Ta b l e o f C o n t e n t s

37.03.08 – Water Appropriation Rules

000. Legal Authority (Rule 0). ................................................................................... 2
001. Title And Scope (Rule 1). .................................................................................. 2
002. Written Interpretations (Rule 2). ........................................................................ 2
003. Administrative Appeals (Rule 3). ....................................................................... 2
004. -- 009. (Reserved) .............................................................................................. 2
010. Definitions (Rule 10). ........................................................................................ 2
011. -- 024. (Reserved) .............................................................................................. 3
025. General Description Of The Procedure To Be Used For Allocation (Rule 25). . 3
026. -- 029. (Reserved) .............................................................................................. 4
030. Location And Nature Of Trust Water (Rule 30). ................................................ 4
031. -- 034. (Reserved) .............................................................................................. 5
035. Application Requirements (Rule 35). ................................................................ 5
036. -- 039. (Reserved) .............................................................................................. 8
040. Processing Applications For Permit And Reprocessing Permits (Rule 40). ...... 8
041. -- 044. (Reserved) ............................................................................................ 14
045. Evaluation Criteria (Rule 45). .......................................................................... 14
046. -- 049. (Reserved) ............................................................................................ 19
050. Conditions Of Approval (Rule 50). .................................................................. 19
051. -- 054. (Reserved) ............................................................................................ 20
055. Moratorium (Rule 55). ..................................................................................... 20
056. -- 999. (Reserved) ............................................................................................ 21

Page 1
 IDAPA 37
TITLE 03
CHAPTER 08

37.03.08 – WATER APPROPRIATION RULES

000. LEGAL AUTHORITY (RULE 0).

The Director of the Department of Water Resources adopts these rules under the authority provided by Section 42-
1805(8), Idaho Code. (7-1-93)

001. TITLE AND SCOPE (RULE 1).

01. Title. (7-1-93)

02. Scope. (7-1-93)

a. Background and Purpose. The 1985 Idaho Legislature authorized reallocation of certain
hydropower water rights to new upstream beneficial uses. The reallocation is to be accomplished using statutes
designed to provide for the appropriation of unappropriated public water supplemented by a public interest review of
those reallocations which significantly reduce existing hydropower generation. These rules provide the procedures
for obtaining the right to divert and use unappropriated public water as well as water previously appropriated for
hydropower use which has been placed in trust with the State of Idaho and is subject to reallocation. Guidelines are
provided for the filing and processing of applications, and criteria are established for determining the actions to be
taken by the Director. (7-1-93)

b. Scope and Applicability. These rules are applicable to appropriations from all sources of
unappropriated public water in the state of Idaho under the authority of Chapter 2, Title 42, Idaho Code. Sources of
public water include rivers, streams, springs, lakes and groundwater. The rules are also applicable to the reallocation
of hydropower water rights held in trust by the state of Idaho. The rules are applicable to all applications to
appropriate water filed with the Department of Water Resources prior to the effective date of these rules upon which
an action to approve or deny the application is pending and to all applications filed subsequent to adoption of the
rules and regulations. In addition, the rules are applicable to existing permits to appropriate water required to be
reviewed under the provisions of Section 42-203D, Idaho Code. (7-1-93)

002. WRITTEN INTERPRETATIONS (RULE 2).

003. ADMINISTRATIVE APPEALS (RULE 3).

004. -- 009. (RESERVED)

010. DEFINITIONS (RULE 10).

Unless the context otherwise requires, the following definitions govern these rules: (7-1-93)

01. Acre-Foot (AF). A volume of water sufficient to cover one (1) acre of land one (1) foot deep and is
equal to forty-three thousand five hundred sixty (43,560) cubic feet. (7-1-93)

02. Advertisement. The action taken by the Director to provide notice, usually by publication of a
legal notice in one (1) or more newspapers, of a proposed appropriation or other notice required in administration of
his duties and responsibilities. (7-1-93)
03. Applicant. The person, corporation, association, firm, governmental agency or other entity, or the
holder of a permit being reprocessed pursuant to Section 42-203D, Idaho Code, who initiates an appropriation of
water or related water matter for the Director’s consideration. (7-1-93)

04. Application for Permit. The written request to the department on forms furnished by the
department proposing to appropriate the public waters or trust waters of the state. (7-1-93)

05. Board. The Idaho Water Resource Board. (7-1-93)

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IDAHO ADMINISTRATIVE CODE IDAPA 37.03.08
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06. Beneficial Use. One (1) or more of the recognized beneficial uses of water including but not
limited to, domestic, municipal, irrigation, hydropower generation, industrial, commercial, recreation, stockwatering
and fish propagation uses for which permits to appropriate water can be issued as well as other uses which provide a
benefit to the user of the water as determined by the Director. Industrial use as used for purposes of these rules
includes, but is not limited to, manufacturing, mining and processing uses of water. (7-1-93)

07. Cubic Foot Per Second (CFS). A rate of flow approximately equal to four hundred forty-eight and
eight-tenths (448.8) gallons per minute and also equals fifty (50) Idaho miner’s inches. (7-1-93)
08. DCMI. An acronym for domestic, commercial, municipal and industrial. In these rules it
designates certain classes of these uses presumed to satisfy public interest requirements. Domestic use, for purposes
of this definition, is water for one or more households and water used for all other purposes including irrigation of a
residential lot in connection with each of the households where the diversion to each household does not exceed
thirteen thousand (13,000) gallons per day. Also for purposes of this definition, commercial, municipal and industrial
uses are any such uses which do not deplete the system containing the trust water more than two (2) acre feet per day.
(7-1-93)

09. Department. The Idaho Department of Water Resources. (7-1-93)

10. Director. The Director of the Idaho Department of Water Resources. (7-1-93)

11. Legal Subdivision. A tract of land described by the government land survey and usually is
described by government lot or quarter-quarter, section, township and range. A lot and block of a subdivision plat
recorded with the county recorder may be used in addition to the quarter-quarter, section, township and range
description. (7-1-93)

12. Permit or Water Right Permit. The water right document issued by the Director authorizing the
diversion and use of unappropriated public water of the state or water held in trust by the state. (7-1-93)

13. Priority, or Priority of Appropriation, or Priority Date. The date of appropriation established in
the development of a water right. The priority of a water right for public water or trust water is used to determine the
order of water delivery from a source during times of shortage. The earlier or prior date being the better right.
(7-1-93)

14. Project Works. A general term which includes diversion works, conveyance works, and any
devices which may be used to apply the water to the intended use. Improvements which have been made as a result of
application of water, such as land preparation for cultivation, are not a part of the project works. (7-1-93)

15. Single Family Domestic Purposes. Water for household use or livestock and water used for all
other purposes including irrigation of up to one half (l/2) acre of land in connection with said household where total
use is not in excess of thirteen thousand (l3,000) gallons per day. (7-1-93)

16. Subordinated Water Right. A water right used for hydropower generation purposes that is subject
to depletion without compensation by upstream water rights which are initiated later in time and which are for a
purpose other than hydropower generation purposes. (7-1-93)

17. Trust Water. That portion of an unsubordinated water right used for hydropower generation
purposes which is in excess of a minimum stream flow established by state action either with agreement of the holder
of the hydropower right as provided by Section 42-203B(5), Idaho Code or without an agreement as provided by
Section 42-203B(3), Idaho Code. (7-1-93)

18. Unappropriated Water. The public water of the state of Idaho in streams, rivers, lakes, springs or
groundwater in excess of that necessary to satisfy prior rights including prior rights reserved by federal law. (7-1-93)

011. -- 024. (RESERVED)

025. GENERAL DESCRIPTION OF THE PROCEDURE TO BE USED FOR ALLOCATION (RULE 25).

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IDAHO ADMINISTRATIVE CODE IDAPA 37.03.08
Department of Water Resources Water Appropriation Rules

01. Applications to Appropriate Unappropriated Water and Water Held in Trust. Applications to
appropriate unappropriated water and water held in trust as provided by Section 42-203B(3), Idaho Code, will be
evaluated using the criteria of Section 42-203A, Idaho Code, which requires an assessment to be made of the impact
of the proposed use on water availability for existing water rights, the adequacy of the water supply for the proposed
use, whether the application is filed for speculative purposes, the financial ability of the applicant to complete the
project, and the effect of the proposed use on the local public interest. (7-1-93)

