Amends existing law to provide for the municipal use of geothermal water.

LEGISLATURE OF THE STATE OF IDAHO Sixty-eighth Legislature Second Regular Session - 2026 IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 676 BY RESOURCES AND CONSERVATION COMMITTEE AN ACT1 RELATING TO GEOTHERMAL WATER; AMENDING SECTION 42-202, IDAHO CODE, TO RE-2 VISE PROVISIONS REGARDING APPLICATIONS TO APPROPRIATE WATER; AMENDING3 SECTION 42-202B, IDAHO CODE, TO REVISE DEFINITIONS; AMENDING SECTION4 42-222, IDAHO CODE, TO REVISE PROVISIONS REGARDING CHANGE IN POINT OF5 USE; AND DECLARING AN EMERGENCY AND PROVIDING AN EFFECTIVE DATE.6

Be It Enacted by the Legislature of the State of Idaho:7

SECTION 1. That Section 42-202, Idaho Code, be, and the same is hereby8 amended to read as follows:9 42-202. APPLICATION TO APPROPRIATE WATER -- CONTENTS -- FILING FEES --10 DISPOSITION OF FEES -- RECORD OF RECEIPTS. (1) For the purpose of regulat-11 ing the use of the public waters and of establishing by direct means the pri-12 ority right to such use, any person, association or corporation hereafter13 intending to acquire the right to the beneficial use of the waters of any14 natural streams, springs or seepage waters, lakes or ground water, or other15 public waters in the state of Idaho, shall, before commencing of the con-16 struction, enlargement or extension of the ditch, canal, well, or other dis-17 tributing works, or performing any work in connection with said construction18 or proposed appropriation or the diversion of any waters into a natural chan-19 nel, make an application to the department of water resources for a permit20 to make such appropriation. Provided however, if the use of the diversion21 works or irrigation system is represented by shares of stock in a corporation22 or if such works or system is owned or managed by an irrigation district, no23 such application may be approved by the director of the department of water24 resources without the consent of such corporation or irrigation district.25 Such application must set forth:26 (a) The name and post-office address of the applicant.27 (b) The source of the water supply.28 (c) The nature of the proposed use or uses and the period of the year29 during which water is to be used for such use or uses.30 (d) The location of the point of diversion and description of the pro-31 posed ditch, channel, well or other work and the amount of water to be32 diverted and used.33 (e) The time required for the completion of construction of such works34 and application of the water to the proposed use.35 (2) An application proposing an appropriation of water by a municipal36 provider for reasonably anticipated future needs shall be accompanied by37 sufficient information and documentation to establish that the applicant38 qualifies as a municipal provider and that the reasonably anticipated fu-39 ture needs, the service area, and the planning horizon are consistent with40 the definitions and requirements specified in this chapter. The service41 area need not be described by legal description nor by description of every42

