Ground waters are public waters.
The traditional policy of the state of Idaho, requiring the water resources of this state to be devoted to beneficial use in reasonable amounts through appropriation, is affirmed with respect to the ground water resources of this state as said term is hereinafter defined and, while the doctrine of "first in time is first in right" is recognized, a reasonable exercise of this right shall not block full economic development of underground water resources. Prior appropriators of underground water shall be protected in the maintenance of reasonable ground water pumping levels as may be established by the director of the department of water resources as herein provided. In determining a reasonable ground water pumping level or levels, the director of the department of water resources shall consider and protect the thermal and/or artesian pressure values for low temperature geothermal resources and for geothermal resources to the extent that he determines such protection is in the public interest. All ground waters in this state are declared to be the property of the state, whose duty it shall be to supervise their appropriation and allotment to those diverting the same for beneficial use. This act shall not affect the rights to the use of ground water in this state acquired before its enactment.
Any application for a water permit that seeks to transfer ground water outside the immediate ground water basin as defined by the director of the department of water resources for the purpose of irrigating five thousand (5,000) or more acres on a continuing basis or for a total volume in excess of ten thousand (10,000) acre feet per year, the application must first be approved by the director of the department of water resources and then by the Idaho legislature. Each shall give due consideration to the local economic and ecological impact of the project or development so proposed.
Notes of Decisions
Clear Springs Foods, Inc. v. Spackman, 252 P.3d 71 (Idaho 2011).
· cites it 40× “Did the district court err in holding that the curtailment orders do not violate the full economic development provision of Idaho Code § 42-226 ? C. Did the district court err in upholding the Director’s determination that the ground water depletions caused material injury to…”
Parker v. Wallentine, 650 P.2d 648 (Idaho 1982).
· cites it 31× “Sections 1, 2 and 4 of the Act were subsequently codified as I.C. §§ 42-226, -227 and -229. As originally enacted, these provisions stated: “Section 1.”
Baker v. Ore-Ida Foods, Inc., 513 P.2d 627 (Idaho 1973).
· cites it 10× “This Court must for the first time, interpret our Ground Water Act (I.C. § 42-226 et seq.) as it relates to withdrawals of water from an underground aquifer in excess of the annual recharge rate.”
Musser v. Higginson, 871 P.2d 809 (Idaho 1994).
· cites it 6× “In his testimony at the hearing to consider whether the writ would issue, the director referred to I.C. § 42-226 and stated that “a decision has to be made in the public interest as to whether those who are impacted by groundwater development are unreasonably blocking full use…”
Am. Falls Reservoir Dist. No. 2 v. Idaho Dep't of Water Resources, 154 P.3d 433 (Idaho 2007).
· cites it 2× “” Idaho Code § 42-226 . 36. There currently is no approved and effectively operating mitigation in place to mitigate for injury, if any, to the water rights held by or for the benefit of the members of [American Falls].”
Briggs v. Golden Valley Land & Cattle Co., 546 P.2d 382 (Idaho 1976).
· cites it 4× “The district court found that the parties before it had been withdrawing water from a common aquifer that was being recharged at an average rate of 5500 acre feet per year and the court held that Idaho’s Ground Water Act, I.C. §§ 42-226 et seq., forbade the “mining” of water…”
South Valley Ground Water v. ID Dept of Water Resources, 548 P.3d 734 (Idaho 2024).
· cites it 4× “Second, IDWR argues it contradicts the declared policy of the Ground Water Act for 1880s-era surface rights to be curtailed early in the irrigation season while pumping groundwater under decades-junior rights continues unabated.”
State Ex Rerl. Tappan v. Smith, 444 P.2d 412 (Idaho 1968).
· cites it 6× “The order stated that it was issued in compliance with I.C. § 42-226 to § 42-239, inclusive. In the summer of 1964, appellants drilled the Section 11 well on their land.”
In Re Distrib. of Water to Various Water Rights, 315 P.3d 828 (Idaho 2013).
· cites it 2× “er rights held by the members of the Surface Water Coalition even though the reservoir space allocated to members of the Surface Water Coalition is full; or (2) lead to the curtailment of junior priority ground water rights, absent mitigation, anytime when the reservoir space…”
Branson v. Miracle, 687 P.2d 1348 (Idaho 1984).
· cites it 2× “I.C. § 42-226 similarly provides that ground waters are public waters subject to appropriation.”
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