02. Applications to Appropriate Water from Sources Held by State in Trust. Applications to
appropriate water from sources on which the state holds water in trust, pursuant to Section 203B(5), Idaho Code, will
be processed in a three-step analysis. Evaluation will consider the purposes of “trust water” established in Section 42-
203B, Idaho Code. (7-1-93)

a. First, the proposed use must be evaluated using the procedures and criteria of Section 42-203A,
Idaho Code. If all criteria of Section 42-203A(5), Idaho Code, are satisfied, the application may be approved for
unappropriated water. If the application does not satisfy the criteria of Section 42-203A(5) b, c, d, and e, Idaho Code,
or is found to reduce the water to existing water rights other than those held in trust by the state, the application will
be denied. If the application satisfies all criteria of Section 42-203A(5), Idaho Code, except Section 42-203A(5)a,
Idaho Code, but is found to reduce water held in trust by the state, the application will be reviewed under criteria of
Section 42-203C, Idaho Code. (7-1-93)

b. Second, Section 42-203C, Idaho Code, requires a determination of whether the proposed use will
significantly reduce, individually or cumulatively with existing uses and other uses reasonably likely to exist within
twelve months of the proposed use, the amount of trust water available to the holder of the water right used for power
production that is defined by agreement pursuant to subsection (5) of Section 42-203B, Idaho Code (hereinafter
termed “significant reduction”). If a significant reduction will not occur, the application may be approved without an
evaluation of the public interest criteria of Section 42-203C(2), Idaho Code. (7-1-93)

c. Third, based upon a finding of significant reduction, the proposed use will be evaluated in terms of
the public interest criteria of Section 42-203C(2), Idaho Code. (7-1-93)

026. -- 029. (RESERVED)

030. LOCATION AND NATURE OF TRUST WATER (RULE 30).

01. Snake River Water Rights Agreement. The legislation ratifying the Snake River water rights
agreement between the state of Idaho and Idaho Power Company places in trust a part of the flows available to Idaho
Power Company under its hydropower water rights in the Snake River Basin between Swan Falls Dam and Milner
Dam. The flows subject to the trust water provisions and reallocation under Section 42-203C(2), Idaho Code, are as
follows: (7-1-93)

a. Trust water flows under the Snake River water rights agreement are located in the Snake River
between Swan Falls Dam located in Section 18, Township 2 South, Range 1 East, Boise Meridian (B.M.) and Milner
Dam located in Sections 28 and 29, Township 10 South, Range 21 East, Boise Meridian (B.M.) and all surface and
groundwater sources tributary to the Snake River in that reach. (7-1-93)

b. Surface water and groundwater tributary to the Snake River upstream from Milner Dam is not trust
water. After giving notice and considering public comment, the Director will designate the area in which groundwater
is presumed to be tributary to the Snake River upstream from Milner Dam. Modification or changes in the designated
boundary may be made only after providing notice and considering public comment. The area presently designated as
tributary to the Snake River in the Milner Dam to Swan Falls Dam reach is appended to these rules (See Attachment
A in APPENDIX A located at the end of this chapter), for information purposes only. (7-1-93)
c. Trust water flows under the Snake River water rights agreement are those occurring in the Snake
River and tributaries in the geographic area designated in Subsection 030.01.a. which exceed the established
minimum stream flows but are less than the water rights for hydropower generating facilities in the Swan Falls Dam
to Milner Dam reach of Snake River, to the extent such rights were unsubordinated prior to the Snake River water

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IDAHO ADMINISTRATIVE CODE IDAPA 37.03.08
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rights agreement. Minimum average daily flows have been established by action of the Water Resource Board and
legislature at the U.S. Geological Survey gauging station located near Murphy (Section 35, Township 1 South, Range
1 West B.M.) in the amount of three thousand nine hundred (3900) cfs from April 1 to October 31 and five thousand
six hundred (5600) cfs from November 1 to March 31, and at Milner gauging station located in Section 29, Township
10 South, Range 21 East, B.M. in the amount of zero (0) cfs from January 1 to December 31. (7-1-93)

02. Trust Water Created by State Action. Section 42-203B(3), Idaho Code, provides that trust water
can be created by state action establishing a minimum flow without an agreement with the holder of the hydropower
water right. Allocation of trust water so established will be pursuant to state law except the criteria of Section 42-
203C, Idaho Code, will not be considered. (7-1-93)

03. Sources of Public Water Not Trust Water. The following sources of public water are not trust
water and are not subject to the public interest provisions of Section 42-203C, Idaho Code: (7-1-93)
a. Sources or tributaries to sources upon which no hydropower generating facilities are located
downstream within the state of Idaho (Example - Salmon River). (7-1-93)

b. Sources or tributaries to sources which have a state hydropower water right permit or license or
Federal Energy Regulatory Commission license which have not been subordinated, and the state of Idaho has not
entered into an agreement with the holder of the hydropower water right pursuant to Section 42-203B(2), Idaho Code,
and the State of Idaho has not established a minimum stream flow for purposes of protecting hydropower generation.
(7-1-93)

c. Sources or tributaries to sources for which a state hydropower water right permit or license, or the
Federal Energy Regulatory Commission license included a subordination condition. Such flows are considered to be
public waters subject to appropriation under the provisions of Section 42-203A, Idaho Code (Example - Snake River
downstream from Murphy gauging station). (7-1-93)

d. Flows in excess of established rights including rights used for hydropower purposes. Such flows
are unappropriated waters subject to allocation under Section 42-203A, Idaho Code. (7-1-93)

e. Flows in the Snake River upstream from Milner Dam and all surface and groundwater tributaries to
that reach. Such flows are subject to allocation under Section 42-203A, Idaho Code, without consideration of water
rights existing downstream from Milner Dam (Reference: 42-203B(2), Idaho Code). (7-1-93)

031. -- 034. (RESERVED)

035. APPLICATION REQUIREMENTS (RULE 35).

01. General Provisions. (7-1-93)

a. No person shall commence the construction of any project works or commence the diversion of the
public water or trust water of the state of Idaho from any source or change the point of diversion, place, period or
nature of use of any existing water right without first having filed an application for permit to appropriate the water or
other appropriate form with the department and received approval from the Director, unless exempted by these rules
or by statute. (7-1-93)
b. Any person proposing to commence a diversion of the public water or the trust water of the state of
Idaho from a groundwater source for single family domestic purposes is exempt from the application and permit
requirements of Subsection 035.01.a. Any person proposing to add a single family domestic use to an existing
groundwater diversion including one used for single family domestic purposes is exempt from the provisions of
Subsection 035.01.a. (7-1-93)
c. Any person watering livestock directly from a natural stream or natural lake without the use of a
constructed diversion works is exempt from Subsection 035.01.a. (7-1-93)
d. All applications for permit to appropriate public water or trust water of the state of Idaho shall be

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IDAHO ADMINISTRATIVE CODE IDAPA 37.03.08
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on the form provided by the department entitled “Application for Permit to Appropriate the Public Waters of the State
of Idaho” and shall include all necessary information as described in Subsection 035.03. An application for permit
that is not complete as described in Subsection 035.03 will not be accepted for filing and will be returned along with
any fees submitted to the person submitting the application. No priority will be established by an incomplete
application. Applications meeting the requirements of Subsection 035.03. will be accepted for filing and will be
endorsed by the department as to the time and date received. The acceptability of applications requiring clarification
or corrections shall be determined by the Director. (7-1-93)

e. The department will correspond with the applicant concerning applications which have been
accepted for filing by the department which require clarification or correction of the information required by
Subsection 035.03. If the additional or corrected information is supplied after thirty (30) days, the priority date of the
application will be determined by the date the additional or corrected information is received by the department
unless the applicant has requested within the thirty (30) day period additional time to provide the information, has
shown good reasons for needing additional time, and the Director has granted additional time. (7-1-93)

f. Failure to submit the additional or corrected information is cause for the Director to void the
department’s records of the application. (7-1-93)