2 intended use in detail, but the area must be described with sufficient in-1 formation to identify the general location where the water under the water2 right is to be used and the types and quantity of uses that generally will3 be made. An application for reasonably anticipated future needs for or in-4 cluding geothermal heating and cooling shall include sufficient information5 and documentation to demonstrate where and how injection of the diverted low6 temperature geothermal water is or will be accomplished.7 (3) Whenever it is desired to appropriate and store flood or winterflow8 waters, the applicant shall specify in acre feet the quantity of such flood9 or winterflow waters which he intends to store, but for irrigation purposes10 he shall not claim more than five (5) acre feet of stored water per acre of11 land to be irrigated, nor, in the event of the filing of an application claim-12 ing both normal flow and flood water and winterflow water, shall the total13 amount of water claimed exceed the equivalent of a continuous flow during the14 irrigation season of more than one (1) cubic foot per second for each fifty15 (50) acres of land to be irrigated, or more than five (5) acre feet of stored16 water for each acre of land to be irrigated.17 (4) The application shall be accompanied by a plan and map of the pro-18 posed works for the diversion and application of the water to a beneficial19 use, showing the character, location and dimensions of the proposed reser-20 voirs, dams, canals, ditches, pipelines, wells and all other works proposed21 to be used by them in the diversion of the water, and the area and location of22 the lands proposed to be irrigated, or location of place of other use.23 (5) If the application involves more than twenty-five (25) cubic feet24 per second of water or the development of more than five hundred (500) the-25 oretical horsepower, or impoundment of water in a reservoir with an active26 storage capacity in excess of ten thousand (10,000) acre feet, the applicant27 may be required by the director of the department of water resources to fur-28 nish a statement of the financial resources of the corporation, association,29 firm or person making the application, and the means by which the funds nec-30 essary to construct the proposed works are to be provided, and the estimated31 cost of construction; and if such application is made by a corporation, the32 amount of its capital stock, how much thereof has been actually paid in, and33 the names and places of residence of its directors; and if for the generation34 of power or any other purpose than irrigation or domestic use, the purpose35 for which it is proposed to be used, the nature, location, character, capac-36 ity and estimated cost of the works, and whether the water used is to be and37 will be returned to the stream, and if so, at what point on the stream.38 (6) In case the proposed right of use is for agricultural purposes, the39 application shall give the legal subdivisions of the land proposed to be ir-40 rigated, with the total acreage to be reclaimed as near as may be; provided,41 that no one shall be authorized to divert for irrigation purposes more than42 one (1) cubic foot of water per second of the normal flow for each fifty (50)43 acres of land to be so irrigated, or more than five (5) acre feet of stored44 water per annum for each acre of land to be so irrigated, unless it can be45 shown to the satisfaction of the department of water resources that a greater46 amount is necessary. Provided further, that the plan of irrigation submit-47 ted shall provide for the distribution of water to within not more than one48 (1) mile of each legal subdivision of the land proposed to be reclaimed by the49 use of such water; provided also, that in the case of all ditches designed to50

3 have a capacity of ten (10) cubic feet per second or less, such map showing1 the location of such ditch, and the place of use of such water, or the loca-2 tion of the lands to be irrigated, may be upon blanks furnished by the depart-3 ment of water resources.4 (7) No application shall be accepted and filed by the department of wa-5 ter resources until the applicant shall have deposited with the department a6 filing fee as in this chapter provided.7 (8) All moneys received by the department of water resources under the8 provisions of this chapter shall be deposited with the state treasurer, and9 such sums as may be necessary shall be available for the payment of the ex-10 penses of the department of water resources incurred in carrying out the pro-11 visions of this chapter.12 (9) Such expense shall be paid by the state controller in the manner13 provided by law, upon vouchers duly approved by the state board of examin-14 ers, for the work performed under the direction of the department of water15 resources. The department of water resources shall keep a record of all fil-16 ing fees received in connection with applications for permits to appropriate17 public waters.18 (10) Provided further, that rights initiated prior to the enactment of19 this amendment, so far as it pertains to flood and winterflow waters, shall20 not be affected thereby.21 (11) Provided further, that water rights held by municipal providers22 prior to July 1, 1996, shall not be limited thereby.23

SECTION 2. That Section 42-202B, Idaho Code, be, and the same is hereby24 amended to read as follows:25 42-202B. DEFINITIONS. Whenever used in this title, the term:26 (1) "Consumptive use" means that portion of the annual volume of water27 diverted under a water right that is transpired by growing vegetation, evap-28 orated from soils, converted to nonrecoverable water vapor, incorporated29 into products, or otherwise does not return to the waters of the state. Con-30 sumptive use is not an element of a water right. Consumptive use does not31 include any water that falls as precipitation directly on the place of use.32 Precipitation shall not be considered to reduce the consumptive use of a33 water right. "Authorized consumptive use" means the maximum consumptive use34 that may be made of a water right. If the use of a water right is for irriga-35 tion, for example, the authorized consumptive use reflects irrigation of the36 most consumptive vegetation that may be grown at the place of use. Changes in37 consumptive use do not require a transfer pursuant to section 42-222, Idaho38 Code.39 (2) "Digital boundary" means the boundary encompassing and defining an40 area consisting of or incorporating the place of use or permissible place of41 use for a water right prepared and maintained by the department of water re-42 sources using a geographic information system in conformance with the na-43 tional standard for spatial data accuracy or succeeding standard.44 (3) "Local public interest" is defined as the interests that the people45 in the area directly affected by a proposed water use have in the effects of46 such use on the public water resource.47

