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Department of
Water Resources

Department of
Water Resources

Statutes, Rules, & Hearing Procedures

Terminology

  • Reducing or restricting the use of surface or groundwater based on priority date.
  • A request from a water right holder for the administration of water rights under the prior appropriation doctrine. See IDAPA 37.03.11 for more detail.
  • A document submitted by a junior-priority groundwater right holder and approved by the Director (as provided in Rule 043) that identifies actions and measures to prevent, or compensate holders of senior-priority water rights for, material injury caused by the diversion and use of water by the junior-priority groundwater rights holders within an area having a common groundwater supply. See IDAPA 37.03.11 for more detail.

Statutes & Rules

Listed below are legal considerations regarding water rights, irrigation, and floodplain management in Idaho.

Idaho Constitution
Idaho Statute
Idaho Administrative Code

IDWR Rulemaking

The Idaho Administrative Procedure Act (Title 67, Chapter 52, Idaho Code), which governs rulemaking in Idaho, defines rulemaking as the process for the formulation, adoption, amendment, or repeal of a rule. This process can be driven by a number of different events but two of the most common are the enactment of a new or amended statute by our state Legislature or the enactment of a new law or regulation by the federal government. However, a citizen's petition to amend or adopt a new rule, a change in an agency's process or procedure requirements, a court order, or the need to simply update the rule can cause an agency to initiate rulemaking and set the process in motion.

In Idaho, rules are typically proposed by state departments, opened for public comment, and in many instances, reviewed by a board of citizens appointed by the governor. If approved by the board, the rules are then sent to the Legislature for review. If the Legislature does not act on the rules, they automatically take effect at the end of the legislative session. However, legislative action affirmatively approving a rule is required when a rule implements a new fee or revises and existing fee. Rules are compiled in administrative codes and people who do not adhere to the rules may be subject to enforcement actions. Rules specifically governing the actions of the Idaho Water Resource Board (IWRB) and the Idaho Department of Water Resources (IDWR) are contained in Chapter 37 of the Idaho Administrative Code.

During the 2020 Idaho Legislative session, the IWRB and IDWR submitted two omnibus rulemaking dockets to the Idaho Legislature for review and approval. The first docket, No. 37-0000-1900, contained all non-fee rule chapters in IDAPA 37. The second docket, No. 37-0000-1900F, contained all fee rule chapters in IDAPA 37. The Legislature approved Docket No. 37-0000-1900 but adjourned without approving Docket No. 37-0000-1900F. Below is a summary of the status of IDWR's recent rulemaking.

Docket No. 37-0000-1900, Final Rule
  • Rulemaking initiated to adopt and re-publish existing and previously approved and codified non-fee rule chapters under IDAPA 37.

    Status: Approved by the Second Session of the 65th Idaho Legislature. The Rule became final and effective March 20, 2020.
    • Docket No. 37-0000-1900F, Pending Fee Rule
  • Rulemaking initiated to adopt and re-publish existing and previously approved and codified fee rule chapters under IDAPA 37.

    Status: The Second Session of the 65th Idaho Legislature was adjourned without the passage of a concurrent resolution adopting Docket No. 37-0000-1900F. On February 21, 2020, the IWRB and IDWR adopted all IDAPA 37 fee rules as temporary to be effective upon adjournment sine die of the legislative session, in the event the legislature did not adopt Docket No. 37-0000-1900F. See Docket No. 37-0000-2000F below.
    • Docket No. 37-0000-2000F, Temporary Fee Rule
  • Rulemaking initiated to adopt IDAPA 37 fee rule chapters as they were presented in the pending rule docket adopted by the IWRB and IDWR in 2019 and submitted to the Second Regular Session of the 65th Idaho Legislature for review as a temporary rule.

    Status: Temporary fee rules adopted by the IWRB and IDWR on February 21, 2020. Effective March 20, 2020. These Rules were published in the Administrative Bulletin Vol. 20-4SE, April 15, 2020.

    • Docket No. 37-0000-2000F, Proposed Fee Rule
  • Rulemaking initiated to adopt IDAPA 37 fee rule chapters as they were presented in the pending rule docket adopted by the IWRB and IDWR in 2019 and submitted to the Second Regular Session of the 65th Idaho Legislature for review as a temporary rule.

    Status: Proposed fee rules were published in the Special Administrative Bulletin Vol. 20-9SE, September 16, 2020 (page 1946).

    • To talk to someone about the IWRB and IDWR's rulemaking please contact Mat Weaver, IDWR's Rules Review Officer by calling 208-287-4800, or by emailing mathew.weaver@idwr.idaho.gov.

    Hearing Procedures

    IDWR conducts two general types of hearings:

    • public hearings — All interested parties may participate.
    • contested case hearings — Only designated parties may participate as full parties.

    Generally, both hearing types are conducted by a hearing officer who is appointed by the IDWR Director.

    Hearing Officer

    The hearing officer is "neutral" in a contested case matter and hears both sides of the contested matter. However, the hearing officer can consider only certain criteria which has been established by law in contested matters—even though other matters of concern may exist to the parties.

    Procedures

    In a contested case hearing, parties may represent themselves or may choose to be represented by legal counsel. The hearing is electronically recorded which serves as the official record. Testimony of witnesses must be given under oath and may be cross-examined by opposing parties. The hearing officer allows redirect testimony and re-cross examination of the testimony. Exhibits may be introduced and offered for admission.

    In administrative hearings, the strict rules of evidence are relaxed. The applicant generally has the burden of proof and proceeds first with its presentation including testimony of witnesses and offered exhibits. Following the applicant's presentation, the protestant(s) may present their case including testimony of witnesses and offered exhibits.

    The hearing officer has an obligation to create an orderly hearing record while at the same time providing full opportunity to the parties to be heard and present their case. The hearing officer will not continue the hearing to allow parties to obtain exhibits or to gather witnesses which the parties did not think they might need.

    Official Record

    The hearing officer "officially notices" certain information such as the application, past decisions of the department, water right records, reports, well driller reports, water measurements, and flow records. An Official Notice means that the information noticed becomes part of the record without the necessity of having that information specifically offered as exhibits in the hearing. This notice results in a more time efficient hearing.

    The hearing officer generally pre-marks proposed exhibits prior to the start of the hearing. Hence, parties do not need to pre-mark exhibits. Parties must bring to the hearing a copy of each proposed exhibit for the hearing officer and for every full party in the proceeding.

    Recommended & Final Order

    After the hearing, the hearing officer issues a "Recommended Order" based on the evidence and testimony presented at the hearing. Any party in the matter may file a "Petition for Reconsideration, Exceptions, and Briefs" in connection with the Recommended Order.

    After reviewing and considering the filed petitions, exceptions, and briefs, the IDWR Director issues a "Final Order." Any party may file a petition for reconsideration of the Final Order and may seek review of a Final Order in district court.