02. Effect of an Application. (7-1-93)

a. Any application, whether filed before or after promulgation of these rules, which seeks to
appropriate water from a source upon which the state holds trust water shall be considered an application for
appropriation of unappropriated water. If the Director determines unappropriated water is not available, the
application, if otherwise approvable, will be reviewed for compliance with provisions of Section 42-203C, Idaho
Code. (7-1-93)

b. The priority of an application for unappropriated or trust water is established as of the time and date
the application is received in complete form along with the statutory fee in any official office of the department. The
priority of the application, remains fixed unless changed by action of the Director in accordance with applicable law.
(7-1-93)

c. An application for permit to appropriate water is not a water right and does not authorize diversion
or use of water until approved by the Director in accordance with statutes in effect at the time the application is
approved. (7-1-93)
d. An applicant’s interest in an application for permit to appropriate water is personal property. An
assignment of interest in an application must include evidence satisfactory to the Director that the application was not
filed for speculative purposes. (7-1-93)

03. Requirements for Applications to Be Acceptable for Filing. (7-1-93)

a. The department form entitled “Application for Permit to Appropriate the Public Waters of the State
of Idaho” (hereafter termed “application for permit form”) is the required form to apply for either unappropriated
water or trust water. (7-1-93)

b. The following information shall be shown on an application for permit form and submitted together
with the statutory fee to an office of the department before the application for permit may be accepted for filing by the
department. (7-1-93)

i. The name and post office address of the applicant shall be listed. If the application is in the name of
a corporation, the names and addresses of its directors and officers shall be provided. If the application is filed by or
on behalf of a partnership or joint venture, the application shall provide the names and addresses of all partners and
shall designate the managing partner, if any. (7-1-93)

ii. The name of the water source sought to be appropriated shall be listed. For surface water sources,
the source of water shall be identified by the official geographic name listed on the U.S. Geological Survey
Quadrangle map, or if no official name has been given, by the name in local common usage. If the source has not

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IDAHO ADMINISTRATIVE CODE IDAPA 37.03.08
Department of Water Resources Water Appropriation Rules

been named, it can be described as “unnamed,” but the system or river to which it is tributary shall be identified. For
groundwater sources, the source shall be listed as “groundwater.” Only one source shall be listed on an application
unless the application is for a single system which will have more than one source. (7-1-93)

iii. The legal description of the point of diversion and place of use shall be listed. The location of the
point(s) of diversion and the place of use shall be described to the nearest forty (40) acre subdivision or U.S.
Government Lot of the Public Land Survey System. The location of springs shall be described to the nearest ten (10)
acre tract. Subdivision names, lot and block numbers and any name in local common usage for the point of diversion,
or place of use shall be included in the comments section of the application form. If irrigation is listed as a purpose of
use, the number of acres in each forty (40) acre subdivision of the place of use shall be listed. (7-1-93)

iv. The quantity of water to be diverted shall be listed as a rate of flow in cubic feet per second and/or
as a volume to be stored in acre-feet per year for each purpose of use requested. (7-1-93)
v. Impoundment (storage) applications shall show the maximum acre-feet requirement per year which
shall not exceed the storage capacity of the impoundment structure unless the application describes a plan of
operation for filling the reservoir more than once per year. (7-1-93)

vi. Every offstream storage impoundment application shall show a maximum rate of diversion to
storage as well as the total storage volume. (7-1-93)

vii. The nature of the proposed beneficial use or uses of the water shall be listed. While the purpose
may be described in general terms such as irrigation, industrial or municipal, a description sufficient to identify the
proposed use or uses of the water shall also be included. (7-1-93)

viii. The period of each year during which water will be diverted, stored and beneficially used shall be
listed. The period of use for irrigation purposes shall coincide with the annual periods of use shown in Figure 1 in
APPENDIX B (located at the end of this chapter), unless it can be shown to the satisfaction of the Director that a
different period of use is necessary. (7-1-93)

ix. The proposed method of diversion, conveyance system and system for distributing and using the
water shall be described. (7-1-93)

x. The period of time required for completion of the project works and application of water to the
proposed use shall be listed. This period of time shall not exceed the time required to diligently and uninterruptedly
apply the water to beneficial use and shall not exceed five (5) years. (7-1-93)

xi. A map or plat of sufficient scale (not less than two (2) inches equal to one (1) mile) to show the
project proposed shall be included. The map or plat shall agree with the legal descriptions and other information
shown on the application. (7-1-93)
xii. The application form shall be signed by the applicant listed on the application or evidence must be
submitted to show that the signator has authority to sign the application. An application in more than one (1) name
shall be signed by each applicant unless the names are joined by “or” or “and/or.” (7-1-93)

xiii. Applications by corporations, companies or municipalities or other organizations shall be signed by

an officer of the corporation or company or an elected official of the municipality or an individual authorized by the
organization to sign the application. The signator’s title shall be shown with the signature. (7-1-93)

xiv. Applications may be signed by a person having a current “power of attorney” authorized by the
applicant. A copy of the “power of attorney” shall be included with the application. (7-1-93)

xv. An application signed by a mark or “X” must have the signator’s name printed or typed nearby and
the mark must have been witnessed and the application signed by the witness. (7-1-93)

xvi. Applications to appropriate water in connection with Carey Act or Desert Land Entry proposals
shall include evidence that appropriate applications have been filed for the lands involved in the proposed project.

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(7-1-93)

xvii. The application form shall be accompanied with a fee in the amount required by Section 42-221A,
Idaho Code. (7-1-93)

04. Amended Applications. (7-1-93)

a. Applications for permit shall be amended whenever significant changes to the place, period or
nature of the intended use, method or location of diversion or proposed use or uses of the water or other substantial
changes from that shown on the pending application are intended. An application shall be amended if the proposed
change will result in a greater rate of diversion or depletion (see Subsection 035.04.c.), if the point of diversion, place
of use, or point of discharge of the return flow are to be altered, if the period of the year that water will be used is to
be changed, or if the nature of the use is to be changed. (7-1-93)
b. An application can be amended to clarify the name of the source of water but may not be amended
to change the source of water. (7-1-93)

c. An amendment which increases the rate of diversion, increases the volume of water diverted per
year or the volume of water depleted, lengthens the period of use, or adds an additional purpose of use shall result in
the priority of the application for permit being changed to the date the amended application is received by the
department. (7-1-93)

d. An application for permit may be amended by endorsement by the applicant or his agent on the
original application for permit form which endorsement shall be initialed and dated. If the changes required to the
information on the application are, in the judgment of the Director, substantial enough to cause confusion in
interpreting the application form, the amended application shall be submitted on a new application for permit form to
be designated as an amended application. (7-1-93)

e. An amended application shall be accompanied by the additional fee required by Section 42-221A,
Idaho Code, if the total rate of diversion or total volume of storage requested is increased and by the fee required by
Section 42-221F, Idaho Code, for readvertising if notice of the original application has been published. (7-1-93)

f. If the applicant’s name or mailing address changes, the applicant shall in writing notify the
department of the change. (7-1-93)

036. -- 039. (RESERVED)

040. PROCESSING APPLICATIONS FOR PERMIT AND REPROCESSING PERMITS (RULE 40).

01. General. (7-1-93)

a. Unprotested applications, whether for unappropriated water or trust water, will be processed using
the following general steps: (7-1-93)
i. Advertisement and protest period; (7-1-93)

ii. Department review of applications and additional information, including department field review if
determined to be necessary by the Director; (7-1-93)

iii. Fact finding hearing if determined to be necessary by the Director; (7-1-93)

iv. Director’s decision; (7-1-93)

v. Section 42-1701A, Idaho Code, hearing, if requested; and (7-1-93)

vi. Director’s decision affirmed or modified. (7-1-93)

