01.
Criteria
for Evaluating All Applications to Appropriate Water. The Director will
use the following criteria in evaluating whether an application to appropriate
unappropriated water or trust water should be approved, denied, approved for a
smaller amount of water or approved with conditions. (3-18-22)
a. Criteria for determining whether the
proposed use will reduce the quantity of water under existing water rights. A
proposed use will be determined to reduce the quantity of water under an
existing water right (i.e., injure another water right) if: (3-18-22)
i. The amount of water available under an
existing water right will be reduced below the amount recorded by permit,
license, decree or valid claim or the historical amount beneficially used by
the water right holder under such recorded rights, whichever is less.
(3-18-22)
ii. The holder of an
existing water right will be forced to an unreasonable effort or expense to
divert his existing water right. Protection of existing groundwater rights are
subject to reasonable pumping level provisions of Section
42-226, Idaho Code; or
(3-18-22)
iii. The quality of the
water available to the holder of an existing water right is made unusable for
the purposes of the existing user's right, and the water cannot be restored to
usable quality without unreasonable effort or expense. (3-18-22)
iv. An application that would otherwise be
denied because of injury to another water right may be approved upon conditions
which will mitigate losses of water to the holder of an existing water right,
as determined by the Director. (3-18-22)
v. The provisions of Subsection
045.01.a.v. are not intended
to require compensation or mitigation for loss of flow to holders of
subordinated hydropower rights or those from which trust water is reallocated.
(3-18-22)
b. Criteria for
determining whether the water supply is insufficient for the proposed use. The
water supply will be determined to be insufficient for the proposed use if
water is not available for an adequate time interval in quantities sufficient
to make the project economically feasible (direct benefits to applicant must
exceed direct costs to applicant), unless there are noneconomic factors that
justify application approval. In assessing such noneconomic factors, the
Director will also consider the impact on other water rights if the project is
abandoned during construction or after completion, the impact on public
resource values, and the cost to local, state and federal governments of such
an abandonment. (3-18-22)
c.
Criteria for determining whether the application is made in good faith. The
criteria requiring that the Director evaluate whether an application is made in
good faith or whether it is made for delay or speculative purposes requires an
analysis of the intentions of the applicant with respect to the filing and
diligent pursuit of application requirements. The judgment of another person's
intent can only be based upon the substantive actions that encompass the
proposed project. Speculation for the purpose of this rule is an intention to
obtain a permit to appropriate water without the intention of applying the
water to beneficial use with reasonable diligence. Speculation does not prevent
an applicant from subsequently selling the developed project for a profit or
from making a profit from the use of the water. An application will be found to
have been made in good faith if: (3-18-22)
i.
The applicant shall have legal access to the property necessary to construct
and operate the proposed project, has the authority to exercise eminent domain
authority to obtain such access, or in the instance of a project diverting
water from or conveying water across land in state or federal ownership, has
filed all applications for a right-of-way. Approval of applications involving
Desert Land Entry or Carey Act filings will not be issued until the United
States Department of Interior, Bureau of Land Management has issued a notice
classifying the lands suitable for entry; and (3-18-22)
ii. The applicant is in the process of
obtaining other permits needed to construct and operate the project; and
(3-18-22)
iii. There are no obvious
impediments that prevent the successful completion of the project.
(3-18-22)
d. Criteria for
determining whether the applicant has sufficient financial resources to
complete the project. (3-18-22)
i. An
applicant will be found to have sufficient financial resources upon a showing
that it is reasonably probable that funding is or will be available for project
construction or upon a financial commitment letter acceptable to the Director.
This showing is required as described in Subsection
040.05.c. or at the time the
hearing provided by Subsection
040.05.c. is conducted.
(3-18-22)
ii. A governmental entity
will be determined to have satisfied this requirement if it has the taxing,
bonding or contracting authority necessary to raise the funds needed to
commence and pursue project construction in accordance with the construction
schedule. (3-18-22)
e.