4 (4) "Municipality" means a city incorporated under section 50-102,1 Idaho Code, a county, or the state of Idaho acting through a department or2 institution.3 (5) "Municipal provider" means:4 (a) A municipality that provides water for municipal purposes to its5 residents and other users within its service area;6 (b) Any corporation or association holding a franchise to supply water7 for municipal purposes, or a political subdivision of the state of Idaho8 authorized to supply water for municipal purposes, and which does sup-9 ply water, for municipal purposes to users within its service area; or10 (c) A corporation or association which supplies water for municipal11 purposes through a water system regulated by the state of Idaho as a12 "public water supply" as described in section 39-103(12), Idaho Code.13 (6)(a) "Municipal purposes" refers to water for residential, com-14 mercial, industrial, irrigation of parks and open space, and related15 purposes, excluding use of water from geothermal sources for heating,16 which that a municipal provider is entitled or obligated to supply to17 all those users within a service area, including those located outside18 the boundaries of a municipality served by a municipal provider, for19 residential use, commercial use, industrial use, irrigation of parks20 and open spaces, geothermal heating and cooling, and related purposes,21 or a combination thereof.22 (b)(i) Geothermal heating and cooling are considered "municipal23 purposes" if:24 1. It is provided by a municipality from a low temperature25 geothermal water source, as that term is defined in section26 42-230(a)(1), Idaho Code;27 2. The water use is non-consumptive under normal operating28 conditions; and29 3. The use otherwise complies with section 42-233, Idaho30 Code.31 (ii) A municipality is obligated to supply geothermal heating and32 cooling only to those users approved for service in accordance33 with its local codes and policies.34 (7) "Planning horizon" refers to the length of time that the department35 determines is reasonable for a municipal provider to hold water rights to36 meet reasonably anticipated future needs. The length of the planning hori-37 zon may vary according to the needs of the particular municipal provider.38 (8) "Reasonably anticipated future needs" refers to future uses of39 water by a municipal provider for municipal purposes within a service area40 which, on the basis of population and other planning data, are reasonably41 expected to be required within the planning horizon of each municipality42 within the service area not inconsistent with comprehensive land use plans43 approved by each municipality. Reasonably anticipated future needs shall44 not include uses of water within areas overlapped by conflicting comprehen-45 sive land use plans. Reasonably anticipated future needs for geothermal46 heating and cooling require injection of diverted low temperature geother-47 mal water back into the same aquifer from which it was diverted and shall be48 considered when determining what needs will be expected within the planning49 horizon.50

5 (9) "Service area" means that area within which a municipal provider is1 or becomes entitled or obligated to provide water for municipal purposes.2 For a municipality, the service area shall correspond to its corporate lim-3 its, or other recognized boundaries, including changes therein after the4 permit or license is issued. The service area for a municipality may also5 include areas outside its corporate limits, or other recognized boundaries,6 that are within the municipality's established planning area if the con-7 structed delivery system for the area shares a common water distribution8 system with lands located within the corporate limits. For a municipal9 provider that is not a municipality, the service area shall correspond to the10 area that it is authorized or obligated to serve, including changes therein11 after the permit or license is issued.12