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b. Protested applications, whether for unappropriated water or trust water, will be processed using the
following general steps: (7-1-93)
i. Advertisement and protest period; (7-1-93)

ii. Hearing and/or conference; (7-1-93)

iii. Department review of applications, hearing record and additional information including department
field review if determined to be necessary by the Director. (7-1-93)

iv. Proposed decision (unless waived by parties); (7-1-93)

v. Briefing or oral argument in accordance with the department’s adopted Rules of Procedure.
(7-1-93)

vi. Director’s decision accepting or modifying the proposed decision. (7-1-93)

c. The Director’s decision rejecting and denying approval of an application for permit filed for
diversion from a source previously designated as a critical groundwater area or upon which a moratorium has
previously been entered may be issued without advertisement of the application. (7-1-93)

d. An applicant may request in writing that commencement of processing of his or her application be
delayed for a period not to exceed one (1) year or that processing be interrupted for a period not to exceed six (6)
months. The Director at his discretion may approve the request unless he determines that others will be injured by the
delay or that the applicant seeks the delay for the purpose of speculation, or that the public interest of the people of
Idaho will not be served by the delay. The Director may approve a request for delay for a shorter period of time or
upon conditions, and may renew the approval upon written request. (7-1-93)

e. As a condition of processing applications or reprocessing permits to reallocate trust water, the

Director may require a cash bond or surety bond. Such bond up to five dollars ($5) per acre of land requested to be
irrigated or two hundred fifty ($250) per cfs for other uses shall serve as a performance bond for satisfactory
compliance with the permitted time requirements for commencement of construction, completion of project works
and diversion of water to beneficial use. Failure to comply with the permitted time requirements, or such extension of
time granted by the Director for good cause shown, is cause for the Director to require surrender of the bond amount
to the department’s Water Administration Account. The bond shall be returned to the permit holder upon satisfactory
compliance with the permit’s time requirements. (7-1-93)

02. Public Notice Requirement. (7-1-93)

a. Applications for permit which have not been advertised. (7-1-93)

i. Advertisement of applications for permit proposing a rate of diversion of ten (10) cfs or less or
storage of one thousand (1000) AF or less shall comply with provisions of Section 42-203A, Idaho Code. The first
required advertisement will be published on the first or third Thursday of a month when published in daily
newspapers and on the first or third publishing day of the month for weekly newspapers. (7-1-93)

ii. Advertisement of applications for permit in excess of the amounts in Subsection 040.02.a.i. shall
comply with provisions of Subsection 040.02.a.i. and shall also be published in a newspaper or newspapers to achieve
statewide circulation. (7-1-93)
iii. Statewide circulation with respect to Section 42-203A(2), Idaho Code, shall be obtained by
publication of a legal notice at least once each week for two (2) successive weeks in a newspaper, as defined in
Section 60-106, Idaho Code, of general circulation in the county in which the point of diversion is located and by
publication of a legal notice at least once each week for two (2) successive weeks in at least one (1) daily newspaper,
as defined in Section 60-107, Idaho Code, published in each of the department’s four (4) administrative regions and
determined by the Director to be of general circulation within the department’s region within which it is published.
The administrative regions of the department are identified on Figure 2 in APPENDIX C (located at the end of this

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chapter). The names of newspapers used for statewide publication are available from any department office. (7-1-93)

b. Applications for permit which have been advertised. (7-1-93)

i. Notice of applications for permit for water from the Snake River between Swan Falls Dam and
Milner Dam or surface and groundwater tributaries to that reach of Snake River which were advertised prior to July 1,
1985 and have been held without final action by the department due to the Swan Falls controversy shall be
readvertised by the Director in accordance with Subsection 040.02.a. as appropriate to allow opportunity for protests
to be entered with respect to the public interest criteria of Section 42-203C(2), Idaho Code. (7-1-93)

ii. Applications for permit from the Snake River or surface and groundwater sources upstream from
Milner Dam which have been held without action due to the Swan Falls controversy may be processed without
readvertisement. (7-1-93)
iii. The applicant shall pay the readvertisement fee provided in Section 42-221F, Idaho Code, prior to
the readvertisement. (7-1-93)

iv. Failure to pay the readvertising fee within thirty (30) days after the applicant is notified to do so is
cause for the Director to void the application. (7-1-93)
c. Notice of existing permits. (7-1-93)

i. Existing permits appropriating water held in trust by the state of Idaho issued prior to July 1, 1985,
unless exempted by Subsection 040.02.c.ii. shall be subject to the review requirements of Section 42-203D, Idaho
Code, and shall be readvertised in accordance with Subsection 040.02.a. as appropriate. The review is limited to the
criteria described in Section 42-203C(2), Idaho Code. (7-1-93)

ii. Permits exempt from the provisions of Section 42-203D, Idaho Code, include: (7-1-93)

(1) Permits appropriating water not held in trust by the state of Idaho; (7-1-93)

(2) Permits for DCMI uses, stockwater uses and other essentially non-consumptive uses as determined
by the Director; and (7-1-93)

(3) Permits for which an acceptable proof of beneficial use submittal was received by the department
prior to July 1, 1985, or permits for which an acceptable proof of beneficial use was submitted after July 1, 1985, if
evidence satisfactory to the Director has been received to show that the permit was fully developed prior to July 1,
1985 to the extent claimed on the proof of beneficial use. (7-1-93)

iii. Holders of permits subject to the review requirement of Section 42-203D, Idaho Code, shall pay in
advance, upon the request of the Director, the readvertising fee required by Section 42-221F, Idaho Code. (7-1-93)

iv. Failure to pay the readvertising fee within thirty (30) days after the applicant is notified to do so is
cause for the Director to cancel the permit. (7-1-93)

d. Provisions for Receiving Notice of Application for Permit by Mail. (7-1-93)

i. Pursuant to Section 42-203A(3), Idaho Code, the department will provide upon written request by
regular mail, postage prepaid, the notices for all applications for permit of the classes requested. Mailings will be
made on a periodic basis to include all notices of a specific class for which advertisements were prepared for
publication during the previous period. Mailings will be made on or about the day of the first advertisement as
provided in Subsection 040.02.a.i. (7-1-93)
ii. Notice of the advertisement of application as described in Section 42-203A(3), Idaho Code, may be
represented by an abstract, summary or other such representation which includes all the information required by
Section 42-203A(1), Idaho Code, for a notice of an application for permit. (7-1-93)

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iii. The annual mailing fee as described in Section 42-203A(3), Idaho Code, shall include all costs
incurred by the department in preparation of mailing of the notices of application to those requesting them. (7-1-93)
iv. The annual fee for receiving notice of all classes will be determined by the Director and shall be
paid to the department in advance on an annual basis (July 1 to June 30). The annual mailing fee shall be prorated by
the department for requests encompassing less than a full year and will be increased for the additional cost the
department incurs for requests encompassing fewer than all classes of notice. (7-1-93)

v. A request for a specific class of notice may be fulfilled by the mailing of notice of all applications
for permit received by the department unless the additional cost to the department of preparing the requests for a
specific class of notice is paid in advance. (7-1-93)

vi. A request to receive a class of notice of applications shall be effective not later than thirty (30) days
after receipt by the department of the request together with the annual fee. (7-1-93)

vii. The notice published in the newspaper of an application or of a permit being reprocessed as
required by Subsections 040.02.a. through 040.02.c. is the official notice required by Section 42-203A, Idaho Code.
Errors or omissions in the notices of applications received by mail as provided by Subsection 040.02.d. or the failure
of the notices to be delivered by mail does not invalidate the published notice. (7-1-93)
03. Protests, Intervention, Hearings, and Appeals. (7-1-93)

a. Protests. (7-1-93)

i. Protests against the approval of an application for permit or against a permit being reprocessed
shall comply with the requirements for pleadings as described in the department’s adopted Rules of Procedure.
(7-1-93)

ii. Protests against the approval of an application for permit or against a permit being reprocessed will
only be considered if received by the department after receipt of the application by the department and prior to the
expiration of the protest period announced in the advertisement unless the protestant successfully intervenes in the
proceeding. (7-1-93)

iii. General statements of protest (blanket protests) against appropriations for a particular class of use
or from a particular source of water will not be considered as valid protests by the Director. (7-1-93)

b. Intervention. Requests to intervene in a proceeding pending before the department shall comply
with the Department’s adopted Rules of Procedure. (7-1-93)

c. Hearings. Hearings will be scheduled and held in accordance with the department’s adopted Rules
of Procedure. (7-1-93)

d. Appeals. Any final decision of the Director may be appealed in accordance with Section 42-1701A,
Idaho Code. (7-1-93)

