proceedings the applicant must show that appropriate actions are
being taken to obtain the interest. Applicants for hydropower uses shall also
submit information required to demonstrate compliance with Sections
42-205 and
42-206, Idaho Code.
(3-18-22)
ii. The applicant shall
submit copies of applications for other needed permits, licenses and approvals,
and must keep the department apprised of the status of the applications and any
subsequent approvals or denials. (3-18-22)
f. Information Relative to Financial
Resources, Section
42-203A(5)(d),
Idaho Code, shall be submitted as follows: (3-18-22)
i. The applicant shall submit a current
financial statement certified to show the accuracy of the information contained
therein, or a financial commitment letter along with the financial statement of
the lender or other evidence to show that it is reasonably probable that
financing will be available to appropriate the water and apply it to the
beneficial use proposed. (3-18-22)
ii. The applicant shall submit plans and
specifications along with estimated construction costs for the project works.
The plans shall be definite enough to allow for determination of project
impacts and implications. (3-18-22)
g. Information Relative to Conflict with the
Local Public Interest, Section
42-203A(5)(e),
Idaho Code, shall be submitted as follows: The applicant shall seek comment and
shall submit all letters of comment on the effects of the construction and
operation of the proposed project from the governing body of the city and/or
county and tribal reservation within which the point of diversion and place of
use are located, the Idaho Department of Fish and Game, the Idaho Department of
Environmental Quality, and any irrigation district or canal company within
which the proposed project is located and from other entities as determined by
the Director. (3-18-22)
h. The
following information Relative to the Public Interest Criteria of Section
42-203C(2), Idaho
Code, shall be submitted by an applicant seeking reallocation of trust water
for a project which the Director determines will reduce the flow of the Snake
River by more than two (2) acre-feet per day. For filings proposing irrigation
as a purpose of use, the additional information is required if more than two
hundred (200) acres will be irrigated. The Director may request any or all of
the following information for any filing seeking the reallocation of trust
water. (3-18-22)
i. A project design and
estimate of cost of development shall be submitted. For applications
appropriating more than twenty-five (25) cfs, or ten thousand (10,000) AF of
storage, or generating more than five (5) megawatts, the information shall be
prepared and submitted by a qualified engineer licensed under the provisions of
Chapter 12, Title 54, Idaho Code, unless waived by the Director. The design
shall be definite enough to reflect the project's impacts and implications as
required in subsequent rules. (3-18-22)
ii. If the project proposes development for
irrigation purposes, information shall be submitted on crop rotation, including
acreages, for lands when newly developed. (3-18-22)
iii. Information shall be submitted
concerning the number and kinds of jobs that will be created or eliminated as a
direct result of project development including both the construction and
operating phases of the project. If jobs are seasonal, the estimated number of
months per year of employment shall be submitted. (3-18-22)
iv. For applications or permits being
reprocessed for more than twenty-five (25) cfs, or more than ten thousand
(10,000) AF of storage, or more than five (5) megawatts, information shall be
submitted concerning the changes to community services that will be required
during the construction and operation phases of the project including, but not
limited to, changes to schools, roads, housing, public utilities and public
health and safety facilities, if any. (3-18-22)
v. Information shall be submitted concerning
the source of energy for diverting and using water for the project, the
estimated instantaneous demand and total amount of energy that will be used,
the efficiency of use, and energy conservation methods. (3-18-22)
vi. Information shall be submitted concerning
the location, amount, and quality of return flow water, and any water
conservation features of the proposed project. (3-18-22)
vii. If the project proposes irrigation as a
use, information shall be submitted concerning the kinship, if any, of the
operator of the land to be irrigated by the project to the applicant, the
location and acreage of other irrigated lands owned, leased, or rented by the
applicant, the names, addresses and number of shares held by each shareholder
if the applicant is a corporation, evidence of tax-exempt status if a
corporation is so claiming, a soil survey prepared in accordance with the U.S.
Soil Conservation Service irrigatable land classification system, and a
schedule for bringing into production the project lands.
(3-18-22)
Disclaimer: These regulations may not be the most recent version. Idaho may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.