SECTION 3. That Section 42-222, Idaho Code, be, and the same is hereby13 amended to read as follows:14 42-222. CHANGE IN POINT OF DIVERSION, PLACE OF USE, PERIOD OF USE, OR15 NATURE OF USE OF WATER UNDER ESTABLISHED RIGHTS -- FORFEITURE AND EXTENSION16 -- APPEALS. (1) Any person, entitled to the use of water whether represented17 by license issued by the department of water resources, by claims to water18 rights by reason of diversion and application to a beneficial use as filed19 under the provisions of this chapter, or by decree of the court, who shall20 desire to change the point of diversion, place of use, period of use or na-21 ture of use of all or part of the water, under the right shall first make ap-22 plication to the department of water resources for approval of such change.23 Such application shall be upon forms furnished by the department and shall24 describe the right licensed, claimed or decreed which is to be changed and25 the changes which are proposed, and shall be accompanied by the statutory26 filing fee as in this chapter provided. Upon receipt of such application it27 shall be the duty of the director of the department of water resources to ex-28 amine same, obtain any consent required in section 42-108, Idaho Code, and if29 otherwise proper to provide notice of the proposed change in a similar man-30 ner as applications under section 42-203A, Idaho Code. Such notice shall ad-31 vise that anyone who desires to protest the proposed change shall file no-32 tice of protests with the department within ten (10) days of the last date33 of publication. Upon the receipt of any protest, accompanied by the statu-34 tory filing fee as provided in section 42-221, Idaho Code, it shall be the35 duty of the director of the department of water resources to investigate the36 same and to conduct a hearing thereon. He shall also advise the watermaster37 of the district in which such water is used of the proposed change and the wa-38 termaster shall notify the director of the department of water resources of39 his recommendation on the application, and the director of the department40 of water resources shall not finally determine the action on the applica-41 tion for change until he has received from such watermaster his recommenda-42 tion thereof, which action of the watermaster shall be received and consid-43 ered as other evidence. For applications proposing to change only the point44 of diversion or place of use of a water right in a manner that will not change45 the effect on the source for the right and any other hydraulically-connected46 sources from the effect resulting under the right as previously approved,47 and that will not affect the rights of other water users, the director of the48

6 department of water resources shall give only such notice to other users as1 he deems appropriate.2 When the nature of use of the water right is to be changed to municipal3 purposes and some or all of the right will be held by a municipal provider4 to serve reasonably anticipated future needs, the municipal provider shall5 provide to the department sufficient information and documentation to es-6 tablish that the applicant qualifies as a municipal provider and that the7 reasonably anticipated future needs, the service area and the planning hori-8 zon are consistent with the definitions and requirements specified in this9 chapter. The service area need not be described by legal description nor by10 description of every intended use in detail, but the area must be described11 with sufficient information to identify the general location where the wa-12 ter under the water right is to be used and the types and quantity of uses that13 generally will be made. An application for reasonably anticipated future14 needs for or including geothermal heating and cooling shall include suffi-15 cient information and documentation to demonstrate where and how injection16 of the diverted low temperature geothermal water is or will be accomplished.17 When a water right or a portion thereof to be changed is held by a munic-18 ipal provider for municipal purposes, as defined in section 42-202B, Idaho19 Code, that portion of the right held for reasonably anticipated future needs20 at the time of the change shall not be changed to a place of use outside the21 service area, as defined in section 42-202B, Idaho Code, or to a new nature of22 use.23 The director of the department of water resources shall examine all the24 evidence and available information and shall approve the change in whole,25 or in part, or upon conditions, provided no other water rights are injured26 thereby, the change does not constitute an enlargement in use of the origi-27 nal right, the change is consistent with the conservation of water resources28 within the state of Idaho and is in the local public interest as defined in29 section 42-202B, Idaho Code, the change will not adversely affect the local30 economy of the watershed or local area within which the source of water for31 the proposed use originates, in the case where the place of use is outside32 of the watershed or local area where the source of water originates, and the33 new use is a beneficial use, which in the case of a municipal provider shall34 be satisfied if the water right is necessary to serve reasonably anticipated35 future needs as provided in this chapter. The director may consider consump-36 tive use, as defined in section 42-202B, Idaho Code, as a factor in determin-37 ing whether a proposed change would constitute an enlargement in use of the38 original water right. The director shall not approve a change in the nature39 of use from agricultural use where such change would significantly affect40 the agricultural base of the local area. The transfer of the right to the use41 of stored water for irrigation purposes shall not constitute an enlargement42 in use of the original right even though more acres may be irrigated, if no43 other water rights are injured thereby. A copy of the approved application44 for change shall be returned to the applicant and he shall be authorized upon45 receipt thereof to make the change and the original water right shall be pre-46 sumed to have been amended by reason of such authorized change. In the event47 the director of the department of water resources determines that a proposed48 change shall not be approved as provided in this section, he shall deny the49 same and forward notice of such action to the applicant by certified mail,50