04. Burden of Proof. (7-1-93)

a. Burden of proof is divided into two (2) parts: first, the burden of coming forward with evidence to
present a prima facie case, and second, the ultimate burden of persuasion. (7-1-93)
b. The burden of coming forward with evidence is divided between the applicant and the protestant as
follows: (7-1-93)

i. The applicant shall bear the initial burden of coming forward with evidence for the evaluation of
criteria (a) through (d) of Section 42-203A(5), Idaho Code; (7-1-93)
ii. The applicant shall bear the initial burden of coming forward with evidence for the evaluation of

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criterion (e) of Section 42-203A(5), Idaho Code, as to any factor affecting local public interest of which he is
knowledgeable or reasonably can be expected to be knowledgeable. The protestant shall bear the initial burden of
coming forward with evidence for those factors relevant to criterion (e) of Section 42-203A(5), Idaho Code, of which
the protestant can reasonably be expected to be more cognizant than the applicant. (7-1-93)

iii. The protestant shall bear the initial burden of coming forward with evidence for the evaluation of
the public interest criteria of Section 42-203C(2), Idaho Code, and of demonstrating a significant reduction, except
that the applicant shall provide details of the proposed design, construction, and operation of the project and directly
associated operations to allow the impact of the project to be evaluated. (7-1-93)

c. The applicant has the ultimate burden of persuasion for the criteria of Section 42-203A, Idaho
Code, and the protestant has the ultimate burden of persuasion for the criteria of Section 42-203C, Idaho Code.
(7-1-93)
d. For unprotested applications or permits to be reprocessed, the Director will evaluate the
application, information submitted pursuant to Subsection 040.05.c. and information in the files and records of the
department, and the results of any studies the department may conduct to determine compliance with the appropriate
criteria. (7-1-93)

e. In protested matters the Director will take official notice of information as described in the
department’s adopted Rules of Procedure, and will, prior to considering, circulate to the parties information from
department studies and field examinations concerning the protested application or permit being reprocessed, if such
information has not otherwise been made a part of the hearing record. (7-1-93)

05. Additional Information Requirements. (7-1-93)

a. For unprotested applications and permits being reprocessed, the additional information required by
Subsection 040.05.c. shall be submitted within thirty (30) days after the Director notifies the applicant that the
application or permit is being reviewed for decision. The Director may extend the time within which to submit the
information upon request by the applicant and upon a showing of good cause. Failure to submit the required
information within the time period allowed will be cause for the Director to void an application or to advance the
priority of a permit being reprocessed by the number of days that the information submittal is late. The Director will
provide opportunity for hearing as provided in Section 42-1701A, Idaho Code. (7-1-93)

b. For protested applications or protested permits being reprocessed, the information required by
Subsection 040.05.c. may be requested by the Director to be submitted within thirty (30) days after notification by the
Director, may be made a part of the record of the hearing held to consider the protest, or may be made available in
accordance with any pre-hearing discovery procedures. Failure to submit the required information within the time
period allowed will be cause for the Director to void an application or to advance the priority of a permit being
reprocessed by the number of days that the information submittal is late. (7-1-93)
c. The following information shall be submitted for applications to appropriate unappropriated water
or trust water and for permits being reprocessed for trust water. The additional information submittal requirements of
this rule are waived for filings which seek to appropriate five (5) cfs or less or storage of five hundred acre-feet (500
AF) or less and for filings seeking reallocation of trust water which the Director determines will reduce the flow of
the Snake River measured at Murphy Gauge by not more than two (2) acre-feet per day. For filings proposing
irrigation as a purpose of use, the additional information is required if more than two hundred (200) acres will be
irrigated. However, the Director may specifically request submittal of any of the following information for any filing,
as he determines necessary. Information relative to the effect on existing water rights, Section 42-203A(5)(a), Idaho
Code, shall be submitted as follows: (7-1-93)

i. For applications appropriating springs or surface streams with five (5) or fewer existing users,
either the identification number, or the name and address of the user, and the location of the point of diversion and
nature of use for each existing water right shall be submitted. (7-1-93)

ii. For applications appropriating groundwater, a plat shall be submitted locating the proposed well
relative to all existing wells and springs and permitted wells within a one-half mile radius of the proposed well.

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(7-1-93)

iii. Information shall be submitted concerning any design, construction, or operation techniques which
will be employed to eliminate or reduce the impact on other water rights. (7-1-93)

d. Information relative to sufficiency of water supply, Section 42-203A(5)(b), Idaho Code, shall be
submitted as follows: (7-1-93)

i. Information shall be submitted on the water requirements of the proposed project, including, but
not limited to, the required diversion rate during the peak use period and the average use period, the volume to be
diverted per year, the period of year that water is required, and the volume of water that will be consumptively used
per year. (7-1-93)

ii. Information shall be submitted on the quantity of water available from the source applied for,
including, but not limited to, information concerning flow rates for surface water sources available during periods of
peak and average project water demand, information concerning the properties of the aquifers that water is to be
taken from for groundwater sources, and information on other sources of supply that may be used to supplement the
applied for water source. (7-1-93)

e. Information relative to good faith, delay, or speculative purposes of the applicant, Section 42-
203A(5)(c), Idaho Code, shall be submitted as follows: (7-1-93)

i. The applicant shall submit copies of deeds, leases, easements or applications for rights-of-way
from federal or state agencies documenting a possessory interest in the lands necessary for all project facilities and
the place of use or if such interest can be obtained by eminent domain proceedings the applicant must show that
appropriate actions are being taken to obtain the interest. Applicants for hydropower uses shall also submit
information required to demonstrate compliance with Sections 42-205 and 42-206, Idaho Code. (7-1-93)

ii. The applicant shall submit copies of applications for other needed permits, licenses and approvals,
and must keep the department apprised of the status of the applications and any subsequent approvals or denials.
(7-1-93)

f. Information Relative to Financial Resources, Section 42-203A(5)(d), Idaho Code, shall be

submitted as follows: (7-1-93)
i. The applicant shall submit a current financial statement certified to show the accuracy of the
information contained therein, or a financial commitment letter along with the financial statement of the lender or
other evidence to show that it is reasonably probable that financing will be available to appropriate the water and
apply it to the beneficial use proposed. (7-1-93)

ii. The applicant shall submit plans and specifications along with estimated construction costs for the
project works. The plans shall be definite enough to allow for determination of project impacts and implications.
(7-1-93)
g. Information Relative to Conflict with the Local Public Interest, Section 42-203A(5)(e), Idaho
Code, shall be submitted as follows: The applicant shall seek comment and shall submit all letters of comment on the
effects of the construction and operation of the proposed project from the governing body of the city and/or county
and tribal reservation within which the point of diversion and place of use are located, the Idaho Department of Fish
and Game, the Idaho Department of Environmental Quality, and any irrigation district or canal company within
which the proposed project is located and from other entities as determined by the Director. (7-1-93)

h. The following information Relative to the Public Interest Criteria of Section 42-203C(2), Idaho
Code, shall be submitted by an applicant seeking reallocation of trust water for a project which the Director
determines will reduce the flow of the Snake River by more than two (2) acre-feet per day. For filings proposing
irrigation as a purpose of use, the additional information is required if more than two hundred (200) acres will be
irrigated. The Director may request any or all of the following information for any filing seeking the reallocation of
trust water. (7-1-93)