Criteria for determining whether the project conflicts with the local public
interest. The Director will consider the following, along with any other
factors he finds to be appropriate, in determining whether the project will
conflict with the local public interest: (3-18-22)
i. The effect the project will have on the
economy of the local area affected by the proposed use as determined by the
employment opportunities, both short and long term, revenue changes to various
sectors of the economy, short and long term, and the stability of revenue and
employment gains; (3-18-22)
ii. The
effect the project will have on recreation, fish and wildlife resources in the
local area affected by the proposed use; and (3-18-22)
iii. An application which the Director
determines will conflict with the local public interest will be denied unless
the Director determines that an over-riding state or national need exists for
the project or that the project can be approved with conditions to resolve the
conflict with the local public interest.
(3-18-22)
02.
Criteria for Evaluating Whether a Proposed Use of Trust Water Will Cause
a Significant Reduction. Reference: Section
42-203C(1), Idaho
Code and Subsection 025.02.b. For purposes of
reallocating trust water made available by the Snake River water rights
agreement, an application for permit or a permit being reprocessed, will be
presumed to not cause a significant reduction if the Director determines that
it complies with both the individual and cumulative tests for evaluating
significant reduction as provided in Subsections
045.02.a. and 045.02.b.
(3-18-22)
a. Individual test for evaluating
significant reduction. A proposed use will be presumed to not cause a
significant reduction if when fully developed and its impact is fully felt, the
use will individually reduce the flow of the Snake River measured at Murphy
Gauge by not more than two (2) acre-feet per day. An irrigation project of two
hundred (200) acres or less located anywhere in the Snake River Basin above
Murphy Gauge proposing to use trust water is presumed to not reduce the flow at
Murphy Gauge by more than two (2) acre-feet per day. The presumption of this
section is not applicable to applications or permits to be reprocessed which
the Director determines to be part of a larger development. (3-18-22)
b. Cumulative test for evaluating significant
reduction. A proposed use will be presumed to not cause a significant
reduction, if the use, when fully developed and its impact is fully felt and
when considered cumulatively with other existing uses and other uses reasonably
likely to exist within twelve (12) months of the proposed use, will not deplete
the flow of Snake River measured at Murphy Gauge by more than: (3-18-22)
i. Forty thousand (40,000) acre-feet per
calendar year when considered with all other uses approved for development of
trust water during that calendar year; (3-18-22)
ii. Forty thousand (40,000) acre-feet per
calendar year using a four (4) year moving average when considered with all
other uses approved for development of trust water during that four (4) year
period; and (3-18-22)
iii. Twenty
thousand (20,000) acre-feet per calendar year from filings approved for
reallocation of trust water which meet the criteria of Subsection
045.02.a.
(3-18-22)
c. The Director
will determine on a case-by-case basis from available information whether a
permit to be reprocessed or an application for trust water which exceeds the
flow depletion limits of Subsection
045.02, or one which meets the
flow depletion limits but has been protested, will cause a significant
reduction. In making this determination, the Director will consider: (3-18-22)
i. The amount of the reduction in hydropower
generation that the proposed use will cause individually and cumulatively with
other uses expected to be developed within twelve (12) months of the proposed
use as compared to the existing hydropower generation output of the affected
facility or facilities. (3-18-22)
ii. The relative importance of the affected
hydropower facility or facilities to other sources of electrical power
generation available to the holder of the facility or facilities.
(3-18-22)
iii. The timing of the
reduction in hydropower generation both on an annual basis and on a long-term
basis considering the lag time between the beginning of diversion by the
proposed use and the resulting reduction in hydropower generation.
(3-18-22)
iv. The effect of the
reduction in hydropower generation on the unit cost of hydropower from the
facility or facilities and the average cost of electrical power offered by the
holder of the facility. (3-18-22)
v. The terms of contracts, mortgages, or
regulatory permits and licenses which require the holder of the hydropower
generation facility to retain the capability to produce hydroelectric power at
a specific level. (3-18-22)
d. Other provisions of these rules not
withstanding, applications or permits to be reprocessed proposing a direct
diversion of water for irrigation purposes from the Snake River between Milner
Dam and Swan Falls Dam or from tributary springs in this reach are presumed to
cause a significant reduction. (3-18-22)
e. Other provisions of these rules not
withstanding, applications or permits to be reprocessed for DCMI purposes are
presumed to not cause a significant reduction. (3-18-22)
03.