7 which decision shall be subject to judicial review as hereafter set forth.1 Provided however, minimum stream flow water rights may not be established2 under the local public interest criterion, and may only be established pur-3 suant to chapter 15, title 42, Idaho Code.4 (2) All rights to the use of water acquired under this chapter or other-5 wise shall be lost and forfeited by a failure for the term of five (5) years6 to apply it to the beneficial use for which it was appropriated and when any7 right to the use of water shall be lost through nonuse or forfeiture such8 rights to such water shall revert to the state and be again subject to appro-9 priation under this chapter; except that any right to the use of water shall10 not be lost through forfeiture by the failure to apply the water to benefi-11 cial use under certain circumstances as specified in section 42-223, Idaho12 Code. The party asserting that a water right has been forfeited has the bur-13 den of proving the forfeiture by clear and convincing evidence.14 (3) Upon proper showing before the director of the department of water15 resources of good and sufficient reason for nonapplication to beneficial use16 of such water for such term of five (5) years, the director of the department17 of water resources is hereby authorized to grant an extension of time extend-18 ing the time for forfeiture of title for nonuse thereof, to such waters for a19 period of not to exceed five (5) additional years.20 (4) Application for an extension shall be made before the end of the21 five (5) year period upon forms to be furnished by the department of water re-22 sources and shall fully describe the right on which an extension of time to23 resume the use is requested and the reasons for such nonuse and shall be ac-24 companied by the statutory filing fee; provided that water rights protected25 from forfeiture under the provisions of section 42-223, Idaho Code, are ex-26 empt from this requirement.27 (a) Upon the receipt of such application it shall be the duty of the di-28 rector of the department of water resources to examine the same and to29 provide notice of the application for an extension in the same manner as30 applications under section 42-203A, Idaho Code. The notice shall fully31 describe the right, the extension which is requested and the reason for32 such nonuse and shall state that any person desiring to object to the33 requested extension may submit a protest, accompanied by the statutory34 filing fee as provided in section 42-221, Idaho Code, to the director of35 the department of water resources within ten (10) days of the last date36 of publication.37 (b) Upon receipt of a protest it shall be the duty of the director of38 the department of water resources to investigate and conduct a hearing39 thereon as in this chapter provided.40 (c) The director of the department of water resources shall find from41 the evidence presented in any hearing, or from information available to42 the department, the reasons for such nonuse of water and where it ap-43 pears to the satisfaction of the director of the department of water re-44 sources that other rights will not be impaired by granting an extension45 of time within which to resume the use of the water and good cause ap-46 pearing for such nonuse, he may grant one (1) extension of five (5) years47 within which to resume such use.48 (d) In his approval of the application for an extension of time under49 this section the director of the department of water resources shall set50

8 the date when the use of water is to be resumed. Sixty (60) days before1 such date the director of the department of water resources shall for-2 ward to the applicant at his address of record a notice by certified mail3 setting forth the date on which the use of water is to be resumed and a4 form for reporting the resumption of the use of the water right. If the5 use of the water has not been resumed and report thereon made on or be-6 fore the date set for resumption of use such right shall revert to the7 state and again be subject to appropriation, as provided in this sec-8 tion.9 (e) In the event the director of the department of water resources de-10 termines that a proposed extension of time within which to resume use of11 a water right shall not be approved as provided in this section, he shall12 deny same and forward notice of such action to the applicant by certi-13 fied mail, which decision shall be subject to judicial review as here-14 after provided.15 (5) Any person or persons feeling themselves aggrieved by the determi-16 nation of the department of water resources in approving or rejecting an ap-17 plication to change the point of diversion, place, period of use or nature18 of use of water under an established right or an application for an exten-19 sion of time within which to resume the use of water as provided in this sec-20 tion, may, if a protest was filed and a hearing held thereon, seek judicial21 review pursuant to section 42-1701A(4), Idaho Code. If no protest was filed22 and no hearing held, the applicant may request a hearing pursuant to section23 42-1701A(3), Idaho Code, for the purpose of contesting the action of the di-24 rector and may seek judicial review of the final order of the director fol-25 lowing the hearing pursuant to section 42-1701A(4), Idaho Code.26

SECTION 4. An emergency existing therefor, which emergency is hereby27 declared to exist, this act shall be in full force and effect on and after28 July 1, 2026.29