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i. A project design and estimate of cost of development shall be submitted. For applications
appropriating more than twenty-five (25) cfs, or ten thousand (10,000) AF of storage, or generating more than five (5)
megawatts, the information shall be prepared and submitted by a qualified engineer licensed under the provisions of
Chapter 12, Title 54, Idaho Code, unless waived by the Director. The design shall be definite enough to reflect the
project’s impacts and implications as required in subsequent rules. (7-1-93)

ii. If the project proposes development for irrigation purposes, information shall be submitted on crop
rotation, including acreages, for lands when newly developed. (7-1-93)

iii. Information shall be submitted concerning the number and kinds of jobs that will be created or
eliminated as a direct result of project development including both the construction and operating phases of the
project. If jobs are seasonal, the estimated number of months per year of employment shall be submitted. (7-1-93)
iv. For applications or permits being reprocessed for more than twenty-five (25) cfs, or more than ten
thousand (10,000) AF of storage, or more than five (5) megawatts, information shall be submitted concerning the
changes to community services that will be required during the construction and operation phases of the project
including, but not limited to, changes to schools, roads, housing, public utilities and public health and safety facilities,
if any. (7-1-93)
v. Information shall be submitted concerning the source of energy for diverting and using water for
the project, the estimated instantaneous demand and total amount of energy that will be used, the efficiency of use,
and energy conservation methods. (7-1-93)

vi. Information shall be submitted concerning the location, amount, and quality of return flow water,
and any water conservation features of the proposed project. (7-1-93)

vii. If the project proposes irrigation as a use, information shall be submitted concerning the kinship, if
any, of the operator of the land to be irrigated by the project to the applicant, the location and acreage of other
irrigated lands owned, leased, or rented by the applicant, the names, addresses and number of shares held by each
shareholder if the applicant is a corporation, evidence of tax-exempt status if a corporation is so claiming, a soil
survey prepared in accordance with the U.S. Soil Conservation Service irrigatable land classification system, and a
schedule for bringing into production the project lands. (7-1-93)

041. -- 044. (RESERVED)

045. EVALUATION CRITERIA (RULE 45).

01. Criteria for Evaluating All Applications to Appropriate Water. The Director will use the
following criteria in evaluating whether an application to appropriate unappropriated water or trust water should be
approved, denied, approved for a smaller amount of water or approved with conditions. (7-1-93)

a. Criteria for determining whether the proposed use will reduce the quantity of water under existing
water rights. A proposed use will be determined to reduce the quantity of water under an existing water right (i.e.,
injure another water right) if: (7-1-93)

i. The amount of water available under an existing water right will be reduced below the amount
recorded by permit, license, decree or valid claim or the historical amount beneficially used by the water right holder
under such recorded rights, whichever is less. (7-1-93)
ii. The holder of an existing water right will be forced to an unreasonable effort or expense to divert
his existing water right. Protection of existing groundwater rights are subject to reasonable pumping level provisions
of Section 42-226, Idaho Code; or (7-1-93)

iii. The quality of the water available to the holder of an existing water right is made unusable for the
purposes of the existing user’s right, and the water cannot be restored to usable quality without unreasonable effort or
expense. (7-1-93)

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iv. An application that would otherwise be denied because of injury to another water right may be
approved upon conditions which will mitigate losses of water to the holder of an existing water right, as determined
by the Director. (7-1-93)

v. The provisions of Subsection 045.01.a.v. are not intended to require compensation or mitigation for
loss of flow to holders of subordinated hydropower rights or those from which trust water is reallocated. (7-1-93)

b. Criteria for determining whether the water supply is insufficient for the proposed use. The water
supply will be determined to be insufficient for the proposed use if water is not available for an adequate time interval
in quantities sufficient to make the project economically feasible (direct benefits to applicant must exceed direct costs
to applicant), unless there are noneconomic factors that justify application approval. In assessing such noneconomic
factors, the Director will also consider the impact on other water rights if the project is abandoned during construction
or after completion, the impact on public resource values, and the cost to local, state and federal governments of such
an abandonment. (7-1-93)

c. Criteria for determining whether the application is made in good faith. The criteria requiring that
the Director evaluate whether an application is made in good faith or whether it is made for delay or speculative
purposes requires an analysis of the intentions of the applicant with respect to the filing and diligent pursuit of
application requirements. The judgment of another person’s intent can only be based upon the substantive actions that
encompass the proposed project. Speculation for the purpose of this rule is an intention to obtain a permit to
appropriate water without the intention of applying the water to beneficial use with reasonable diligence. Speculation
does not prevent an applicant from subsequently selling the developed project for a profit or from making a profit
from the use of the water. An application will be found to have been made in good faith if: (7-1-93)

i. The applicant shall have legal access to the property necessary to construct and operate the
proposed project, has the authority to exercise eminent domain authority to obtain such access, or in the instance of a
project diverting water from or conveying water across land in state or federal ownership, has filed all applications
for a right-of-way. Approval of applications involving Desert Land Entry or Carey Act filings will not be issued until
the United States Department of Interior, Bureau of Land Management has issued a notice classifying the lands
suitable for entry; and (7-1-93)

ii. The applicant is in the process of obtaining other permits needed to construct and operate the
project; and (7-1-93)
iii. There are no obvious impediments that prevent the successful completion of the project. (7-1-93)

d. Criteria for determining whether the applicant has sufficient financial resources to complete the
project. (7-1-93)

i. An applicant will be found to have sufficient financial resources upon a showing that it is
reasonably probable that funding is or will be available for project construction or upon a financial commitment letter
acceptable to the Director. This showing is required as described in Subsection 040.05.c. or at the time the hearing
provided by Subsection 040.05.c. is conducted. (7-1-93)

ii. A governmental entity will be determined to have satisfied this requirement if it has the taxing,
bonding or contracting authority necessary to raise the funds needed to commence and pursue project construction in
accordance with the construction schedule. (7-1-93)

e. Criteria for determining whether the project conflicts with the local public interest. The Director
will consider the following, along with any other factors he finds to be appropriate, in determining whether the
project will conflict with the local public interest: (7-1-93)
i. The effect the project will have on the economy of the local area affected by the proposed use as
determined by the employment opportunities, both short and long term, revenue changes to various sectors of the
economy, short and long term, and the stability of revenue and employment gains; (7-1-93)

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ii. The effect the project will have on recreation, fish and wildlife resources in the local area affected
by the proposed use; and (7-1-93)
iii. Compliance with applicable air, water and hazardous substance standards, and compliance with
planning and zoning ordinances of local or state government jurisdictions. (7-1-93)

iv. An application which the Director determines will conflict with the local public interest will be
denied unless the Director determines that an over-riding state or national need exists for the project or that the
project can be approved with conditions to resolve the conflict with the local public interest. (7-1-93)

02. Criteria for Evaluating Whether a Proposed Use of Trust Water Will Cause a Significant
Reduction. Reference: Section 42-203C(1), Idaho Code and Subsection 025.02.b. For purposes of reallocating trust
water made available by the Snake River water rights agreement, an application for permit or a permit being
reprocessed, will be presumed to not cause a significant reduction if the Director determines that it complies with
both the individual and cumulative tests for evaluating significant reduction as provided in Subsections 045.02.a. and
045.02.b. (7-1-93)

a. Individual test for evaluating significant reduction. A proposed use will be presumed to not cause a
significant reduction if when fully developed and its impact is fully felt, the use will individually reduce the flow of
the Snake River measured at Murphy Gauge by not more than two (2) acre-feet per day. An irrigation project of two
hundred (200) acres or less located anywhere in the Snake River Basin above Murphy Gauge proposing to use trust
water is presumed to not reduce the flow at Murphy Gauge by more than two (2) acre-feet per day. The presumption
of this section is not applicable to applications or permits to be reprocessed which the Director determines to be part
of a larger development. (7-1-93)

b. Cumulative test for evaluating significant reduction. A proposed use will be presumed to not cause
a significant reduction, if the use, when fully developed and its impact is fully felt and when considered cumulatively
with other existing uses and other uses reasonably likely to exist within twelve (12) months of the proposed use, will
not deplete the flow of Snake River measured at Murphy Gauge by more than: (7-1-93)

i. Forty thousand (40,000) acre-feet per calendar year when considered with all other uses approved
for development of trust water during that calendar year; (7-1-93)

ii. Forty thousand (40,000) acre-feet per calendar year using a four (4) year moving average when
considered with all other uses approved for development of trust water during that four (4) year period; and (7-1-93)

iii. Twenty thousand (20,000) acre-feet per calendar year from filings approved for reallocation of trust
water which meet the criteria of Subsection 045.02.a. (the individual test for evaluating significant reduction).
(7-1-93)

c. The Director will determine on a case-by-case basis from available information whether a permit to
be reprocessed or an application for trust water which exceeds the flow depletion limits of Subsection 045.02, or one
which meets the flow depletion limits but has been protested, will cause a significant reduction. In making this
determination, the Director will consider: (7-1-93)

i. The amount of the reduction in hydropower generation that the proposed use will cause
individually and cumulatively with other uses expected to be developed within twelve (12) months of the proposed
use as compared to the existing hydropower generation output of the affected facility or facilities. (7-1-93)

ii. The relative importance of the affected hydropower facility or facilities to other sources of
electrical power generation available to the holder of the facility or facilities. (7-1-93)

iii. The timing of the reduction in hydropower generation both on an annual basis and on a long-term
basis considering the lag time between the beginning of diversion by the proposed use and the resulting reduction in
hydropower generation. (7-1-93)
iv. The effect of the reduction in hydropower generation on the unit cost of hydropower from the