Criteria for Evaluating Public
Interest. If the Director determines that a proposed use of trust water
held by the state pursuant to Section
42-203B(5), Idaho
Code, will cause a significant reduction, the Director will consider the
criteria of Section
42-203 C(2), Idaho Code, before
acting on the application or permit being reprocessed. The Director shall
consider and balance the relative benefits and detriments for each factor
required to be weighed under Section
42-203 C(2), Idaho Code, to
determine whether a proposed reduction of the amount of water available for
power production serves the greater public interest. The Director shall
evaluate whether the proposed use sought in the permit being reprocessed or the
application will provide the greater benefit to the people of the state of
Idaho when balanced against other uses for the same water resource. In
evaluating the public interest criteria, the Director will use the following
guidelines: (3-18-22)
a. The Director will
consider the potential benefits both direct and indirect, and that the proposed
use would provide to the state and local economy. The economic appraisal shall
be based upon generally accepted economic analysis procedures which uniformly
evaluate the following factors within the state of Idaho and the county or
counties directly affected by the project: (3-18-22)
i. Direct project benefits.
(3-18-22)
ii. Indirect benefits
including net revenues to the processing, transportation, supply, service and
government sectors of the economy. (3-18-22)
iii. Direct project costs, to include the
opportunity cost of previous land use. (3-18-22)
iv. Indirect project costs, including
verifiable costs to government in net lost revenue and increased regulation
costs, verifiable reductions in net revenue resulting from losses to other
existing instream uses, and the increased cost of replacing reduced hydropower
generation from unsubordinated hydropower generating facilities.
(3-18-22)
b. The Director
will consider the impact the proposed use would have upon the electric utility
rates in the state of Idaho, and the availability, foreseeability and cost of
alternative energy sources to ameliorate such impact. These evaluations will
include the following considerations: (3-18-22)
i. Projections of electrical supply and
demand for Idaho and the Pacific Northwest made by the Bonneville Power
Administration and the Northwest Power Planning Council and information
available from the Idaho Public Utilities Commission or from the electric
utility from whose water right trust water is being reallocated.
(3-18-22)
ii. The long term
reliability of the substitute source and the cost of alternatives including the
resulting impact on electrical rates. (3-18-22)
c. The Director will consider whether the
proposed use will promote the family farming tradition in the state of Idaho.
For purposes of this evaluation, the Director will use the following factors.
(3-18-22)
d. If the total land to
be irrigated by the applicant, including currently owned and leased irrigated
land and land proposed to be irrigated in the application and other
applications and permits of the applicant, do not exceed nine hundred sixty
(960) acres, the application will be presumed to promote the family farming
tradition. (3-18-22)
e. If the
requirement of Subsection
045.03.c.i. is not met, the
Director will consider the extent the applicant conforms to the following
characteristics: (3-18-22)
i. The farming
operation developed or expanded as a result of the application is operated by
the applicant or a member of his family (spouse, parents or grandparents,
lineal descendants, including those that are adopted, lineal descendants of
parents; and spouse of lineal descendants); (3-18-22)
ii. In the event the application is filed in
the name of a partnership, one or more of the partners shall operate the
farming operation; and (3-18-22)
iii. If the application is in the name of a
corporation, the number of stockholders does not exceed fifteen (15) persons,
and one or more of the stockholders operates the farming operation unless the
application is submitted by an irrigation district, drainage district, canal
company or other water entity authorized to appropriate water for landowners
within the district or for stockholders of the company all of whom shall meet
the family farming criteria. (3-18-22)
f. The Director will consider the promotion
of full economic and multiple use development of the water resources of the
state of Idaho. In this regard, the extent to which the project proposed
complies with the following factors will be considered: (3-18-22)
i. Promotes and conforms with the adopted
State Water Plan; (3-18-22)
ii.
