2005 Idaho Code - 42-113 — IN-STREAM AND OTHER WATER USE FOR LIVESTOCK

                                  TITLE  42
                       IRRIGATION AND DRAINAGE -- WATER
                            RIGHTS AND RECLAMATION
                                  CHAPTER 1
                      APPROPRIATION OF WATER -- GENERAL
                                  PROVISIONS
    42-113.  IN-STREAM AND OTHER WATER USE FOR LIVESTOCK. (1) A permit may be
issued, but shall not be required for appropriation of water for the in-stream
watering of livestock. In the consideration of applications for permits to
appropriate water for other purposes, the director of the department of water
resources shall impose such reasonable conditions as are necessary to protect
prior downstream water rights for in-stream livestock use, and in the
administration of the water rights on any stream, the director, and the
district court where applicable, shall recognize and protect water rights for
in-stream livestock use, according to priority, as they do water rights for
other purposes. As used in this section, the phrase "in-stream watering of
livestock" means the drinking of water by livestock directly from a natural
stream, without the use of any constructed physical diversion works.
    (2)  For rights to the use of water for in-stream or out-of-stream
livestock purposes, associated with grazing on federally owned or managed
land, established under the diversion and application to beneficial use method
of appropriation, the priority date shall be the first date that water
historically was used for livestock watering associated with grazing on the
land, subject to the provisions of section 42-222(2), Idaho Code.
    (3)  This subsection is established to promote the watering of livestock
away from streams and riparian areas, but not to require fencing of livestock
away from streams and riparian areas.
    (a)  Any person having an established water right or appropriating water
    for in-stream watering of livestock pursuant to subsection (1) of this
    section may, in addition to the instream use, divert the water for
    livestock use away from the stream or riparian area.  The diversion may
    occur only if the following conditions are met:
         (i)   The water is diverted from a surface water source to a trough
         or tank through an enclosed water delivery system;
         (ii)  The water delivery system is equipped with an automatic shutoff
         or flow control mechanism or includes a means for returning unused
         water to the surface water source through an enclosed delivery
         system, and the system is designed and constructed to allow the rate
         of diversion to be measured;
         (iii) The diversion is from a surface water source to which the
         livestock would otherwise have access and the watering tank or trough
         is located on land from which the livestock would have access to the
         surface water source from which the diversion is made;
         (iv)  The diversion of water out of the stream in this manner does
         not injure other water rights;
         (v)   The use of the water diverted is for watering livestock; and
         (vi)  The bed and banks of the source shall not be altered as that
         term is defined in section 42-3802, Idaho Code, except that an inlet
         conduit may be placed into the source in a manner that does not
         require excavation or obstruction of the stream channel, unless
         additional work is approved by the director of the department of
         water resources.
    (b)  The amount of water diverted for watering of livestock in accordance
    with this subsection shall not exceed thirteen thousand (13,000) gallons
    per day per diversion.
    (c)  Before construction and use of a water diversion and delivery system
    as provided in this subsection, the person or other entity proposing to
    construct and use the system shall give notice to the director of the
    department of water resources. Separate notice for each diversion shall be
    provided on a form approved by the director and shall be accompanied by a
    twenty-five dollar ($25.00) fee for each notice filed. Filing of the
    notice as herein provided shall serve as a substitute for filing a notice
    of claim to a water right pursuant to section 42-243, Idaho Code. The
    director may provide notice to holders of water rights and others as the
    director deems appropriate.
    (d)  Compliance with the provisions of this subsection is a substitute for
    the requirements for transfer proceedings in section 42-222, Idaho Code.
    In the administration of water diverted for livestock watering pursuant to
    this subsection, the director, and the district court where applicable,
    shall recognize and protect water rights for out-of-stream livestock
    watering use pursuant to this subsection as they would in-stream livestock
    watering use. The priority date for out-of-stream watering of livestock
    pursuant to this subsection shall be the first date that water
    historically was used for livestock watering and shall not be altered due
    to the diversion out-of-stream.
    (e)  Any water right holder who determines that diversion or use of water
    under the provisions of this subsection is depriving the water right
    holder of water to which the water right holder is entitled may petition
    the director of the department of water resources to curtail the diversion
    or use of water for livestock purposes. Upon such petition, the director
    shall cause an investigation to be made and may hold hearings or gather
    information in other ways. If the director finds that an interference is
    occurring, the director may order curtailment of diversion or use of the
    water or may require the water diversion and delivery system to be
    modified to prevent injury to other water rights. Any person feeling
    aggrieved by an order of the director in response to a petition filed as
    herein provided shall be entitled to review as provided in section
    42-1701A, Idaho Code.
    (4)  No change in use of any water right used for watering of livestock,
whether proposed under this section or section 42-222, Idaho Code, shall be
made or allowed without the consent of the permittee in the federal grazing
allotment, if any, in which the water right is used for the watering of
livestock.