Idaho Admin. Code r. 37.03.08.045

Current through September 2, 2024

Section 37.03.08.045 - EVALUATION CRITERIA

01.Criteria for Evaluating All Applications to Appropriate Water. The Director will use the following criteria in evaluating whether an application should be approved, denied, approved for a smaller amount of water, or approved with conditions.

a. Reduction of water available under an existing water right (injury) criteria. A proposed use will be determined to reduce the quantity of water under an existing water right if:

i. The amount of water available under an existing water right will be reduced below the amount recorded by permit, license, decree, claim, or the historical amount beneficially used by the water right holder of such permit, license, decree, or claim, whichever is less;

ii. The holder of an existing water right will be forced to an unreasonable effort or expense to divert water for an existing water right. The reasonable pumping level provisions of Section 42-226, Idaho Code, govern protection of existing ground water rights; or

iii. The proposed use would make the quality of the water available unusable by an existing water right and could not be restored to usable quality without unreasonable effort or expense.

iv. An application that would otherwise be denied because of injury to another water right may be approved upon conditions that mitigate losses of water for an existing water right, as determined by the Director.

v. If an existing water right is subordinated to future beneficial uses which include the application's proposed use, the existing subordinated water right cannot be injured.

b. Sufficiency of water supply. 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 accomplish the proposed beneficial use.

c. Good faith criteria. The evaluation of whether an application is not made in good faith or whether it is made for delay or speculative purposes requires an analysis of the applicant's intent to follow application requirements and diligently pursue permit development. Speculation for this rule is an intention to obtain a water right permit without the intention of putting the water to beneficial use with reasonable diligence. Speculation does not prevent an applicant from subsequently selling the project for a profit or from making a profit from the use of the water. An application will be found to have not been made in good faith if:

i. In the instance the land necessary to construct and operate the proposed project is privately owned and not in the applicant's ownership, the applicant does not have an interest in the land at the time of the application filing or the authority to exercise eminent domain; or

ii. In the instance of a project diverting water from or conveying water across federally owned land, the applicant has not filed the appropriate form to request access; or

iii. The applicant is not in the process of obtaining other permits, licenses, and approvals needed to construct and operate the project; or

iv. There are obvious impediments that prevent the successful completion of the project.

d. Financial resources criteria. The Director will find an applicant does not have sufficient financial resources:

i. Upon a showing that it is not reasonably probable that funding is or will be available for project construction; or

ii. If the applicant is a governmental entity without taxing, bonding, or contracting authority necessary to raise the funds needed to commence and pursue project construction consistent with the proposed project construction schedule.

e. Local public interest criteria. The Director will consider the following in determining whether the project will conflict with the local public interest:

i. The direct effect the project will have on public water resources that are of interest to people in the local area directly affected by the proposed water use including, but not limited to, fish and wildlife habitat, aquatic life, recreation, aesthetic beauty, transportation, navigation, water quality, and the effect of such use on the availability of water for alternative water uses that might be made within a reasonable time; and

ii. Whether the proposed water use is consistent with Idaho's policy of securing the maximum use and benefit from the public water resources.

iii. Although the Director has independent responsibility for the overall assessment and balancing of factors weighing on the local public interest, the Director will give due regard to expertise of other state and federal regulatory agencies charged with assessing individual issues under Subparagraphs 045.01.e.i. and ii., recognizing that it is not the primary job of the Department to protect all aspects of the health and welfare of Idaho's citizens and visitors.

iv. The Director may condition approval of an application on compliance with orders, rules, requirements, and authorizations issued or to be issued by state and federal regulatory agencies with jurisdiction over subject matter relevant to the local public interest.

v. The Director will deny an application that conflicts with the local public interest unless the project can be approved with conditions to resolve the local public interest conflict.

f. Conservation of water resources within the state of Idaho criteria. The application will be determined contrary to the conservation of water resources if:

i. A diversion rate greater than two hundredths (0.02) cfs per acre is proposed, but is not necessary for irrigation use;

ii. Design, construction, operation techniques, or mechanical equipment will not be employed to achieve a water use efficiency consistent with contemporary engineering, industry, and regulatory standards;

iii. A proposed storage facility will exceed a seepage rate of zero point two (0.2) feet per day. This criterion does not apply if the proposed storage facility will be used as an infiltration basin for ground water recharge, an excavated pond filled by intercepting ground water, or an impoundment for irrigation use not exceeding five (5) af of stored water per acre of irrigation; or

iv. The proposed irrigation use is not consistent with the requirements of Section 42-204A, Idaho Code.

g. In the case where the place of use is outside the watershed or local area where the source of water originates, the project effect on the local economy or local area criteria. The Director will consider the extent of adverse effect on the local economy of the watershed or local area within which the source of water for the proposed use originates.

h. Idaho State Water Plan criteria. The Director will consider whether the proposed diversion and use of water complies with the Idaho State Water Plan, including plans developed for specific geographic areas.