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facility or facilities and the average cost of electrical power offered by the holder of the facility. (7-1-93)

v. The terms of contracts, mortgages, or regulatory permits and licenses which require the holder of
the hydropower generation facility to retain the capability to produce hydroelectric power at a specific level. (7-1-93)

d. Other provisions of these rules not withstanding, applications or permits to be reprocessed

proposing a direct diversion of water for irrigation purposes from the Snake River between Milner Dam and Swan
Falls Dam or from tributary springs in this reach are presumed to cause a significant reduction. (7-1-93)
e. Other provisions of these rules not withstanding, applications or permits to be reprocessed for
DCMI purposes are presumed to not cause a significant reduction. (7-1-93)

03. Criteria for Evaluating Public Interest. If the Director determines that a proposed use of trust
water held by the state pursuant to Section 42-203B(5), Idaho Code, will cause a significant reduction, the Director
will consider the criteria of Section 42-203C(2), Idaho Code, before acting on the application or permit being
reprocessed. The Director shall consider and balance the relative benefits and detriments for each factor required to
be weighed under Section 42-203C(2), Idaho Code, to determine whether a proposed reduction of the amount of
water available for power production serves the greater public interest. The Director shall evaluate whether the
proposed use sought in the permit being reprocessed or the application will provide the greater benefit to the people
of the state of Idaho when balanced against other uses for the same water resource. In evaluating the public interest
criteria, the Director will use the following guidelines: (7-1-93

a. The Director will consider the potential benefits both direct and indirect, and that the proposed use
would provide to the state and local economy. The economic appraisal shall be based upon generally accepted
economic analysis procedures which uniformly evaluate the following factors within the state of Idaho and the county
or counties directly affected by the project: (7-1-93)

i. Direct project benefits. (7-1-93)

ii. Indirect benefits including net revenues to the processing, transportation, supply, service and
government sectors of the economy. (7-1-93)

iii. Direct project costs, to include the opportunity cost of previous land use. (7-1-93)

iv. Indirect project costs, including verifiable costs to government in net lost revenue and increased
regulation costs, verifiable reductions in net revenue resulting from losses to other existing instream uses, and the
increased cost of replacing reduced hydropower generation from unsubordinated hydropower generating facilities.
(7-1-93)

b. The Director will consider the impact the proposed use would have upon the electric utility rates in
the state of Idaho, and the availability, foreseeability and cost of alternative energy sources to ameliorate such impact.
These evaluations will include the following considerations: (7-1-93)

i. Projections of electrical supply and demand for Idaho and the Pacific Northwest made by the
Bonneville Power Administration and the Northwest Power Planning Council and information available from the
Idaho Public Utilities Commission or from the electric utility from whose water right trust water is being reallocated.
(7-1-93)

ii. The long term reliability of the substitute source and the cost of alternatives including the resulting
impact on electrical rates. (7-1-93)

c. The Director will consider whether the proposed use will promote the family farming tradition in
the state of Idaho. For purposes of this evaluation, the Director will use the following factors. (7-1-93)

d. If the total land to be irrigated by the applicant, including currently owned and leased irrigated land
and land proposed to be irrigated in the application and other applications and permits of the applicant, do not exceed
nine hundred sixty (960) acres, the application will be presumed to promote the family farming tradition. (7-1-93)

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e. If the requirement of Subsection 045.03.c.i. is not met, the Director will consider the extent the
applicant conforms to the following characteristics: (7-1-93)

i. The farming operation developed or expanded as a result of the application is operated by the
applicant or a member of his family (spouse, parents or grandparents, lineal descendents, including those that are
adopted, lineal descendents of parents; and spouse of lineal descendents); (7-1-93)

ii. In the event the application is filed in the name of a partnership, one or more of the partners shall
operate the farming operation; and (7-1-93)

iii. If the application is in the name of a corporation, the number of stockholders does not exceed
fifteen (15) persons, and one or more of the stockholders operates the farming operation unless the application is
submitted by an irrigation district, drainage district, canal company or other water entity authorized to appropriate
water for landowners within the district or for stockholders of the company all of whom shall meet the family farming
criteria. (7-1-93)

f. The Director will consider the promotion of full economic and multiple use development of the
water resources of the state of Idaho. In this regard, the extent to which the project proposed complies with the
following factors will be considered: (7-1-93)

i. Promotes and conforms with the adopted State Water Plan; (7-1-93)

ii. Provides for coordination of proposed and existing uses of water to maximize the beneficial use of
available water supplies; (7-1-93)

iii. Utilizes technology economically available to enhance water and energy use efficiency; (7-1-93)

iv. Provides multiple use of the water, including multipurpose storage; (7-1-93)

v. Allows opportunity for reuse of return flows; (7-1-93)

vi. Preserves or enhances water quality, fish, wildlife, recreation and aesthetic values; (7-1-93)

vii. Provides supplemental water supplies for existing uses with inadequate supplies. (7-1-93)

g. The Director will consider whether a proposed use, which includes irrigation, will conform to a
staged development policy of up to twenty thousand (20,000) acres per year or eighty thousand (80,000) acres in any
four (4) year period in the Snake River drainage above Murphy Gauge. In applying this criteria, the Director will
consider the following: (7-1-93)
i. “Above Murphy gauge” means the Snake River and any of its surface or groundwater tributaries
upstream from Murphy gauge which gauge is located on the Snake River approximately four (4) miles downstream
from Swan Falls Dam from which trust water is to be reallocated; (7-1-93)

ii. Twenty thousand (20,000) acres per year or eighty thousand (80,000) acres per four (4) year period
is a four (4) year moving average of Twenty thousand (20,000) acres/year of permits issued during a calendar year for
irrigation development. If permits for development of less than twenty-thousand (20,000) acres are issued in a year,
additional development in excess of twenty-thousand (20,000) acres can be permitted in succeeding years. Likewise,
if more than twenty thousand (20,000) acres is permitted in one year (recognizing that a single large project could
exceed twenty thousand (20,000) acres) the permitted development in succeeding years must be correspondingly less
to maintain no greater than a twenty thousand (20,000) acres/year average for any four (4) year period; (7-1-93)

iii. The criteria of Subsection 045.03.g. applies to multiple-use projects with irrigation as a principal
purpose. Projects which use irrigation as only an incidental purpose, such as the land treatment of waste, shall not be
included within this policy; and (7-1-93)

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iv. An application determined by the Director to be otherwise approvable but found to exceed the
acreage limitations, when considered with other applications approved for development, may be approved with
conditions providing for the construction of project works and beneficial use of water to be commenced in a future
year. (7-1-93)

h. No single public interest criterion will be entitled to greater weight than any other public interest
criterion. (7-1-93)

i. Until such time as the studies prescribed in Policy 32 I of the State Water Plan are completed and
accepted by the Idaho Water Resource Board, applications and permits reprocessed which propose to divert water to
surface storage from the Snake River and surface tributaries upstream from Murphy Gauging Station shall be
presumed to satisfy the public interest criteria of Section 42-203C(2), Idaho Code. Applications or reprocessed
permits which are approved prior to completion of the studies, will not be subject to additional reprocessing. (7-1-93)
j. Applications for permit for trust water sources filed prior to July 1, 1985, for projects for which
diversion and beneficial use was complete prior to October 1, 1984, are presumed to satisfy the public interest criteria
of Section 42-203C(2), Idaho Code. (7-1-93)

k. Applications or permits to be reprocessed proposing a direct diversion of water for irrigation

purposes from the Snake River between Milner Dam and Swan Falls Dam or from tributary springs in this reach are
presumed not to be in the public interest as defined by Section 42-203C, Idaho Code. Such proposals, are presumed to
prevent the full economic and multiple use of water in the Snake River Basin and to adversely affect hydropower
availability and electrical energy rates in the state of Idaho. (7-1-93)

l. Proposed DCMI uses which individually do not have a maximum consumptive use of more than
two acre-feet/day are presumed to meet the public interest criteria of Section 42-203C(2), Idaho Code, unless
protested. (7-1-93)

