Idaho State Statutes - Idaho Attorney Directory

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.

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