2005 Idaho Code - 42-1503 — APPLICATION TO APPROPRIATE -- PROCESS -- JUDICIAL REVIEW

                                  TITLE  42
                       IRRIGATION AND DRAINAGE -- WATER
                            RIGHTS AND RECLAMATION
                                  CHAPTER 15
                             MINIMUM STREAM FLOW
    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.