046. -- 049. (RESERVED)

050. CONDITIONS OF APPROVAL (RULE 50).

01. Issuance of Permits with Conditions. The Director may issue permits with conditions to insure
compliance with the provisions of Title 42, Chapter 2, Idaho Code, other statutory duties, the public interest, and
specifically to meet the criteria of Section 42-203A, Idaho Code, and to meet the requirements of Section 42-203C,
Idaho Code, to the fullest extent possible including conditions to promote efficient use and conservation of energy
and water. (7-1-93)

02. Requirements to Mitigate Impact of Flow Depletion. Permits to be reprocessed or applications

approved to appropriate water from the main stem of the Snake River between Milner and Murphy gauging station
for diversion to off-stream storage during the period November l to March 3l shall include requirements to mitigate,
in accordance with Policy 32 I of the State Water Plan, the impact of flow depletions on downstream generation of
hydropower. (7-1-93)
03. Applications and Existing Permits That Are Junior and Subordinate. Applications and
existing permits approved for hydropower generation shall be junior and subordinate to all rights to the use of water,
other than hydropower, within the state of Idaho that are initiated later in time than the priority of the application or
existing hydropower permit. A subordinated permit shall not give rise to any right or claim against future rights to the
use of water, other than hydropower, within the state of Idaho initiated later in time than the priority of the application
or existing hydropower permit. A permit issued for hydropower purposes shall contain a term condition on the
hydropower use in accordance with Section 42-203B(6), Idaho Code. (7-1-93)

04. Permanent Flow Measuring Device Requirement. Applications approved for on-stream storage
reservoirs will, unless specifically waived by the Director, require permanent flow measuring devices both upstream
and downstream from the reservoir. (7-1-93)

05. Well Spacing and Well Construction Requirements. Applications approved for diversion of

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groundwater may include conditions requiring well spacing and well construction requirements. (7-1-93)

06. Reprocessed Permits. Permits reprocessed pursuant to Section 42-203D, Idaho Code, may be
cancelled, modified or conditioned by the Director to make the permit comply in every way with any permit that
would be issued for the same purpose based upon a new application processed under these rules. (7-1-93)

07. Conditioning of Permits. The Director may condition permits to require commencement of
construction of project works within a designated time interval not to exceed one year and completion of construction
of project works and beneficial use of water within a time interval not to exceed five (5) years. (7-1-93)

08. Voiding Approval of Permit. Permits may be conditioned to authorize the Director to void the
approval of the permit if he determines that the applicant submitted false or misleading information on the application
or supporting documents. (7-1-93)
09. Retetion of Jurisdiction. The Director may condition permits to retain jurisdiction to insure
compliance with the design, construction and operation provisions of the permit. (7-1-93)

10. Insuring Minimum Stream Flows and Prior Rights. The Director may condition permits to
insure that established minimum stream flows and prior rights including prior rights reserved by federal law are not
injured. (7-1-93)

11. Insuring Compliance with Water Quality Standards. The Director may condition permits to
insure compliance with Idaho’s water quality standards. (7-1-93)

12. Insuring Assignment of Interest. The Director may condition a permit issued for trust water to
require that any amendment (Section 42-211, Idaho Code), transfer (Section 42-222, Idaho Code), or assignment of
interest in the permit by any method whatsoever shall not result in the project failing to meet the public interest
criteria of Section 42-203C, Idaho Code except, however, lenders obtaining title to the project through default will
have a reasonable period of time, as determined by the Director, to meet such criteria or to convey the project to a
person or entity that does meet the criteria. (7-1-93)

051. -- 054. (RESERVED)

055. MORATORIUM (RULE 55).

01. Applications for Permit. (7-1-93)

a. The Director may cease to approve applications for permit in a designated geographical area upon
finding a need to: (7-1-93)

i. Protect existing water rights; (7-1-93)

ii. Insure compliance with the provisions of Chapter 2, Title 42, Idaho Code; and (7-1-93)
iii. Prevent reduction of flows below a minimum stream flow which has been established by the
Director or the board pursuant to applicable law. (7-1-93)
b. Notice of the Director’s action to cease application approval will be by: (7-1-93)

i. Summary Order served by certified mail upon the then existing affected applicants; and (7-1-93)

ii. Publication of the order for three (3) consecutive weeks in a newspaper or newspapers of general
circulation in the area affected. (7-1-93)

c. Objections to the DirectorDirector’s action shall be considered under the department’s adopted
Rules of Procedure and applicable law. (7-1-93)

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02. Permits. (7-1-93)

a. To the extent a permit has not been developed, the Director may cancel, or modify permits for
which proof of beneficial use has not been submitted in a designated geographical area as an extension of Subsection
055.01. (7-1-93)

b. Notice of the Director’s action to cancel or modify permits shall be by: (7-1-93)

i. Summary Order served by certified mail upon the affected permit holders in the designated area.
(7-1-93)

ii. Publication of the order for three (3) consecutive weeks in a newspaper or newspapers of general
circulation in the area. (7-1-93)
c. Objections to the Director’s action shall be considered under the department’s adopted Rules of
Procedure and applicable law. (7-1-93)

056. -- 999. (RESERVED)

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APPENDIX A

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APPENDIX B

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APPENDIX C

Section 055 Page 24

 Sub ject Index
A Unappropriated Water 3
Appendix A, Milner Dam to Swan Falls
Dam Reach 22
E
Evaluation Criteria 14
Appendix B, Suggested Irrigation
Criteria for Evaluating All
Seasons in Idaho 23
Applications to Appropriate
Appendix C, Administrative Regions of
Water 14
the IDWR 24
Criteria for Evaluating Public
Application Requirements 5
Interest 17
Amended Applications 8
Criteria for Evaluating Whether a
Effect of an Application 6
Proposed Use of Trust Water
General Provisions 5
Will Cause a Significant
Requirements for Applications to
Reduction 16
Be Acceptable for Filing 6
C G
General Description Of The Procedure
Conditions Of Approval 19
To Be Used For Allocation 3
Applications and Existing Permits
Applications to Appropriate
That Are Junior and
Unappropriated Water & Water
Subordinate 19
Held in Trust 4
Conditioning of Permits 20
Applications to Appropriate Water
Insuring Assignment of
From Sources Held by State in
Interest 20
Trust 4
Insuring Compliance with Water
Quality Standards 20 L
Insuring Minimum Stream Flows Location & Nature of Trust Water 4
& Prior Rights 20 Snake River Water Rights
Issuance of Permits with Agreement 4
Conditions 19 Sources of Public Water Not Trust
Reprocessed Permits 20 Water 5
Requirements to Mitigate Impact Trust Water Created by State
of Flow Depletion 19 Action 5
Retetion of Jurisdiction 20
Voiding Approval of Permit 20 M
Well Spacing & Well Construction Moratorium 20
Requirements 19 Applications for Permit 20
Permits 21
D
Definitions, IDAPA 37.03.08 2 P
Acre-Foot (AF) 2 Permanent Flow Measuring Device
Advertisement 2 Requirement, Conditions of
Applicant 2 Approval 19
Application for Permit 2 Processing Applications For Permit &
Beneficial Use 3 Reprocessing Permits 8
Board 2 Additional Information
Cubic Foot Per Second (CFS) 3 Requirements 12
DCMI 3 Burden of Proof 11
Department 3 General 8
Director 3 Protests, Intervention, Hearings &
Legal Subdivision 3 Appeals 11
Permit or Water Right Permit 3 Public Notice Requirement 9
Priority, or Priority of
Appropriation, or Priority
Date 3
Project Works 3
Single Family Domestic
Purposes 3
Subordinated Water Right 3
Trust Water 3

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