Change in point of diversion, place of use, period of use, or nature of use — Application of act.
The person entitled to the use of water or owning any land to which water has been made appurtenant either by a decree of the court or under the provisions of the constitution and statutes of this state, may change the point of diversion, period of use, or nature of use, and/or may voluntarily abandon the use of such water in whole or in part on the land which is receiving the benefit of the same and transfer the same to other lands, if the water rights of others are not injured by such change in point of diversion, place of use, period of use, or nature of use, provided; if the right to the use of such water, or the use of the diversion works or irrigation system is represented by shares of stock in a corporation or if such works or system is owned and/or managed by an irrigation district, no change in the point of diversion, place of use, period of use, or nature of use of such water shall be made or allowed without the consent of such corporation or irrigation district. Any permanent or temporary change in period or nature of use in or out-of-state for a quantity greater than fifty (50) cfs or for a storage volume greater than five thousand (5,000) acre-feet shall require the approval of the legislature, except that any temporary change within the state of Idaho for a period of less than three (3) years may be approved by the director without legislative approval.
Any person desiring to make such change of point of diversion, place of use, period of use, or nature of use of water shall make application for change with the department of water resources under the provisions of section 42-222, Idaho Code. After the effective date of this act, no person shall be authorized to change the period of use or nature of use, point of diversion or place of use of water unless he has first applied for and received approval of the department of water resources under the provisions of section 42-222, Idaho Code.
Notes of Decisions
Joyce Livestock Co. v. United States, 156 P.3d 502 (Idaho 2007).
· cites it 2× “1064 (1930); I.C. § 42-108. Other than making the assertion, the United States has been unable to explain how denying its claim or affirming the water rights of Joyce Livestock will in any way lead to a monopoly of the federal rangelands.”
Application of Boyer, 248 P.2d 540 (Idaho 1952).
· cites it 7× “Pursuant to Sections 42-108 and 42-222, I.C., September 16, 1946, respondent applied to the State Reclamation Department for a certificate to transfer 10.”
City of Pocatello v. Idaho, 275 P.3d 845 (Idaho 2012).
· cites it 3× “may be claimed in the applicable general adjudication even though the person has not complied with sections 42-108 and 42-222, Idaho Code, provided no other water rights existing on the date of the change were injured and the change did not result in an enlargement of the…”
McCray v. Rosenkrance, 20 P.3d 693 (Idaho 2001).
· cites it 2× “It has not been alleged that he sought the permission of the water district as required by I.C. § 42-108, or that he made application to change the place of use with the IDWR as required by I.”
Nettleton v. Higginson, 558 P.2d 1048 (Idaho 1977).
· cites it 4× “§ 42-222(2); may have been transferred to other land which could have affected the return flow to Reynolds Creek, I.C. § 42-108, -202; or may have been acquired by adverse possession following five years of continuous adverse use, Bachman v.”
3g Ag LLC v. Idwr, 509 P.3d 1180 (Idaho 2022).
““Section 42-1425(2) of the Idaho Code provides for a transfer of an existing water right for any change made prior to the date of commencement of the [Snake River Basin Adjudication], regardless of compliance with sections 42-108 and 42-222, 8 ‘provided no other water rights…”
Beker Indus. Inc. v. Georgetown Irrigation Dist., 610 P.2d 546 (Idaho 1980).
· cites it 2× “Two months later GID filed its motion for summary judgment, on the ground that Beker had not obtained GID’s consent to change the point of diversion and place of use (I.C. § 42-108) and on the additional ground that the Director could not authorize a change in nature of use of…”
Idaho Conservation League, Inc. v. State, 911 P.2d 748 (Idaho 1995).
“may be claimed in a general adjudication even though the person has not complied with sections 42-108 and 42-222, Idaho Code, provided no other water rights existing on the date of the change were injured and the change did not result in an enlargement of the original right[,]”…”
City of Pocatello v. The State of Idaho (Idaho 2012).
· cites it 3× “may be claimed in the applicable general adjudication even though the person has not complied with sections 42-108 and 42-222, Idaho Code, provided no other water rights existing on the date of the change were injured and the change did not result in an enlargement of the…”
Bishop v. Dixon, 483 P.2d 1327 (Idaho 1971).
· cites it 8× “This question is controlled by I.C. § 42-108 which, prior to the 1969 amendment thereto which is not applicable in this case, provided: "Change in point of diversion and place of use — Application of act.”
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