Provides for coordination of proposed and existing uses of water to maximize
the beneficial use of available water supplies; (3-18-22)
iii. Utilizes technology economically
available to enhance water and energy use efficiency; (3-18-22)
iv. Provides multiple use of the water,
including multipurpose storage; (3-18-22)
v. Allows opportunity for reuse of return
flows; (3-18-22)
vi. Preserves or
enhances water quality, fish, wildlife, recreation and aesthetic values;
(3-18-22)
vii. Provides
supplemental water supplies for existing uses with inadequate supplies.
(3-18-22)
g. The Director
will consider whether a proposed use, which includes irrigation, will conform
to a staged development policy of up to twenty thousand (20,000) acres per year
or eighty thousand (80,000) acres in any four (4) year period in the Snake
River drainage above Murphy Gauge. In applying this criteria, the Director will
consider the following: (3-18-22)
i. "Above
Murphy gauge" means the Snake River and any of its surface or groundwater
tributaries upstream from Murphy gauge which gauge is located on the Snake
River approximately four (4) miles downstream from Swan Falls Dam from which
trust water is to be reallocated; (3-18-22)
ii. Twenty thousand (20,000) acres per year
or eighty thousand (80,000) acres per four (4) year period is a four (4) year
moving average of Twenty thousand (20,000) acres/year of permits issued during
a calendar year for irrigation development. If permits for development of less
than twenty-thousand (20,000) acres are issued in a year, additional
development in excess of twenty-thousand (20,000) acres can be permitted in
succeeding years. Likewise, if more than twenty thousand (20,000) acres is
permitted in one year (recognizing that a single large project could exceed
twenty thousand (20,000) acres) the permitted development in succeeding years
must be correspondingly less to maintain no greater than a twenty thousand
(20,000) acres/year average for any four (4) year period; (3-18-22)
iii. The criteria of Subsection
045.03.g. applies to
multiple-use projects with irrigation as a principal purpose. Projects which
use irrigation as only an incidental purpose, such as the land treatment of
waste, shall not be included within this policy; and (3-18-22)
iv. An application determined by the Director
to be otherwise approvable but found to exceed the acreage limitations, when
considered with other applications approved for development, may be approved
with conditions providing for the construction of project works and beneficial
use of water to be commenced in a future year. (3-18-22)
h. No single public interest criterion will
be entitled to greater weight than any other public interest criterion.
(3-18-22)
i. Until such time as the
studies prescribed in Policy 32 I of the State Water Plan are completed and
accepted by the Idaho Water Resource Board, applications and permits
reprocessed which propose to divert water to surface storage from the Snake
River and surface tributaries upstream from Murphy Gauging Station shall be
presumed to satisfy the public interest criteria of Section
42-203 C(2), Idaho Code.
Applications or reprocessed permits which are approved prior to completion of
the studies, will not be subject to additional reprocessing .
(3-18-22)
j. Applications for
permit for trust water sources filed prior to July 1, 1985, for projects for
which diversion and beneficial use was complete prior to October 1, 1984, are
presumed to satisfy the public interest criteria of Section
42-203C(2), Idaho
Code. (3-18-22)
k. Applications or
permits to be reprocessed proposing a direct diversion of water for irrigation
purposes from the Snake River between Milner Dam and Swan Falls Dam or from
tributary springs in this reach are presumed not to be in the public interest
as defined by Section
42-203C, Idaho Code. Such
proposals, are presumed to prevent the full economic and multiple use of water
in the Snake River Basin and to adversely affect hydropower availability and
electrical energy rates in the state of Idaho. (3-18-22)
l. Proposed DCMI uses which individually do
not have a maximum consumptive use of more than two acre-feet/day are presumed
to meet the public interest criteria of Section
42-203 C(2), Idaho Code, unless
protested. (3-18-22)