02.Criteria for Evaluating Whether an Application for Reallocation of Trust Water in the Swan Falls Trust Water Area Will Cause a Significant Reduction Under Section 42-203C(1), Idaho Code. The Director will find an application for a reallocation of trust water within the Swan Falls Trust Water Area will cause a significant reduction when the proposed use, individually or cumulatively with other existing uses and uses reasonably likely to exist within twelve months of the proposed use, would significantly reduce the amount of trust water available to the user for hydropower generation purposes under a water right held in trust. The Director will presume an application for a reallocation of trust water within the Swan Falls Trust Water Area will not cause a significant reduction if the Director determines that the application meets both the individual and cumulative tests for evaluating significant reduction under Paragraphs 045.02.a. and 045.02.b.

a. Individual test. The Director will presume:

i. A proposed use, when fully developed and its impact is fully felt, that individually does not reduce the flow of the Snake River at the Murphy Gage by more than two (2) acre-feet per day does not cause a significant reduction; and

ii. An irrigation project of two hundred (200) acres or less diverting water from a source other than the Snake River or springs directly tributary to the Snake River located in the Swan Falls Trust Water Area will not reduce the flow at Murphy Gage by more than two (2) acre-feet per day and does not cause a significant reduction. However, this presumption is not applicable to an application the Director determines to be part of a larger development.

b. Cumulative test. The Director will presume a proposed use meets the cumulative test 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 the Snake River measured at Murphy Gage by more than:

i. Forty thousand (40,000) af per calendar year when considered with all other uses approved for development of trust water during that calendar year;

ii. Forty thousand (40,000) af 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

iii. Twenty thousand (20,000) af per calendar year from filings approved for reallocation of trust water that meet the criteria of Paragraph 045.02.a.

c. The presumptions in Subsection 045.02, Paragraph 045.02.a., and Paragraph 045.02.b. may be rebutted by the protestant. In rebutting the presumptions that an application does not cause a significant reduction, the Director may consider:

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.

ii. The relative importance of the affected hydropower facility to other sources of electrical power generation available to the holder of the facility.

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.

iv. The effect of the reduction in hydropower generation on the unit cost of hydropower from the facility and the average cost of electrical power offered by the facility holder.

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

03.Criteria for Evaluating Whether an Application for Reallocation of Trust Water in the Swan Falls Trust Water Area is in the Public Interest Under Section 42-203C(2), Idaho Code. If the Director determines that an application for reallocation of trust water within the Swan Falls Trust Water Area will cause a significant reduction, the Director will consider the criteria of Section 42-203C(2), Idaho Code, before approving or denying the application. The Director will presume an application is in the public interest if it proposes a use consistent with Paragraph 045.03.f. The Director will presume an application is not in the public interest if it proposes a use consistent with Paragraph 045.03.g. In evaluating the public interest criteria, no single public interest criterion will be entitled to greater weight than any other public interest criterion. When evaluating the public interest criteria, the Director will consider:

a. The potential benefits, both direct and indirect, that the proposed use would provide to the state and local economy. The economic evaluation will be based upon generally accepted economic analysis procedures which uniformly evaluate the following factors within the state of Idaho and the county directly affected by the project:

i. Direct project benefits.

ii. Indirect benefits including net revenues to the processing, transportation, supply, service, and government sectors of the economy.

iii. 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.

b. The economic 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:

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.

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

c. Whether the proposed use will promote the family farming tradition in the state of Idaho. For purposes of this evaluation the Director will presume the application promotes the family farming tradition 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, does not exceed nine hundred sixty (960) acres. For an application proposing to divert water within the service area of a water delivery organization or to divert water through infrastructure shared by otherwise independent farming operations, the Director will evaluate this presumption on an individual basis within the relevant service area or place of use. This presumption may be rebutted by the protestant under Paragraph 040.03.c.ii. If the presumption above does not apply, the Director will consider whether the proposed use has the following characteristics:

i. The farming operation developed or expanded as a result of the application is operated by the applicant or a member of the applicant's family (spouse, parents or grandparents, lineal descendants, including those that are adopted, lineal descendants of parents, and spouse of lineal descendants);

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

iii. If the application is in the name of a corporation, the number of stockholders does not exceed fifteen (15) persons, and one (1) or more of the stockholders operates the farming operation unless the application is filed by an irrigation district, drainage district, canal company, or other entity authorized to appropriate water for landowners within the district or for stockholders of the company all of whom satisfy the presumption in Paragraph 045.03.c.

d. Whether the proposed project will promote full economic and multiple use development of the water resources of the state of Idaho:

i. Promoting and conforming with the adopted Idaho State Water Plan;

ii. Providing for coordination of proposed and existing uses of water to maximize the beneficial use of available water supplies;

iii. Utilizing technology economically available to enhance water and energy use efficiency;

iv. Providing multiple use of the water, including multipurpose storage;

v. Allowing opportunity for reuse of return flows;

vi. Preserving or enhancing water quality, fish, wildlife, recreation, and aesthetic values; or

vii. Providing supplemental water supplies for existing uses with inadequate supplies.

e. Whether a proposed irrigation development 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 Swan Falls Trust Water Area. In applying these criteria, the Director will consider the following:

i. 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 per 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 per year average for any four (4) year period;

ii. The criteria of Paragraph 045.03.e. 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, will not be included within this policy; and

iii. The Director may approve an application determined to be otherwise approvable but found to exceed the acreage limitations of Paragraph 045.03.e., when considered with other applications approved for development, with conditions prescribing the construction of project works and beneficial use of water commence in a future year.

f. The Director will presume an application is in the public interest if it proposes:

i. To store surface water from the Snake River and surface tributaries upstream from the Murphy Gage consistent with the Idaho State Water Plan; or

ii. A state of Idaho-sponsored ground water recharge project that is consistent with the Idaho State Water Plan; or

iii. Domestic, commercial, municipal, or industrial use that does not have a maximum consumptive use of more than two (2) af per day.

iv. The presumptions of Subparagraphs 045.03.f.i. through iii. may be rebutted by the protestant under Paragraph 040.03.c. In evaluating a proposed rebuttal to these presumptions, the Director may consider the criteria in Paragraphs 045.03.a. through e.

g. The Director will presume an application is not in the public interest if it proposes an irrigation project diverting water directly from the Snake River or from springs directly tributary to the Snake River in the Swan Falls Trust Water Area. 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. This presumption may be rebutted by the applicant. In evaluating a rebuttal to this presumption, the Director may consider the criteria in Paragraphs 045.03.a. through e.

Idaho Admin. Code r. 37.03.08.045

Effective July 1, 2024