42-1503. APPLICATION TO APPROPRIATE — PROCESS — JUDICIAL REVIEW. Whenever the board desires to appropriate a minimum stream flow of the unappropriated waters of any stream, it shall submit an application to the director. Such application shall be made upon forms to be furnished by the director and shall include:

(a) The name of the stream and legal description of the point on the stream where the minimum stream flow is proposed to be appropriated and determined;

(b) The minimum stream flow proposed;

(c) The purpose for which the minimum stream flow appropriation is proposed to be made;

(d) The period of time or season of the year during which said appropriation is proposed; and

(e) Such other information as shall be required by the form furnished by the director.

Upon the receipt of an application filed under the provisions of this act, the director shall forward a copy thereof to the departments of fish and game, environmental quality, parks and recreation, and any other public entity likely to have an interest or knowledge in the matter. The director shall also prepare a notice describing the proposed appropriation of minimum stream flow and cause said notice to be published once each week in two (2) consecutive weekly issues of a newspaper published within the county where the appropriation of minimum stream flow is proposed, if there is such newspaper, otherwise in a newspaper of general circulation within the county. The director may also give other notice of the proposed appropriation in such manner and to such persons or organizations as he may determine. Such notice shall specify the time and place for a public hearing to be held concerning the proposed appropriation of minimum stream flow. Such hearing shall be held in accordance with the provisions of section 42-1701A(1) and (2), Idaho Code. The director shall have power to administer oaths and to require the attendance of such witnesses and the production of such books, records, and papers as he may desire at the hearing and for that purpose the director may apply to the district court for a subpoena for any witnesses or a subpoena duces tecum to compel the production of any books, records, or papers which shall be served and returned in the same manner as a subpoena in a civil case. In case of any disobedience or neglect to obey a subpoena or subpoena duces tecum it shall be the duty of the district court in any county of this state in which such disobedience, neglect, or refusal occurs, or any judge thereof, on application by the director, to compel obedience by proceedings for contempt as in the case of a subpoena issued by a regularly constituted court. Upon the conclusion of the hearings and completion of any investigation conducted by the director, he shall enter his findings in writing approving the application in whole, or in part, or upon conditions or rejecting said application. Approval of any such application must be based upon a finding that such appropriation of minimum stream flow:

(a) will not interfere with any vested water right, permit, or water right application with priority of right date earlier than the date of receipt in the office of the director of a complete application for appropriation of minimum stream flow filed under the provisions of this act;

(b) is in the public, as opposed to private, interest;

(c) is necessary for the preservation of fish and wildlife habitat, aquatic life, recreation, aesthetic beauty, navigation, transportation, or water quality of the stream;

(d) is the minimum flow or lake level and not the ideal or most desirable flow or lake level; and

(e) is capable of being maintained as evidenced by records of stream flows and water levels and the existing or future establishment of necessary gauging stations and bench marks.

A copy of the director’s findings shall be mailed to the board and to each person or organization who gave testimony in support of or in opposition to the proposed appropriation. The board or any person testifying at a hearing who is aggrieved by a decision of the director shall have the right to have that decision reviewed by the courts pursuant to section 42-1701A(4), Idaho Code. Approved applications shall be submitted to each legislature by the fifth legislative day of each regular session, and: (i) shall not become finally effective until affirmatively acted upon by concurrent resolution of the Idaho legislature; or (ii) except that if the legislature fails to act prior to the end of the regular session to which the application was submitted, the application shall be considered approved.

History:

[42-1503, added 1978, ch. 345, sec. 11, p. 892; am. 1980, ch. 238, sec. 14, p. 544; am. 2001, ch. 103, sec. 80, p. 318.]