2005 Idaho Code - 42-105 — USE OF NATURAL WATERWAYS -- MEASUREMENT OF COMMINGLED WATER -- APPROVAL OF RIGHT TO EXCHANGE WATER

                                  TITLE  42
                       IRRIGATION AND DRAINAGE -- WATER
                            RIGHTS AND RECLAMATION
                                  CHAPTER 1
                      APPROPRIATION OF WATER -- GENERAL
                                  PROVISIONS
    42-105.  USE OF NATURAL WATERWAYS -- MEASUREMENT OF COMMINGLED WATER --
APPROVAL OF RIGHT TO EXCHANGE WATER. (1) The water that a person is entitled
to divert by reason of a valid water right may be turned into the channel of a
natural waterway and mingled with its water, and then reclaimed, but in
reclaiming the water so mingled, the amount of water to which prior
appropriators may be entitled shall not be diminished, and due allowance shall
be made for loss by evaporation and seepage. The use of natural waterways to
commingle and reclaim water shall be subject at all times to the supervision
and control of the director of the department of water resources and shall be
subject to the regulation of the watermaster within an established water
district. The amounts of water turned into or diverted from all natural
waterways are subject to the requirement of measurement and reporting.
    (2)  The water that a person is entitled to divert by reason of a valid
water right, or water that a person is seeking to appropriate, may be
exchanged for water under another water right, or for other water from the
same or another source, as hereinafter provided:
    (a)  If the applicant intends to exchange water the applicant is entitled
    to divert under an existing valid water right for any other water,
    approval of the exchange shall be obtained by filing an application under
    the provisions of section 42-240, Idaho Code;
    (b)  If the applicant proposes to exchange water that the applicant is
    seeking to appropriate, approval of the exchange shall be obtained by
    filing an application to appropriate water under section 42-202, Idaho
    Code. The proposed exchange shall be described in the application and the
    application shall be processed in accordance with the provisions of
    section 42-203A, Idaho Code. If the application seeks to exchange the
    water to be appropriated with water available under another water right,
    the application shall be accompanied by an agreement to exchange signed by
    the owner of the existing water right. An exchange with water under an
    existing water right cannot result in an enlargement in use of the
    existing right.
    (3)   An exchange of water hereafter made without the approval of the
department of water resources as provided in this section shall be invalid.
Nothing in this section shall affect the right a person may have or may obtain
to turn water into a ditch or other artificial conveyance and reclaim the
water.